Amd SS178.00 - 178.25, add S178.30, Art 179 SS179.00 - 179.15, Art 219 Title M 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
________________________________________________________________________
2942
2013-2014 Regular Sessions
IN SENATE
January 25, 2013
___________
Introduced by Sens. HANNON, GALLIVAN, GRISANTI, MARTINS, MAZIARZ,
RANZENHOFER, YOUNG, ZELDIN -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
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.
15 3. "Prescription form" means an official state prescription form
16 authorized by a state for use by health practitioners authorized to
17 write prescriptions.
18 4. "Criminal diversion act" means an act or acts in which a person
19 knowingly:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01675-02-3
S. 2942 2
1 (a) transfers or delivers, in exchange for anything of pecuniary
2 value, a prescription medication or device with knowledge or reasonable
3 grounds to know that the recipient has no medical need for it; or
4 (b) receives, in exchange for anything of pecuniary value, a
5 prescription medication or device with knowledge or reasonable grounds
6 to know that the seller or transferor is not authorized by law to sell
7 or transfer such prescription medication or device; or
8 (c) receives, in exchange for anything of pecuniary value, a
9 prescription medication or device, prescription, or prescription form
10 from a law enforcement officer acting in an undercover capacity or his
11 or her agent, believing or having reasonable ground to believe that the
12 officer or his or her agent is someone who is not authorized by law to
13 sell or transfer such prescription medication or device, prescription,
14 or prescription form; or
15 (d) transfers or delivers a prescription or prescription form in
16 exchange for anything of pecuniary value; or
17 [(d)] (e) receives a prescription or prescription form in exchange for
18 anything of pecuniary value.
19 § 2. Paragraph (c) of subdivision 1 of section 178.05 of the penal
20 law, as added by chapter 81 of the laws of 1995, is amended and two new
21 paragraphs (d) and (e) are added to read as follows:
22 (c) a person acting in good faith who is seeking [treatment for a
23 medical condition or assisting another person to obtain treatment for a
24 medical condition] to obtain a prescription, prescription medication or
25 device that has been lawfully prescribed to him or her, and for which he
26 or she has a medical need; or
27 (d) a person acting in good faith, who reasonably believes that he or
28 she is assisting another person to obtain a prescription, prescription
29 medication or device that has been lawfully prescribed to that other
30 person; or
31 (e) a duly registered manufacturer or wholesaler of drugs, as defined
32 in article one hundred thirty-seven of the education law, acting in good
33 faith in the lawful course of his or her business.
34 § 3. Section 178.10 of the penal law, as added by chapter 81 of the
35 laws of 1995, is amended to read as follows:
36 § 178.10 Criminal diversion of prescription medications and
37 prescriptions in the [fourth] fifth degree.
38 A person is guilty of criminal diversion of prescription medications
39 and prescriptions in the [fourth] fifth degree when he or she commits a
40 criminal diversion act.
41 Criminal diversion of prescription medications and prescriptions in
42 the [fourth] fifth degree is a class A misdemeanor.
43 § 4. Section 178.15 of the penal law, as added by chapter 81 of the
44 law of 1995, is amended to read as follows:
45 § 178.15 Criminal diversion of prescription medications and
46 prescriptions in the [third] fourth degree.
47 A person is guilty of criminal diversion of prescription medications
48 and prescriptions in the [third] fourth degree when he or she:
49 1. commits a criminal diversion act, and the value of the benefit
50 exchanged is in excess of one thousand dollars; or
51 2. commits the crime of criminal diversion of prescription medications
52 and prescriptions in the [fourth] fifth degree, and has previously been
53 convicted of [the crime of criminal diversion of prescription medica-
54 tions and prescriptions in the fourth degree] an offense defined in this
55 article; or
S. 2942 3
1 3. commits the crime of criminal diversion of prescription medications
2 and prescriptions in the fifth degree on two or more occasions over a
3 thirty-five day period.
4 Criminal diversion of prescription medications and prescriptions in
5 the [third] fourth degree is a class E felony.
6 § 5. Section 178.20 of the penal law, as added by chapter 81 of the
7 laws of 1995, is amended to read as follows:
8 § 178.20 Criminal diversion of prescription medications and
9 prescriptions in the [second] third degree.
10 A person is guilty of criminal diversion of prescription medications
11 and prescriptions in the [second] third degree when he or she:
12 1. commits a criminal diversion act, and the value of the benefit
13 exchanged is in excess of three thousand dollars; or
14 2. commits the crime of criminal diversion of prescription medications
15 and prescriptions in the fifth degree on four or more occasions over a
16 thirty-five day period; or
17 3. commits the crime of criminal diversion of prescription medica-
18 tions and prescriptions in the fifth degree, and is:
19 (a) a physician or other person authorized to issue a prescription; or
20 (b) a pharmacist or other person authorized to dispense prescription
21 medications and devices.
22 Criminal diversion of prescription medications and prescriptions in
23 the [second] third degree is a class D felony.
24 § 6. Section 178.25 of the penal law, as added by chapter 81 of the
25 laws of 1995, is amended to read as follows:
26 § 178.25 Criminal diversion of prescription medications and
27 prescriptions in the [first] second degree.
28 A person is guilty of criminal diversion of prescription medications
29 and prescriptions in the [first] second degree when he or she:
30 1. commits a criminal diversion act, and the value of the benefit
31 exchanged is in excess of fifty thousand dollars; or
32 2. commits the crime of criminal diversion of prescription medications
33 and prescriptions in the fifth degree on six or more occasions over a
34 thirty-five day period; or
35 3. commits the crime of criminal diversion of prescription medications
36 and prescriptions in the fifth degree on two or more occasions over a
37 ninety day period, and is:
38 (a) a physician or other person authorized to issue a prescription; or
39 (b) a pharmacist or other person authorized to dispense prescription
40 medications and devices.
41 Criminal diversion of prescription medications and prescriptions in
42 the [first] second degree is a class C felony.
43 § 7. The penal law is amended by adding a new section 178.30 to read
44 as follows:
45 § 178.30 Criminal diversion of prescription medications and
46 prescriptions in the first degree.
47 A person is guilty of criminal diversion of prescription medications
48 and prescriptions in the first degree when he or she commits the crime
49 of criminal diversion of prescription medications or prescriptions in
50 the fifth degree on five or more occasions over a ninety day period, and
51 is:
52 (a) a physician or other person authorized to issue a prescription; or
53 (b) a pharmacist or other person authorized to dispense prescription
54 medications and devices.
55 Criminal diversion of prescription medications and prescriptions in
56 the first degree is a class B felony.
S. 2942 4
1 § 8. The penal law is amended by adding a new article 179 to read as
2 follows:
3 ARTICLE 179
4 FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF
5 NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
6 Section 179.00 Definitions.
7 179.05 Fraudulent prescription, dispensing and procurement of
8 non-controlled substance prescription medications and
9 devices in the third degree.
10 179.10 Fraudulent prescription, dispensing and procurement of
11 non-controlled substance prescription medications and
12 devices in the second degree.
13 179.15 Fraudulent prescription, dispensing and procurement of
14 non-controlled substance prescription medications and
15 devices in the first degree.
16 § 179.00 Definitions.
17 The following definitions are applicable to this article:
18 1. "Prescription medication or device" means any article for which a
19 prescription is required in order to be lawfully sold, delivered or
20 distributed by any person authorized by law to engage in the practice of
21 the profession of pharmacy.
22 2. "Prescription" means a direction or authorization by means of a
23 written prescription form, an electronic prescription or an oral
24 prescription which permits a person to lawfully obtain a prescription
25 medication or device from any person authorized to dispense such
26 prescription medication or device.
27 3. "Controlled substance" means any substance listed in schedule I,
28 II, III, IV or V of section thirty-three hundred six of the public
29 health law other than marihuana, but including concentrated cannabis as
30 defined in paragraph (a) of subdivision four of section thirty-three
31 hundred two of such law.
32 4. "Dispensing" and "dispenses" refer to the dispensing of a
33 prescription medication or device from or within a pharmacy, hospital,
34 physician's office, clinic or other pharmaceutical or medical facility.
35 § 179.05 Fraudulent prescription, dispensing and procurement of non-
36 controlled substance prescription medications and devices in
37 the third degree.
38 A person is guilty of fraudulent prescription, dispensing and procure-
39 ment of non-controlled substance prescription medications and devices in
40 the third degree when he or she:
41 1. issues a written, electronic or oral prescription for a non-cont-
42 rolled substance prescription medication or device, and is not a duly
43 licensed physician or other person authorized to issue such
44 prescription; or
45 2. dispenses a non-controlled substance prescription medication or
46 device, with knowledge or reasonable grounds to know that:
47 (a) the person for whom the medication or device has been prescribed
48 has no medical need for such medication or device; or
49 (b) no prescription for such medication or device was issued by a duly
50 licensed physician or other person authorized to issue such
51 prescription; or
52 (c) the prescription for such medication or device was forged; or
53 (d) the prescription for such medication or device was issued by a
54 duly licensed physician or other person authorized to issue such
55 prescription who was acting other than in good faith in the lawful
56 course of his or her professional practice; or
S. 2942 5
1 3. presents or submits a prescription for a non-controlled substance
2 prescription medication or device to, or receives a non-controlled
3 substance prescription medication or device from, a duly licensed phar-
4 macist or other person authorized to dispense such prescription medica-
5 tion or device, with knowledge or reasonable grounds to know that:
6 (a) the person for whom the medication or device has been prescribed
7 has no medical need for such medication or device; or
8 (b) the prescription for such medication or device was not issued by a
9 duly licensed physician or other person authorized to issue such
10 prescription; or
11 (c) the prescription for such medication or device was forged; or
12 (d) the prescription for such medication or device was issued by a
13 duly licensed physician or other person authorized to issue such
14 prescription who was acting other than in good faith in the lawful
15 course of his or her professional practice.
16 Fraudulent prescription, dispensing and procurement of non-controlled
17 substance prescription medications and devices in the third degree is a
18 class D felony.
19 § 179.10 Fraudulent prescription, dispensing and procurement of non-
20 controlled substance prescription medications and devices in
21 the second degree.
22 A person is guilty of fraudulent prescription, dispensing and procure-
23 ment of non-controlled substance prescription medications and devices in
24 the second degree when he or she:
25 1. being a duly licensed physician or other person authorized to issue
26 a prescription, issues a written, electronic or oral prescription for a
27 non-controlled substance prescription medication or device, or dispenses
28 a non-controlled substance prescription medication or device:
29 (a) with knowledge or reasonable grounds to know that the person for
30 whom the prescription is issued, or to whom the medication is dispensed,
31 has no medical need for the medication or device that is being
32 prescribed; or
33 (b) other than in good faith in the lawful course of his or her
34 professional practice; or
35 2. being a duly licensed pharmacist or other person authorized to
36 dispense a prescription medication or device, dispenses a non-controlled
37 substance prescription medication or device:
38 (a) with knowledge or reasonable grounds to know that:
39 (i) the person for whom the medication or device has been prescribed
40 has no medical need for such medication or device; or
41 (ii) the prescription for such medication or device was not issued by
42 a duly licensed physician or other person authorized to issue such
43 prescription; or
44 (iii) the prescription for such medication or device was forged; or
45 (iv) the prescription for such medication or device was issued by a
46 duly licensed physician or other person authorized to issue such
47 prescription who was acting other than in good faith in the lawful
48 course of his or her professional practice; or
49 (b) other than in good faith, in the course of his or her lawful
50 professional practice.
51 Fraudulent prescription, dispensing and procurement of non-controlled
52 substance prescription medications and devices in the second degree is a
53 class C felony.
54 § 179.15 Fraudulent prescription, dispensing and procurement of non-
55 controlled substance prescription medications and devices in
56 the first degree.
S. 2942 6
1 A person is guilty of fraudulent prescription, dispensing and procure-
2 ment of non-controlled substance prescription medications and devices in
3 the first degree when he or she, being either a duly licensed physician
4 or other person authorized to issue a prescription, or a duly licensed
5 pharmacist or other person authorized to dispense a prescription medica-
6 tion or device, commits the crime of fraudulent prescription, dispensing
7 and procurement of non-controlled substance prescription medications and
8 devices in the second degree on two or more occasions within a ninety
9 day period.
10 Fraudulent prescription, dispensing and procurement of non-controlled
11 substance prescription medications and devices in the first degree is a
12 class B felony.
13 § 9. Title M of the penal law is amended by adding a new article 219
14 to read as follows:
15 ARTICLE 219
16 UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE PRESCRIPTION
17 MEDICATIONS AND DEVICES
18 Section 219.00 Definitions.
19 219.05 Limitations on application of article.
20 219.10 Unlawful possession of non-controlled substance
21 prescription medications and devices in the fifth
22 degree.
23 219.15 Unlawful possession of non-controlled substance
24 prescription medications and devices in the fourth
25 degree.
26 219.20 Unlawful possession of non-controlled substance
27 prescription medications and devices in the third
28 degree.
29 219.25 Unlawful possession of non-controlled substance
30 prescription medications and devices in the second
31 degree.
32 219.30 Unlawful possession of non-controlled substance
33 prescription medications and devices in the first
34 degree.
35 § 219.00 Definitions.
36 The following definitions are applicable to this article:
37 1. "Prescription medication or device" means any article for which a
38 prescription is required in order to be lawfully sold, delivered or
39 distributed by any person authorized by law to engage in the practice of
40 the profession of pharmacy.
41 2. "Prescription" means a direction or authorization by means of a
42 written prescription form, an electronic prescription or an oral
43 prescription which permits a person to lawfully obtain a prescription
44 medication or device from any person authorized to dispense such
45 prescription medication or device.
46 3. "Controlled substance" means any substance listed in schedule I,
47 II, III, IV or V of section thirty-three hundred six of the public
48 health law other than marihuana, but including concentrated cannabis as
49 defined in paragraph (a) of subdivision four of section thirty-three
50 hundred two of such law.
51 4. The value of a prescription medication or device shall be equiv-
52 alent to the fair market value of such medication or device on the
53 lawful retail market, at about the time and place that the crime is
54 committed.
55 § 219.05 Limitations on application of article.
S. 2942 7
1 The provisions of this article restricting the unlawful possession of
2 non-controlled substance prescription medications and devices shall not
3 apply:
4 1. to common carriers or to warehousemen, while engaged in lawfully
5 transporting or storing such non-controlled substance prescription medi-
6 cations and devices, or to any employee of the same acting within the
7 scope of his or her employment; or
8 2. to public officers or their employees in the lawful performance of
9 their official duties requiring the possession or control of such non-
10 controlled substance prescription medications and devices; or
11 3. to temporary incidental possession by employees or agents of
12 persons lawfully entitled to possess such non-controlled substance
13 prescription medications and devices, or by persons whose possession is
14 for the purpose of aiding public officers in performing their official
15 duties; or
16 4. to a duly licensed physician, duly licensed pharmacist or other
17 person authorized to possess or dispense such non-controlled substance
18 prescription medications and devices, acting in good faith in the lawful
19 course of his or her profession; or
20 5. to temporary incidental possession by a person acting in good faith
21 who reasonably believes that he or she is assisting another person to
22 obtain a non-controlled substance prescription medication or device that
23 has been lawfully prescribed to that other person.
24 § 219.10 Unlawful possession of non-controlled substance prescription
25 medications and devices in the fifth degree.
26 A person is guilty of unlawful possession of non-controlled substance
27 prescription medications and devices in the fifth degree when such
28 person knowingly possesses one or more non-controlled substance
29 prescription medications or devices which were not lawfully prescribed
30 to him or her, under circumstances evincing an intent to sell the same;
31 and
32 1. The aggregate value of such non-controlled substance prescription
33 medications and devices exceeds two hundred dollars; or
34 2. He or she possesses twenty or more pills, tablets or capsules of
35 such non-controlled substance prescription medications and devices.
36 Unlawful possession of non-controlled substance prescription medica-
37 tions and devices in the fifth degree is a class A misdemeanor.
38 § 219.15 Unlawful possession of non-controlled substance prescription
39 medications and devices in the fourth degree.
40 A person is guilty of unlawful possession of non-controlled substance
41 prescription medications and devices in the fourth degree when he or she
42 knowingly and unlawfully possesses one or more non-controlled substance
43 prescription medications and devices which were not lawfully prescribed
44 to him or her; and
45 1. The aggregate value of such non-controlled substance prescription
46 medications and devices exceeds five hundred dollars; or
47 2. He or she possesses fifty or more pills, tablets or capsules of
48 such non-controlled substance prescription medications and devices; or
49 3. He or she possesses a non-controlled substance prescription medica-
50 tion or device with an intent to sell it; or
51 4. He or she commits the crime of unlawful possession of non-cont-
52 rolled prescription medications and devices in the fifth degree, and has
53 previously been convicted of an offense defined in this article.
54 Unlawful possession of non-controlled substance prescription medica-
55 tions and devices in the fourth degree is a class E felony.
S. 2942 8
1 § 219.20 Unlawful possession of non-controlled substance prescription
2 medications and devices in the third degree.
3 A person is guilty of unlawful possession of non-controlled substance
4 prescription medications and devices in the third degree when he or she
5 knowingly and unlawfully possesses one or more non-controlled substance
6 prescription medications and devices which were not lawfully prescribed
7 to him or her; and
8 1. The aggregate value of such non-controlled substance prescription
9 medications and devices exceeds fifteen hundred dollars; or
10 2. He or she possesses one hundred fifty or more pills, tablets or
11 capsules of such non-controlled substance prescription medications and
12 devices.
13 Unlawful possession of non-controlled substance prescription medica-
14 tions and devices in the third degree is a class D felony.
15 § 219.25 Unlawful possession of non-controlled substance prescription
16 medications and devices in the second degree.
17 A person is guilty of unlawful possession of non-controlled substance
18 prescription medications and devices in the second degree when he or she
19 knowingly and unlawfully possesses one or more non-controlled substance
20 prescription medications and devices which were not lawfully prescribed
21 to him or her; and
22 1. The aggregate value of such non-controlled substance prescription
23 medications and devices exceeds ten thousand dollars; or
24 2. He or she possesses one thousand or more pills, tablets or capsules
25 of such non-controlled substance prescription medications and devices.
26 Unlawful possession of non-controlled substance prescription medica-
27 tions and devices in the second degree is a class C felony.
28 § 219.30 Unlawful possession of non-controlled substance prescription
29 medications and devices in the first degree.
30 A person is guilty of unlawful possession of non-controlled substance
31 prescription medications and devices in the first degree when he or she
32 knowingly and unlawfully possesses one or more non-controlled substance
33 prescription medications and devices which were not lawfully prescribed
34 to him or her; and
35 1. The aggregate value of such non-controlled substance prescription
36 medications and devices exceeds one hundred thousand dollars; or
37 2. He or she possesses ten thousand or more pills, tablets or capsules
38 of such non-controlled substance prescription medications and devices.
39 Unlawful possession of non-controlled substance prescription medica-
40 tions and devices in the first degree is a class B felony.
41 § 10. This act shall take effect on the ninetieth day after it shall
42 have become a law.
