STATE OF NEW JERSEY,
v.
STUART FELSEN,
Defendant-Appellant.
_____________________________
Argued November 14, 2005 - Decided
Before Judges Cuff, Holston, Jr., and Gilroy.
On appeal from the Superior Court of New Jersey, Law Division, Morris County,
No. 03-08-0919.
Robert W. Gluck argued the cause for appellant (Mandelbaum, Salsburg, Gold, Lazris, Discenza
& Steinberg, attorneys; Phillip G. Ray, on the brief).
Joseph J. D'Onofrio, Jr., Assistant Prosecutor, argued the cause for respondent (Michael M.
Rubbinaccio, Morris County Prosecutor, attorney; Joseph Connor, Jr., Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
GILROY, J.S.C. (temporarily assigned).
Defendant appeals his convictions of third-degree attempt to obtain Percocet, a controlled dangerous
substance (CDS), by fraud, N.J.S.A. 2C:35-13 and 2C:5-1 (Count One); and third-degree forgery,
N.J.S.A. 2C:21-1a(2) (Count Two). We are presented with the question, whether evidence of
defendant's intent to defraud the State's regulatory program concerning the dispensing of prescription
drugs by attempting to pass a forged prescription to a regulated pharmacy, satisfies
the statutory requirement that the individual committed the act "with a purpose to
defraud or injure" another. N.J.S.A. 2C:21-1a. We answer the question in the affirmative.
Following a jury trial, defendant was convicted on both Counts. Defendant filed a
motion for a new trial, Rule 3:20-1, asserting that the State failed to
present evidence from which the jury could reasonably have determined that he possessed
the requisite mens rea under the forgery statute. The motion was denied on
September 15, 2004. On the same date, defendant was sentenced to ninety days
incarceration at the Morris County Jail, to be served in the Sheriff's Labor
Assistance Program
See footnote 1
(SLAP), and three years probation on the conviction for attempting to
obtain a CDS by fraud (Count One). An identical sentence was imposed on
Count Two, to run concurrent with the sentence on Count One. Appropriate assessments
were also imposed. Defendant appealed. On February 4, 2005, an order was entered
in the Law Division staying the sentence pending this appeal. Except to vacate
the sentence imposed on Count Two, which should have merged with defendant's conviction
on Count One, we affirm.
In January 2002, defendant suffered severe accidental injuries, requiring him to undergo four
surgeries between January 2002, and April 2003. Following the surgeries, defendant was prescribed
Oxycontin and Percocet, and became addicted to the drugs.
On April 28, 2003, defendant's physician, Dr. Silk, delivered to defendant a completed
prescription, to which a blank prescription form was accidentally attached. On the same
date, defendant filled in the blank prescription form for ninety 10-mg Percocet pills
in the name of a fictitious person, Steven Williams; forged Dr. Silk's signature;
and presented the same to a clerk at the Morris Plains Pharmacy. The
clerk presented the prescription to the pharmacist who recognized that the signature was
forged. The clerk attempted to stall defendant while the police were summoned, but
defendant left the store. Approximately five hours later, defendant returned to the pharmacy
and was recognized by the clerk. The clerk again attempted to stall defendant,
but defendant left the pharmacy a second time. The police arrived and apprehended
defendant in his automobile outside the pharmacy. Defendant initially denied attempting to pass
the forged prescription, but later admitted to the act. Defendant advised the police
he had left the pharmacy because he felt remorseful, knowing that his actions
were "illegal" and envisioning the possible impact that his actions could have on
his family and employment, not because he thought he "was going to be
apprehended or that [the pharmacist] called the police."
On appeal, defendant argues:
POINT I.
THE CONVICTION OF FORGERY SHOULD HAVE MERGED INTO THE CONVICTION OF ATTEMPT TO
OBTAIN[] A CONTROLLED DANGEROUS SUBSTANCE BY FRAUD. (NOT RAISED BELOW).
POINT II.
DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL ON THE COUNT OF FORGERY
OR A NEW TRIAL DUE TO A LACK OF PROOF REGARDING HIS PURPOSE
TO DEFRAUD AND LACK OF PROOF REGARDING AN INJURED PARTY.
A. THERE IS NO EVIDENCE EVEN INDICATING THAT DEFENDANT INTENDED TO DEFRAUD OR INJURE
ANYONE.
B. THERE IS NO EVIDENCE THAT THERE WAS OR COULD HAVE BEEN AN INJURED
PARTY AS A RESULT OF DEFENDANT'S ACTIONS.
POINT III.
THE COURT GAVE THE JURY INADEQUATE INSTRUCTIONS ON THE REQUISITE MENS REA FOR
A FORGERY CONVICTION.
POINT IV.
THE COURT'S FAILURE TO TAILOR THE CHARGE ON RENUNCIATION TO THE FACTS OF
THE CASE CONSTITUTED PLAIN ERROR WARRANTING A REVERSAL. (NOT RAISED BELOW).
POINT V.
THE COURT SHOULD REVERSE THE JURY'S VERDICT ON COUNT ONE BECAUSE [THE] PROSECUTOR'S
WRONGFUL AND PREJUDICIAL REMARKS MADE DURING SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL.
(NOT RAISED BELOW).
POINT VI.
THE COURT SHOULD REVERSE THE JURY'S VERDICT ON COUNT ONE AS TAINTED BY
THE IMPROPER VERDICT ON COUNT TWO.
We have reviewed each of these arguments in light of the record and
the pertinent law, and we conclude that the arguments presented under Points IV,
V, and VI are without merit. R. 2:11-3(e)(2). We find it necessary only
to discuss defendant's arguments under Points I, II, and III.
Defendant argues that the trial judge erred in denying his motion for judgment
of acquittal made at the end of the State's case, asserting that the
State had not proffered any evidence from which the jury could have inferred
that he possessed the requisite mens rea under the forgery statute.
At the close of the State's case, or after all evidence has been
presented, the court must, on motion by defendant or on its own initiative,
grant a motion to acquit if "the evidence is insufficient to warrant a
conviction." R. 3:18-1. When a motion is made pursuant to Rule 3:18-1, the
trial judge must deny the motion if "viewing the State's evidence in its
entirety, be that evidence direct or circumstantial," and giving the State the benefit
of all reasonable inferences, "a reasonable jury could find guilt beyond a reasonable
doubt." State v. Reyes,
50 N.J. 454, 458-59 (1967). An appellate court will
apply the same standard as the trial court to decide if a judgment
of acquittal was warranted. State v. Moffa,
42 N.J. 258, 263 (1964).
Although it is undisputed that defendant wrote a prescription for Percocet prescribed to
a fictitious person, forged Dr. Silk's name, and attempted to fill the prescription
by presenting it to a registered pharmacist, defendant contends that under the forgery
statute, N.J.S.A. 2C:21-1a, the State was required to prove that he intended to
injure or prejudice the rights of another, and the State failed to present
such evidence. Defendant contends that the State's proofs failed because the only person
who possibly could have been injured had the transaction been concluded, would have
been the pharmacist, and only if defendant failed to pay for the drugs.
Defendant asserts that it was always his intention to pay the pharmacist for
the drugs, and therefore, the State's proofs failed to establish that he intended
to injure or prejudice another person. We disagree.
N.J.S.A. 2C:21-1a provides, in pertinent part:
A person is guilty of forgery if, with purpose to defraud or injure
anyone, or with knowledge that he is facilitating a fraud or injury to
be perpetrated by anyone, the actor:
. . . .
(2) Makes, completes, executes, authenticates, issues or transfers any writing so that it
purports to be the act of another who did not authorize that act
or of a fictitious person, or to have been executed at a time
or place or in a numbered sequence other than was in fact the
case, or to be a copy of an original when no such original
existed.
The State is required to prove that a defendant who "makes, completes, [or]
executes . . . any writing so that it purports to be the
act of another who did not authorize that act" commits the act "with
[the] purpose to defraud or injure anyone." N.J.S.A. 2C:21-1a. We conclude that the
jury was presented with sufficient evidence to infer that defendant acted with the
purpose of defrauding another ("anyone") because the State may be an "injure[d]" person
under the statute. State v. Johnson,
115 N.J. Super. 6, 9 (App. Div.
1971); State v. Longo,
132 N.J.L. 515, 519 (Sup. Ct.), aff'd,
133 N.J.L. 301 (E. & A. 1945). In Johnson, the defendant was convicted of uttering
a forged driver's license to a police officer, contrary to N.J.S.A. 2A:109-1, the
predecessor forgery statute. The pre-code statute provided:
Any person who, with intent to prejudice, injure, damage or defraud any other
person:
Falsely makes, alters, forges or counterfeits any record or authentic matter of a
public nature or character, or any printed or written instrument or indorsement, acceptance,
transfer or assignment thereof; or
b. Utters or publishes as true, any such false, altered, forged or counterfeited matter,
knowing the same to be false, altered, forged or counterfeited
Is guilty of a high misdemeanor.
On appeal, the defendant argued that the trial judge should have granted a
motion for judgment of acquittal because "there was no proof that anyone was
defrauded by said utterance." Johnson, supra, 115 N.J. Super. at 8. This court
rejected that argument, concluding "the 'person' defrauded within the meaning of forgery statutes
can be a governmental unit." Id. at 9. However, we reversed the conviction
in Johnson, determining that the charge of uttering a forged driver's license should
have been prosecuted under the motor vehicle statutes, not the general forgery statute.
In Longo, a Hudson County election official voted in the Republican primary, but,
in order to conceal the party affiliation, changed the voting records to reflect
that he had voted in the Democratic primary, and was convicted of forgery.
On appeal, the defendant argued that there was no intent to injure a
person. The court disagreed, stating:
We think an intent to prejudice is clearly inferable from the factual situation
presented in this case. The legislature has, by the election laws, provided for
the office of Commissioner of Registration and has provided that the record of
votes cast by citizens in primary elections be kept, an incident of which
is a notation of the party ballot voted by each such voter. It
is the established public policy that such record be kept and that it
be kept honestly and accurately. The altering or falsification of such a record
is at least prejudicial to and a fraud upon the State.
[Longo, supra, 132 N.J.L. at 519.]
On the other hand, in State v. Weigel,
194 N.J. Super. 451, 462
(App. Div. 1984), this court distinguished Johnson and Longo, and determined that the
State was not an "injured person" under the forgery statute because the State
did not have a direct interest in the matter. Here, defendant similarly contends
that the State is too far removed from the transaction for defendant to
be found to have intended to injure the State. We determine otherwise.
Control, sale, and use of prescription drugs are highly regulated matters in the
State of New Jersey. N.J.S.A. 2C:35-1 to -5.3. Control over the manner in
which CDS is prescribed by medical providers and dispensed upon prescription by regulated
pharmacists is part of the State's overall regulatory scheme controlling the use and
sale of CDS. See N.J.S.A. 24:21-1 to -53 (New Jersey Controlled Dangerous Substance
Act); N.J.S.A. 45:14-40 to -80 (New Jersey Pharmacy Practice Act); N.J.S.A. 45:9-22.19 (prescription
of Schedule II CDS); and N.J.A.C. 8:65-1.1 to -11.7 (regulations pertaining to CDS).
"A prescription for a controlled dangerous substance may be issued only by an
individual [licensed] practitioner." N.J.A.C. 8:65-7.3(a). "The responsibility for the proper prescribing and dispensing
of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests
with the pharmacist who fills the prescription." N.J.A.C. 8:65-7.4(a). We hold that the
State has a direct interest in protecting its highly regulatory scheme controlling the
prescription, sale, and use of CDS, and therefore, the State is a proper
injured "person" under the forgery statute when a defendant attempts to pass a
forged prescription to a regulated pharmacy. We are satisfied that the jury was
presented with sufficient evidence to infer that defendant acted with the purpose of
defrauding the State's regulatory scheme governing the dispensing of CDS.
Defendant, while acknowledging Johnson and Longo, requests that we reject their holdings, citing
State v. Raymo, 419 So.2d 858 (La. 1982). We decline the invitation.
In Raymo, like here, a defendant was charged under Louisiana's general forgery statute
after forging a doctor's name to a prescription and attempting to use it
to secure drugs for her personal use. On appeal from conviction of the
charge, the Louisiana Supreme Court was presented with the question of "whether forgery
may be committed without intent to injure or prejudice the rights of another."
Id. at 858. The Court reversed, determining that "[t]here is no evidence that
she attempted or intended to obtain either medical services from the doctor or
the pharmacist without paying for them. She certainly intended to deceive the pharmacist,
but she did not intend to injure or prejudice anyone's rights." Id. at
860. Although Justice Lemmon's dissenting opinion in Raymo raised the issue of the
State being an injured or defrauded party, see id. at 861 n.2, the
majority never raised nor discussed the issue. Because New Jersey courts have already
recognized that the State may be a proper injured "person" under the forgery
statute, Johnson, supra, 115 N.J. Super. at 9, and Longo, supra, 132 N.J.L.
at 519, when the State has a direct interest in the matter, Weigel,
supra, 194 N.J. Super. at 462, we determine Raymo to be of little
precedential value.
Defendant also contends that the judge failed to adequately define the requisite mens
rea for forgery in the jury instructions. On the issue of mens rea,
the charge provided:
The second element that the State must prove beyond a reasonable doubt is
that the defendant acted with purpose to defraud or injure, or with knowledge
that the defendant is facilitating a fraud or injury.
A person acts purposefully with respect to the nature of his conduct, or
the result of that conduct if it is his conscious object to engage
in conduct of that nature, or to cause such a result.
A person acts purposefully with respect to attendant circumstances if the person is
aware of the existence of such circumstances, or believes or hopes that they
exist[.] ["W]ith purpose,["] ["]design,["] ["]with design,["] or equivalent terms have the same meaning.
A person acts knowingly with respect to the nature of his conduct or
the attendant circumstances if he is aware that his conduct is of that
nature, or that such circumstances exist or he is aware of a high
probability of their existence.
A person acts knowingly with respect to the result of his conduct if
he is aware that it is practically certain that his conduct will cause
such a result. ["]Knowing[,"] with knowledge[,"] or equivalent terms have the same meaning.
To defraud means to deprive a person of property or any interest, estate,
or right by deceit, artifice, trickery, or cheat. To injure means to cause
any damage that may ensue to the good name, standing, position, or general
reputation of the purported author of the statement. It may also mean to
misrepresent, or injuriously affect the sentiments, opinions, conduct, character, prospects, interests, or rights
of another.
Purposefully or knowingly are states of mind and cannot be seen and can
only be determined by inference from conduct, words, or acts. Therefore, it is
not necessary that witnesses be produced by the State to testify that a
defendant said he purposefully or knowingly did something. His purpose or knowledge may
be gathered from his acts, and his conduct, and from all he did
and said at a particular time, and place, and from all the surrounding
circumstances in the testimony given.
Defendant contends that the "model jury charge does not adequately distinguish between the
act of being fraudulent, i.e.[,] using an artifice of deceit to accomplish a
purpose, and an intent to defraud, i.e.[,] to harm or injure." Defendant asserts
that a proper charge would have instructed the jury that in order to
find him guilty, "they must find that he had a purpose to harm
some person or entity." Defendant also contends that the statutory phrase "'with knowledge
that he is facilitating a fraud or injury to be perpetrated by anyone'
is not applicable to persons who act alone," and therefore, the State was
required to prove "an intent" to defraud. He asserts that a "knowing" state
of mind only suffices when the actor works with others.
Correct charges are essential for a fair trial. State v. Collier,
90 N.J. 117, 122 (1982). A jury instruction is "a road map to guide the
jury and without an appropriate charge a jury can take a wrong turn
in its deliberations." State v. Martin,
119 N.J. 2, 15 (1990). The applicable
mens rea portion of the forgery statute provides:
A person is guilty of forgery if, with purpose to defraud or injure
anyone, or with knowledge that he is facilitating a fraud or injury to
be perpetrated by anyone, the actor . . . .
[N.J.S.A. 2C:21-1 (emphasis added).]
The judge instructed the jury that in order to convict, the jury must
find that defendant acted with a purpose to defraud or knowledge that he
was facilitating a fraud. By the plain language of the statute, the requisite
mens rea for forgery is "with purpose to defraud" or "with knowledge that
he is facilitating a fraud." While the phrase "to be perpetrated by anyone"
is primarily directed at multi-party frauds, it does not exclude the perpetrator who
acts with knowledge individually. The actor himself/herself falls within the category of "anyone."
Accordingly, "knowledge" that the actor's conduct will facilitate his/her own fraud is sufficient.
We find no error in the jury instruction or in the charge.
Defendant's argument under Point I is not contested by the State. The State
concedes that the convictions of forgery and attempt to obtain a CDS by
fraud should have been merged for sentencing because the elements essential to convict
for forgery were integral to convict on the attempt charge. We concur. See
State v. Cole,
120 N.J. 321, 325-30 (1990). We vacate the sentence on
Count Two, and remand to the trial court to amend the judgment of
conviction. The merger of the two convictions will not affect defendant's term of
incarceration to be served at the Morris County Jail in SLAP because defendant's
sentences were to be served concurrently. However, any assessments imposed for the conviction
on Count Two must be vacated.
The convictions and the sentence on Count One are affirmed; the stay of
the sentence on Count One is vacated; the sentence imposed on Count Two
is vacated; and we remand for amendment of the judgment of conviction in
accordance with this opinion.
Footnote: 1
The Sheriff's Labor Assistance Program is a community-service program run by the
Morris County Sheriff.
A-