Superior Court Judge Robert Perry also dismissed part of
a conspiracy count against Howard Stern and Dr. Sandeep Kapoor, ruling there
was insufficient proof that the two men conspired to obtain controlled drugs
through fraud and deceit.
But in his ruling Wednesday, Perry allowed the balance of
that conspiracy charge to stand and said the bulk of the 11-count complaint
would go to the jury for verdicts. Attorneys were scheduled for closing
arguments on Monday.
Stern, Kapoor and Dr. Khristine Eroshevich have pleaded
not guilty to conspiring to prescribe, administer and dispense a controlled
substance to an addict. They are not charged in Smith's 2007 overdose death.
Perry accepted arguments by the defense that because
Stern is not a doctor, he would not have known if there were problems with the
legality of prescriptions written by Kapoor.
"I don't think there's evidence that a layperson
knows it's illegal to write a prescription in another name for a
celebrity," the judge said.
Defense lawyers had hoped for more dismissals based on
the judge's critical comments regarding the prosecution's case through the
trial. Perry previously indicated some charges would likely be dismissed.
"I think there are weaknesses in the prosecution's
case," Perry said Wednesday. "But my inclination is to let it go to
the jury." But the judge also raised the unusual prospect that if he does
not agree with jury convictions, he has the option to change the verdicts or
order a new trial. He said he has done this in other cases.
