CAPE MAY COURT HOUSE - A state appellate panel has ruled that a jury will be able to hear from an undercover police officer about a conversation she had about painkillers with Dr. John Costino in his North Wildwood office.
On April 12, 2007, the undercover officer, with a recording device in her purse, met with Costino and told him she was an exotic dancer and had no pain "but wanted something that would help her relax."
Court documents show that Costino took a medical history from her, listened to her heart with a stethoscope and gave her a prescription for 30 oxycodone tablets.
Attorney Glenn Zeitz, representing Costino, had argued before the appellate panel that that conversation, which was recorded without Costino's knowledge, should be barred from trial.
The appellate court agreed that a jury should not hear the recording of the conversation, but it found the jury could hear testimony about the conversation directly from the officer.
The panel found the taped conversation, made before Prosecutor Robert Taylor had authorized the interception of the officer's conversations with Costino, should not be heard, noting the officer was a Class II special law-enforcement officer from Little Egg Harbor Township, Ocean County, operating outside her jurisdiction and beyond the scope of her state-mandated length of employment at the time.
She will, however, be allowed to tell a jury what took place.
The appellate court also found that a jury will be allowed to hear six other conversations that were recorded following the April 12, 2007, meeting.
According to the court's decision issued Thursday, the case stems from a 2005 investigation initiated by the Drug Enforcement Administration into overprescribing of oxycodone by Costino.
One of Costino's former employees told the DEA and Cape May County Prosecutor's Office Detective George Hallett that Costino gave her prescription medication without conducting a physical exam.
According to the court documents, the employee also told investigators that "patients were routinely instructed by defendant to come to a side door of the office where they would pay $75 in cash and receive a refill of their medication without a physical exam being performed."
Costino, who had his license revoked in July 2009, is charged with nine counts of distribution of a controlled dangerous substance in the third-degree, one count of distribution of CDS in the second degree, nine counts of distribution within 1,000 feet of school property in the third degree and seven counts of health care claims fraud in the second degree.
Zeitz, reached by telephone Thursday, said he had no comment on the case other than, "We're continuing to pursue all legal remedies."
Costino also said he had no comment at this time.
Taylor, meanwhile, said he welcomed the court's decision.
"We are pleased with the appellate decision that allows the state to use the recorded conversations," Taylor said.
Contact Trudi Gilfillian: