Amd SS178.00 - 178.25, add S178.30, Art 179 SS179.00 - 179.15, Title M Art 219 SS219.00 - 219.30, Pen L
Relates to criminal diversion of prescription medications and prescriptions; establishes the offense of fraudulent prescription, dispensing and procurement of non-controlled substance prescription medications and devices; establishes the offense of unlawful possession of non-controlled substance prescription medications and devices.
STATE OF NEW YORK
________________________________________________________________________
7251--C
2011-2012 Regular Sessions
IN ASSEMBLY
April 20, 2011
___________
Introduced by M. of A. O'DONNELL, FARRELL -- read once and referred to
the Committee on Codes -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- again
reported from said committee with amendments, ordered reprinted as
amended and recommitted to said committee -- recommitted to the
Committee on Codes in accordance with Assembly Rule 3, sec. 2 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the penal law, in relation to criminal diversion of
prescription medications and prescriptions, establishing the offense
of fraudulent prescription, dispensing and procurement of non-cont-
rolled substance prescription medications and devices, and establish-
ing the offense of unlawful possession of non-controlled substance
prescription medications and devices
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 178.00 of the penal law, as added by chapter 81 of
2 the laws of 1995, is amended to read as follows:
3 § 178.00 Criminal diversion of prescription medications and
4 prescriptions; definitions.
5 The following definitions are applicable to this article:
6 1. "Prescription medication or device" means any article for which a
7 prescription is required in order to be lawfully sold, delivered or
8 distributed by any person authorized by law to engage in the practice of
9 the profession of pharmacy.
10 2. "Prescription" means a direction or authorization by means of a
11 written prescription form, electronic prescription or an oral
12 prescription which permits a person to lawfully obtain a prescription
13 medication or device from any person authorized to dispense such
14 prescription medication or device.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10939-07-2
A. 7251--C 2
1 3. "Prescription form" means an official state prescription form
2 authorized by a state for use by health practitioners authorized to
3 write prescriptions.
4 4. "Criminal diversion act" means an act or acts in which a person
5 knowingly:
6 (a) transfers or delivers, in exchange for anything of pecuniary
7 value, a prescription medication or device with knowledge or reasonable
8 grounds to know that the recipient has no medical need for it; or
9 (b) receives, in exchange for anything of pecuniary value, a
10 prescription medication or device with knowledge or reasonable grounds
11 to know that the seller or transferor is not authorized by law to sell
12 or transfer such prescription medication or device; or
13 (c) receives, in exchange for anything of pecuniary value, a
14 prescription medication or device, prescription, or prescription form
15 from a law enforcement officer acting in an undercover capacity or his
16 or her agent, believing or having reasonable ground to believe that the
17 officer or his or her agent is someone who is not authorized by law to
18 sell or transfer such prescription medication or device, prescription,
19 or prescription form; or
20 (d) transfers or delivers a prescription or prescription form in
21 exchange for anything of pecuniary value; or
22 [(d)] (e) receives a prescription or prescription form in exchange for
23 anything of pecuniary value.
24 § 2. Paragraph (c) of subdivision 1 of section 178.05 of the penal
25 law, as added by chapter 81 of the laws of 1995, is amended and two new
26 paragraphs (d) and (e) are added to read as follows:
27 (c) a person acting in good faith who is seeking [treatment for a
28 medical condition or assisting another person to obtain treatment for a
29 medical condition] to obtain a prescription, prescription medication or
30 device that has been lawfully prescribed to him or her, and for which he
31 or she has a medical need; or
32 (d) a person acting in good faith, who reasonably believes that he or
33 she is assisting another person to obtain a prescription, prescription
34 medication or device that has been lawfully prescribed to that other
35 person; or
36 (e) a duly registered manufacturer or wholesaler of drugs, as defined
37 in article one hundred thirty-seven of the education law, acting in good
38 faith in the lawful course of his or her business.
39 § 3. Section 178.10 of the penal law, as added by chapter 81 of the
40 laws of 1995, is amended to read as follows:
41 § 178.10 Criminal diversion of prescription medications and
42 prescriptions in the [fourth] fifth degree.
43 A person is guilty of criminal diversion of prescription medications
44 and prescriptions in the [fourth] fifth degree when he or she commits a
45 criminal diversion act.
46 Criminal diversion of prescription medications and prescriptions in
47 the [fourth] fifth degree is a class A misdemeanor.
48 § 4. Section 178.15 of the penal law, as added by chapter 81 of the
49 law of 1995, is amended to read as follows:
50 § 178.15 Criminal diversion of prescription medications and
51 prescriptions in the [third] fourth degree.
52 A person is guilty of criminal diversion of prescription medications
53 and prescriptions in the [third] fourth degree when he or she:
54 1. commits a criminal diversion act, and the value of the benefit
55 exchanged is in excess of one thousand dollars; or
A. 7251--C 3
1 2. commits the crime of criminal diversion of prescription medications
2 and prescriptions in the fourth degree, and has previously been
3 convicted of the crime of criminal diversion of prescription medications
4 and prescriptions [in the fourth degree]; or
5 3. commits the crime of criminal diversion of prescription medications
6 and prescriptions in the fifth degree on two or more occasions over a
7 thirty-five day period.
8 Criminal diversion of prescription medications and prescriptions in
9 the [third] fourth degree is a class E felony.
10 § 5. Section 178.20 of the penal law, as added by chapter 81 of the
11 laws of 1995, is amended to read as follows:
12 § 178.20 Criminal diversion of prescription medications and
13 prescriptions in the [second] third degree.
14 A person is guilty of criminal diversion of prescription medications
15 and prescriptions in the [second] third degree when he or she:
16 1. commits a criminal diversion act, and the value of the benefit
17 exchanged is in excess of three thousand dollars; or
18 2. commits the crime of criminal diversion of prescription medications
19 and prescriptions in the fifth degree on four or more occasions over a
20 thirty-five day period; or
21 3. commits the crime of criminal diversion of prescription medica-
22 tions and prescriptions in the fifth degree, and is:
23 (a) a physician or other person authorized to issue a prescription; or
24 (b) a pharmacist or other person authorized to dispense prescription
25 medications and devices.
26 Criminal diversion of prescription medications and prescriptions in
27 the [second] third degree is a class D felony.
28 § 6. Section 178.25 of the penal law, as added by chapter 81 of the
29 laws of 1995, is amended to read as follows:
30 § 178.25 Criminal diversion of prescription medications and
31 prescriptions in the [first] second degree.
32 A person is guilty of criminal diversion of prescription medications
33 and prescriptions in the [first] second degree when he or she:
34 1. commits a criminal diversion act, and the value of the benefit
35 exchanged is in excess of fifty thousand dollars; or
36 2. commits the crime of criminal diversion of prescription medications
37 and prescriptions in the fifth degree on six or more occasions over a
38 thirty-five day period; or
39 3. commits the crime of criminal diversion of prescription medications
40 and prescriptions in the fifth degree on two or more occasions over a
41 ninety day period, and is:
42 (a) a physician or other person authorized to issue a prescription; or
43 (b) a pharmacist or other person authorized to dispense prescription
44 medications and devices.
45 Criminal diversion of prescription medications and prescriptions in
46 the [first] second degree is a class C felony.
47 § 7. The penal law is amended by adding a new section 178.30 to read
48 as follows:
49 § 178.30 Criminal diversion of prescription medications and
50 prescriptions in the first degree.
51 A person is guilty of criminal diversion of prescription medications
52 and prescriptions in the first degree when he or she commits the crime
53 of criminal diversion of prescription medications or prescriptions in
54 the fifth degree on five or more occasions over a ninety day period, and
55 is:
56 (a) a physician or other person authorized to issue a prescription; or
A. 7251--C 4
1 (b) a pharmacist or other person authorized to dispense prescription
2 medications and devices.
3 Criminal diversion of prescription medications and prescriptions in
4 the first degree is a class B felony.
5 § 8. The penal law is amended by adding a new article 179 to read as
6 follows:
7 ARTICLE 179
8 FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF
9 NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
10 Section 179.00 Definitions.
11 179.05 Fraudulent prescription, dispensing and procurement of
12 non-controlled substance prescription medications and
13 devices in the third degree.
14 179.10 Fraudulent prescription, dispensing and procurement of
15 non-controlled substance prescription medications and
16 devices in the second degree.
17 179.15 Fraudulent prescription, dispensing and procurement of
18 non-controlled substance prescription medications and
19 devices in the first degree.
20 § 179.00 Definitions.
21 The following definitions are applicable to this article:
22 1. "Prescription medication or device" means any article for which a
23 prescription is required in order to be lawfully sold, delivered or
24 distributed by any person authorized by law to engage in the practice of
25 the profession of pharmacy.
26 2. "Prescription" means a direction or authorization by means of a
27 written prescription form, an electronic prescription or an oral
28 prescription which permits a person to lawfully obtain a prescription
29 medication or device from any person authorized to dispense such
30 prescription medication or device.
31 3. "Controlled substance" means any substance listed in schedule I,
32 II, III, IV or V of section thirty-three hundred six of the public
33 health law other than marihuana, but including concentrated cannabis as
34 defined in paragraph (a) of subdivision four of section thirty-three
35 hundred two of such law.
36 4. "Dispensing" and "dispenses" refer to the dispensing of a
37 prescription medication or device from or within a pharmacy, hospital,
38 physician's office, clinic or other pharmaceutical or medical facility.
39 § 179.05 Fraudulent prescription, dispensing and procurement of non-
40 controlled substance prescription medications and devices in
41 the third degree.
42 A person is guilty of fraudulent prescription, dispensing and procure-
43 ment of non-controlled substance prescription medications and devices in
44 the third degree when he or she:
45 1. issues a written, electronic or oral prescription for a non-cont-
46 rolled substance prescription medication or device, and is not a duly
47 licensed physician or other person authorized to issue such
48 prescription; or
49 2. dispenses a non-controlled substance prescription medication or
50 device, with knowledge or reasonable grounds to know that:
51 (a) the person for whom the medication or device has been prescribed
52 has no medical need for such medication or device; or
53 (b) no prescription for such medication or device was issued by a duly
54 licensed physician or other person authorized to issue such
55 prescription; or
56 (c) the prescription for such medication or device was forged; or
A. 7251--C 5
1 (d) the prescription for such medication or device was issued by a
2 duly licensed physician or other person authorized to issue such
3 prescription who was acting other than in good faith in the lawful
4 course of his or her professional practice.
5 3. presents or submits a prescription for a non-controlled substance
6 prescription medication or device to, or receives a non-controlled
7 substance prescription medication or device from, a duly licensed phar-
8 macist or other person authorized to dispense such prescription medica-
9 tion or device, with knowledge or reasonable grounds to know that:
10 (a) the person for whom the medication or device has been prescribed
11 has no medical need for such medication or device; or
12 (b) the prescription for such medication or device was not issued by a
13 duly licensed physician or other person authorized to issue such
14 prescription; or
15 (c) the prescription for such medication or device was forged; or
16 (d) the prescription for such medication or device was issued by a
17 duly licensed physician or other person authorized to issue such
18 prescription who was acting other than in good faith in the lawful
19 course of his or her professional practice.
20 Fraudulent prescription, dispensing and procurement of non-controlled
21 substance prescription medications and devices in the third degree is a
22 class D felony.
23 § 179.10 Fraudulent prescription, dispensing and procurement of non-
24 controlled substance prescription medications and devices in
25 the second degree.
26 A person is guilty of fraudulent prescription, dispensing and procure-
27 ment of non-controlled substance prescription medications and devices in
28 the second degree when he or she:
29 1. being a duly licensed physician or other person authorized to issue
30 a prescription, issues a written, electronic or oral prescription for a
31 non-controlled substance prescription medication or device, or dispenses
32 a non-controlled substance prescription medication or device:
33 (a) with knowledge or reasonable grounds to know that the person for
34 whom the prescription is issued, or to whom the medication is dispensed,
35 has no medical need for the medication or device that is being
36 prescribed; or
37 (b) other than in good faith in the lawful course of his or her
38 professional practice; or
39 2. being a duly licensed pharmacist or other person authorized to
40 dispense a prescription medication or device, dispenses a non-controlled
41 substance prescription medication or device:
42 (a) with knowledge or reasonable grounds to know that:
43 (i) the person for whom the medication or device has been prescribed
44 has no medical need for such medication or device; or
45 (ii) the prescription for such medication or device was not issued by
46 a duly licensed physician or other person authorized to issue such
47 prescription; or
48 (iii) the prescription for such medication or device was forged; or
49 (iv) the prescription for such medication or device was issued by a
50 duly licensed physician or other person authorized to issue such
51 prescription who was acting other than in good faith in the lawful
52 course of his or her professional practice; or
53 (b) other than in good faith, in the course of his or her lawful
54 professional practice.
A. 7251--C 6
1 Fraudulent prescription, dispensing and procurement of non-controlled
2 substance prescription medications and devices in the second degree is a
3 class C felony.
4 § 179.15 Fraudulent prescription, dispensing and procurement of non-
5 controlled substance prescription medications and devices in
6 the first degree.
7 A person is guilty of fraudulent prescription, dispensing and procure-
8 ment of non-controlled substance prescription medications and devices in
9 the first degree when he or she, being either a duly licensed physician
10 or other person authorized to issue a prescription, or a duly licensed
11 pharmacist or other person authorized to dispense a prescription medica-
12 tion or device, commits the crime of fraudulent prescription, dispensing
13 and procurement of non-controlled substance prescription medications and
14 devices in the second degree on two or more occasions within a ninety
15 day period.
16 Fraudulent prescription, dispensing and procurement of non-controlled
17 substance prescription medications and devices in the first degree is a
18 class B felony.
19 § 9. Title M of the penal law is amended by adding a new article 219
20 to read as follows:
21 ARTICLE 219
22 UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE PRESCRIPTION
23 MEDICATIONS AND DEVICES
24 Section 219.00 Definitions.
25 219.05 Limitations on application of article.
26 219.10 Unlawful possession of non-controlled substance
27 prescription medications and devices in the fifth
28 degree.
29 219.15 Unlawful possession of non-controlled substance
30 prescription medications and devices in the fourth
31 degree.
32 219.20 Unlawful possession of non-controlled substance
33 prescription medications and devices in the third
34 degree.
35 219.25 Unlawful possession of non-controlled substance
36 prescription medications and devices in the second
37 degree.
38 219.30 Unlawful possession of non-controlled substance
39 prescription medications and devices in the first
40 degree.
41 § 219.00 Definitions.
42 The following definitions are applicable to this article:
43 1. "Prescription medication or device" means any article for which a
44 prescription is required in order to be lawfully sold, delivered or
45 distributed by any person authorized by law to engage in the practice of
46 the profession of pharmacy.
47 2. "Prescription" means a direction or authorization by means of a
48 written prescription form, an electronic prescription or an oral
49 prescription which permits a person to lawfully obtain a prescription
50 medication or device from any person authorized to dispense such
51 prescription medication or device.
52 3. "Controlled substance" means any substance listed in schedule I,
53 II, III, IV or V of section thirty-three hundred six of the public
54 health law other than marihuana, but including concentrated cannabis as
55 defined in paragraph (a) of subdivision four of section thirty-three
56 hundred two of such law.
A. 7251--C 7
1 4. The value of a prescription medication or device shall be equiv-
2 alent to the fair market value of such medication or device on the
3 lawful retail market, at about the time and place that the crime is
4 committed.
5 § 219.05 Limitations on application of article.
6 The provisions of this article restricting the unlawful possession of
7 non-controlled substance prescription medications and devices shall not
8 apply:
9 1. to common carriers or to warehousemen, while engaged in lawfully
10 transporting or storing such non-controlled substance prescription medi-
11 cations and devices, or to any employee of the same acting within the
12 scope of his or her employment; or
13 2. to public officers or their employees in the lawful performance of
14 their official duties requiring the possession or control of such non-
15 controlled substance prescription medications and devices; or
16 3. to temporary incidental possession by employees or agents of
17 persons lawfully entitled to possess such non-controlled substance
18 prescription medications and devices, or by persons whose possession is
19 for the purpose of aiding public officers in performing their official
20 duties; or
21 4. to a duly licensed physician, duly licensed pharmacist or other
22 person authorized to possess or dispense such non-controlled substance
23 prescription medications and devices, acting in good faith in the lawful
24 course of his or her profession; or
25 5. to temporary incidental possession by a person acting in good faith
26 who reasonably believes that he or she is assisting another person to
27 obtain a non-controlled substance prescription medication or device that
28 has been lawfully prescribed to that other person.
29 § 219.10 Unlawful possession of non-controlled substance prescription
30 medications and devices in the fifth degree.
31 A person is guilty of unlawful possession of non-controlled substance
32 prescription medications and devices in the fifth degree when such
33 person knowingly possesses one or more non-controlled substance
34 prescription medications or devices which were not lawfully prescribed
35 to him or her, under circumstances evincing an intent to sell the same;
36 and
37 1. The aggregate value of such non-controlled substance prescription
38 medications and devices exceeds two hundred dollars; or
39 2. He or she possesses twenty or more pills, tablets or capsules of
40 such non-controlled substance prescription medications and devices.
41 Unlawful possession of non-controlled substance prescription medica-
42 tions and devices in the fifth degree is a class A misdemeanor.
43 § 219.15 Unlawful possession of non-controlled substance prescription
44 medications and devices in the fourth degree.
45 A person is guilty of unlawful possession of non-controlled substance
46 prescription medications and devices in the fourth degree when he or she
47 knowingly and unlawfully possesses one or more non-controlled substance
48 prescription medications and devices which were not lawfully prescribed
49 to him or her; and
50 1. The aggregate value of such non-controlled substance prescription
51 medications and devices exceeds five hundred dollars; or
52 2. He or she possesses fifty or more pills, tablets or capsules of
53 such non-controlled substance prescription medications and devices; or
54 3. He or she possesses a non-controlled substance prescription medica-
55 tion or device with an intent to sell it; or
A. 7251--C 8
1 4. He or she commits the crime of unlawful possession of non-cont-
2 rolled prescription medications and devices in the fifth degree, and has
3 previously been convicted of the crime of unlawful possession of non-
4 controlled prescription medications and devices.
5 Unlawful possession of non-controlled substance prescription medica-
6 tions and devices in the fourth degree is a class E felony.
7 § 219.20 Unlawful possession of non-controlled substance prescription
8 medications and devices in the third degree.
9 A person is guilty of unlawful possession of non-controlled substance
10 prescription medications and devices in the third degree when he or she
11 knowingly and unlawfully possesses one or more non-controlled substance
12 prescription medications and devices which were not lawfully prescribed
13 to him or her; and
14 1. The aggregate value of such non-controlled substance prescription
15 medications and devices exceeds fifteen hundred dollars; or
16 2. He or she possesses one hundred fifty or more pills, tablets or
17 capsules of such non-controlled substance prescription medications and
18 devices.
19 Unlawful possession of non-controlled substance prescription medica-
20 tions and devices in the third degree is a class D felony.
21 § 219.25 Unlawful possession of non-controlled substance prescription
22 medications and devices in the second degree.
23 A person is guilty of unlawful possession of non-controlled substance
24 prescription medications and devices in the second degree when he or she
25 knowingly and unlawfully possesses one or more non-controlled substance
26 prescription medications and devices which were not lawfully prescribed
27 to him or her; and
28 1. The aggregate value of such non-controlled substance prescription
29 medications and devices exceeds ten thousand dollars; or
30 2. He or she possesses one thousand or more pills, tablets or capsules
31 of such non-controlled substance prescription medications and devices.
32 Unlawful possession of non-controlled substance prescription medica-
33 tions and devices in the second degree is a class C felony.
34 § 219.30 Unlawful possession of non-controlled substance prescription
35 medications and devices in the first degree.
36 A person is guilty of unlawful possession of non-controlled substance
37 prescription medications and devices in the first degree when he or she
38 knowingly and unlawfully possesses one or more non-controlled substance
39 prescription medications and devices which were not lawfully prescribed
40 to him or her; and
41 1. The aggregate value of such non-controlled substance prescription
42 medications and devices exceeds one hundred thousand dollars; or
43 2. He or she possesses ten thousand or more pills, tablets or capsules
44 of such non-controlled substance prescription medications and devices.
45 Unlawful possession of non-controlled substance prescription medica-
46 tions and devices in the first degree is a class B felony.
47 § 10. This act shall take effect on the ninetieth day after it shall
48 have become a law.
