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Judge dismisses 124-count indictment against nurse alleged to have stolen drugs from Watertown hospital

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WATERTOWN — State Supreme Court Judge James P. McClusky has dismissed a 124-count indictment against a Samaritan Medical Center nurse accused of unlawfully dispensing medications from an automated dispenser.

In a ruling issued Monday, Judge McClusky said that evidence presented to a grand jury investigating the matter against Carson F. Fanning, Richland, relied too heavily on hearsay testimony, which is inadmissible in court.

Mr. Fanning was charged with 31 counts each of first-degree falsifying business records, fifth-degree criminal possession of stolen property, petit larceny and prohibited acts under state Public Health law. He had been arraigned on the counts in Jefferson County Court and pleaded not guilty.

The indictment alleged 31 instances in which Mr. Fanning made false entries into the hospital’s automated medication dispensing system for the purpose of stealing drugs.

Mr. Fanning’s attorney, Anthony M. Neddo, Watertown, moved to have the indictment dismissed for, among other reasons, insufficiency of evidence.

In his ruling, Judge McClusky wrote that in proving each set of charges, prosecutors relied on an administrator at Samaritan who provided testimony based on a computer-generated record from the dispensing unit. The record was appropriately admitted into evidence as a business record, Judge McClusky said, and showed that Mr. Fanning dispensed the drugs, but did “not establish if the drugs were dispensed for a legitimate reason.”

The records also were accompanied by “various handwritten notations created by third parties,” with the administrator testifying that the notations were where “we” match records to the order for the dispensing of medications and their administration, but Judge McClusky said there was no testimony provided to establish who the “we” are.

The administrator also testified as to a “very labor-intensive process” by which patient records were reviewed to match orders for the dispensing of medicines, but there was no testimony “as to what actual records were reviewed.”

Judge McClusky wrote that the grand jury cannot rely on the testimony of a witness who testifies that other people reviewed records and made notations, and who tells the jury that the records are admissible and other people reviewed them correctly.

“That is hearsay on hearsay, making the evidence incompetent,” Judge McClusky wrote. “As such, the competent evidence before the Grand Jury is that Carson Fanning dispensed these drugs from the automatic dispensing unit. There is no evidence that he falsified business records, stole drugs, possessed stolen drugs or committed a prohibited act.”

Prosecutors retain the right to appeal the judge’s decision or to present Mr. Fanning’s case to a new grand jury.

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