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A08227 Summary:

BILL NOA08227A
 
SAME ASSAME AS S01017-A
 
SPONSORGriffin
 
COSPNSRGiglio JA, Buttenschon, Woerner, Sillitti, McDonald, Stern, Englebright, Galef, Thiele, Darling, Jacobson, Gandolfo, Montesano, Salka, McDonough, Brabenec, Pheffer Amato
 
MLTSPNSR
 
Amd Pen L, generally
 
Establishes certain offenses based on homicide due to criminal sale of a controlled substance; establishes the offense of criminal sale of a controlled substance to a child in the first degree; expands the definition of controlled substances with respect to certain offenses; increases the felony classification of certain controlled substance offenses; includes electronic prescriptions and blank prescription forms in the definition of certain controlled substance offenses.
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A08227 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8227--A
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                     August 25, 2021
                                       ___________
 
        Introduced  by  M. of A. GRIFFIN, J. A. GIGLIO -- read once and referred
          to the Committee on  Codes  --  committee  discharged,  bill  amended,
          ordered reprinted as amended and recommitted to said committee
 
        AN  ACT  to  amend  the  penal  law, in relation to establishing certain
          offenses based on homicide  due  to  criminal  sale  of  a  controlled
          substance,  establishing  the offense of criminal sale of a controlled
          substance to a child in the first degree, expanding the definition  of
          controlled substances with respect to certain offenses, increasing the
          felony  classification  of  certain  controlled substance offenses and
          including electronic prescriptions and blank prescription forms in the
          definition of certain controlled substance offenses
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. The penal law is amended by adding two new sections 125.28
     2  and 125.29 to read as follows:
     3  § 125.28 Homicide due to criminal sale of a controlled substance in  the
     4             second degree.
     5    A  person  is  guilty of homicide due to criminal sale of a controlled
     6  substance in the second degree when such person:
     7    1. (a) Commits the offense of:  (i)  criminal  sale  of  a  controlled
     8  substance in the fifth degree as defined in section 220.31 of this chap-
     9  ter;  (ii)  criminal sale of a controlled substance in the fourth degree
    10  as defined in section 220.34 of this chapter; (iii) criminal sale  of  a
    11  controlled substance in the third degree as defined in section 220.39 of
    12  this chapter; (iv) criminal sale of a controlled substance in the second
    13  degree  as  defined in section 220.41 of this chapter; (v) criminal sale
    14  of a controlled substance in the first  degree  as  defined  in  section
    15  220.43  of this chapter; (vi) criminal sale of a controlled substance in
    16  or near school grounds as defined in section  220.44  of  this  chapter;
    17  (vii)  criminal  sale of a controlled substance to a child in the second
    18  degree as defined in section 220.48 of  this  chapter;  (viii)  criminal
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01163-05-1

        A. 8227--A                          2
 
     1  sale  of a prescription for a controlled substance, a blank prescription
     2  form or of a controlled substance by a  practitioner  or  pharmacist  as
     3  defined  in section 220.65 of this chapter; or (ix) operating as a major
     4  trafficker as defined in section 220.77 of this chapter; and
     5    (b)  The  injection,  inhalation,  absorption,  or  ingestion  of  the
     6  controlled substance sold causes, or contributes to, the  death  of  the
     7  person to whom the controlled substance was sold.
     8    2.  For  purposes  of  this  section, a person's act of manufacturing,
     9  distributing, or dispensing a controlled substance is  the  cause  of  a
    10  death  when:  the injection, inhalation, absorption, or ingestion of the
    11  controlled substance is an antecedent but for which the death would  not
    12  have occurred.
    13    3.  It shall not be a defense to a prosecution under this section that
    14  the decedent contributed to their own death by such decedent's  purpose-
    15  ful,  knowing, reckless, or negligent injection, inhalation, absorption,
    16  or ingestion of the substance or by such decedent's  consenting  to  the
    17  administration  of the controlled substance by another.  Nothing in this
    18  section shall be construed to preclude or limit  any  other  prosecution
    19  under this article or article two hundred twenty of this chapter.
    20    4. An indeterminate sentence of imprisonment is mandatory.
    21    Homicide  due to criminal sale of a controlled substance in the second
    22  degree is a class B felony.
    23  § 125.29 Homicide due to criminal sale of a controlled substance in  the
    24             first degree.
    25    A  person  is  guilty of homicide due to criminal sale of a controlled
    26  substance in the first degree when such person:
    27    1. (a) Commits the offense of:  (i)  criminal  sale  of  a  controlled
    28  substance in the fifth degree as defined in section 220.31 of this chap-
    29  ter;  (ii)  criminal sale of a controlled substance in the fourth degree
    30  as defined in section 220.34 of this chapter; (iii) criminal sale  of  a
    31  controlled substance in the third degree as defined in section 220.39 of
    32  this chapter; (iv) criminal sale of a controlled substance in the second
    33  degree  as  defined in section 220.41 of this chapter; (v) criminal sale
    34  of a controlled substance in the first  degree  as  defined  in  section
    35  220.43  of this chapter; (vi) criminal sale of a controlled substance in
    36  or near school grounds as defined in section  220.44  of  this  chapter;
    37  (vii)  criminal  sale of a controlled substance to a child in the second
    38  degree as defined in section 220.48 of  this  chapter;  (viii)  criminal
    39  sale of a controlled substance to a child in the first degree as defined
    40  in  section 220.49 of this chapter; (ix) criminal sale of a prescription
    41  for a controlled substance, a blank prescription form or of a controlled
    42  substance by a practitioner or pharmacist as defined in  section  220.65
    43  of  this  chapter;  or (x) operating as a major trafficker as defined in
    44  section 220.77 of this chapter;
    45    (b)  The  injection,  inhalation,  absorption,  or  ingestion  of  the
    46  controlled  substance  sold  causes, or contributes to, the death of the
    47  person to whom the controlled substance was sold; and
    48    (c)(i) The controlled substance is listed in subdivision (c) or (d) of
    49  schedule II of section thirty-three hundred six  of  the  public  health
    50  law, other than methadone; (ii) an additional substance was added to the
    51  controlled  substance  sold which enhances the effects of the controlled
    52  substance and/or increases the danger of ingestion; (iii) the person  to
    53  whom  the  controlled  substance  was  sold  was impaired by one or more
    54  substances at the time of the sale; (iv) the person knew, or had  reason
    55  to  know,  that the person to whom the controlled substance was sold was
    56  using, or intended to use, one or more other substances  in  conjunction

        A. 8227--A                          3

     1  with  the  controlled substance sold; (v) the person knew, or had reason
     2  to know, that the person to whom the controlled substance was  sold  had
     3  completed  a rehabilitation program, or overdosed, within thirty days of
     4  the  sale;  or  (vi) the person, being over twenty-one years old, sold a
     5  controlled substance to a person less than eighteen years old.
     6    2. For purposes of this section,  a  person's  act  of  manufacturing,
     7  distributing,  or  dispensing  a  controlled substance is the cause of a
     8  death when: the injection, inhalation, absorption, or ingestion  of  the
     9  controlled  substance is an antecedent but for which the death would not
    10  have occurred.
    11    3. It shall not be a defense to a prosecution under this section  that
    12  the  decedent contributed to their own death by such decedent's purpose-
    13  ful, knowing, reckless, or negligent injection, inhalation,  absorption,
    14  or  ingestion  of  the substance or by such decedent's consenting to the
    15  administration of the substance by  another.  Nothing  in  this  section
    16  shall be construed to preclude or limit any other prosecution under this
    17  article or article two hundred twenty of this chapter.
    18    4. An indeterminate sentence of imprisonment is mandatory.
    19    Homicide  due  to criminal sale of a controlled substance in the first
    20  degree is a class A felony.
    21    § 2. Subdivision 13 of section 220.16 of the penal law, as amended  by
    22  chapter  75  of the laws of 1995, is amended and a new subdivision 14 is
    23  added to read as follows:
    24    13. phencyclidine and  said  phencyclidine  weighs  one  thousand  two
    25  hundred fifty milligrams or more[.]; or
    26    14.  one  or  more  preparations,  compounds,  mixtures  or substances
    27  containing  heroin  and  said  preparations,  compounds,   mixtures   or
    28  substances are of an aggregate weight of one and one-half grams or more,
    29  or  such preparations, compounds, mixtures or substances are packaged in
    30  fifty or more containers, packets or "decks".
    31    § 3. Subdivision 7 of section 220.18 of the penal law, as  amended  by
    32  chapter  75  of  the laws of 1995, is amended and a new subdivision 8 is
    33  added to read as follows:
    34    7. methadone and said methadone  weighs  two  thousand  eight  hundred
    35  eighty milligrams or more[.]; or
    36    8.  one  or  more  preparations,  compounds,  mixtures  or  substances
    37  containing  heroin  and  said  preparations,  compounds,   mixtures   or
    38  substances  are  of an aggregate weight of twelve grams or more, or such
    39  preparations, compounds, mixtures or substances  are  packaged  in  four
    40  hundred or more containers, packets or "decks".
    41    §  4.  Subdivision 2 of section 220.21 of the penal law, as amended by
    42  chapter 75 of the laws of 1995, is amended and a new  subdivision  3  is
    43  added to read as follows:
    44    2.  methadone  and  said  methadone weighs five thousand seven hundred
    45  sixty milligrams or more[.]; or
    46    3.  one  or  more  preparations,  compounds,  mixtures  or  substances
    47  containing   heroin   and  said  preparations,  compounds,  mixtures  or
    48  substances are of an aggregate weight of twenty-four grams or  more,  or
    49  such  preparations,  compounds,  mixtures  or substances are packaged in
    50  eight hundred or more containers, packets or "decks".
    51    § 5. Subdivision 7 of section 220.41 of the penal law, as  amended  by
    52  chapter  75  of  the laws of 1995, is amended and a new subdivision 8 is
    53  added to read as follows:
    54    7.  methadone and the methadone weighs three hundred sixty  milligrams
    55  or more[.]; or

        A. 8227--A                          4
 
     1    8.  one  or  more  preparations,  compounds,  mixtures  or  substances
     2  containing  heroin  and  the  preparations,   compounds,   mixtures   or
     3  substances are of an aggregate weight of one and one-half grams or more,
     4  or  such preparations, compounds, mixtures or substances are packaged in
     5  fifty or more containers, packets or "decks".
     6    §  6.  Subdivision 2 of section 220.43 of the penal law, as amended by
     7  chapter 75 of the laws of 1995, is amended and a new  subdivision  3  is
     8  added to read as follows:
     9    2.    methadone  and  the  methadone weighs two thousand eight hundred
    10  eighty milligrams or more[.]; or
    11    3.  one  or  more  preparations,  compounds,  mixtures  or  substances
    12  containing   heroin   and   the  preparations,  compounds,  mixtures  or
    13  substances are of an aggregate weight of six  grams  or  more,  or  such
    14  preparations,  compounds,  mixtures  or  substances  are packaged in two
    15  hundred or more containers, packets or "decks".
    16    § 7. Section 220.48 of the penal law, as added by section 28  of  part
    17  AAA of chapter 56 of the laws of 2009, is amended to read as follows:
    18  § 220.48 Criminal  sale  of  a  controlled  substance  to a child in the
    19             second degree.
    20    A person is guilty of criminal sale of a  controlled  substance  to  a
    21  child  in the second degree when, being over twenty-one years old, he or
    22  she knowingly and unlawfully sells without consideration or other  bene-
    23  fit  or  gain  a  controlled substance in violation of section 220.34 or
    24  220.39 of this article to a person less than [seventeen] eighteen  years
    25  old.
    26    Criminal  sale  of  a  controlled  substance  to a child in the second
    27  degree is a class B felony.
    28    § 8. The penal law is amended by adding a new section 220.49  to  read
    29  as follows:
    30  § 220.49 Criminal sale of a controlled substance to a child in the first
    31             degree.
    32    A  person  is  guilty  of criminal sale of a controlled substance to a
    33  child in the first degree when, being over twenty-one years old,  he  or
    34  she  knowingly and unlawfully sells a controlled substance for consider-
    35  ation or other benefit or gain in violation of section 220.34 or  220.39
    36  of this article to a person less than eighteen years old.
    37    Criminal sale of a controlled substance to a child in the first degree
    38  is a class A-II felony.
    39    §  9.  The  closing  paragraph  of section 220.50 of the penal law, as
    40  amended by chapter 627 of the laws  of  1990,  is  amended  to  read  as
    41  follows:
    42    Criminally using drug paraphernalia in the second degree is a class [A
    43  misdemeanor] E felony.
    44    §  10. Section 220.55 of the penal law, as added by chapter 970 of the
    45  laws of 1971, is amended to read as follows:
    46  § 220.55 Criminally using drug paraphernalia in the first degree.
    47    A person is guilty of criminally using drug paraphernalia in the first
    48  degree when he commits the crime of criminally using drug  paraphernalia
    49  in  the second degree and he has previously been convicted of criminally
    50  using drug paraphernalia in the second degree.
    51    Criminally using drug paraphernalia in the first degree is a class [D]
    52  C felony.
    53    § 11. Subdivision 15 of section 220.00 of the penal law, as  added  by
    54  chapter 118 of the laws of 1986, is amended to read as follows:
    55    15.  "Prescription  for  a  controlled substance" means a direction or
    56  authorization, by means of an official New York state prescription form,

        A. 8227--A                          5
 
     1  an electronic prescription, a  written  prescription  form  or  an  oral
     2  prescription, which will permit a person to lawfully obtain a controlled
     3  substance from any person authorized to dispense controlled substances.
     4    § 12. Section 220.65 of the penal law, as amended by chapter 31 of the
     5  laws of 2014, is amended to read as follows:
     6  § 220.65 Criminal  sale  of a prescription for a controlled substance, a
     7             blank prescription form or of a  controlled  substance  by  a
     8             practitioner or pharmacist.
     9    A person is guilty of criminal sale of a prescription for a controlled
    10  substance,  a  blank prescription form or of a controlled substance by a
    11  practitioner or pharmacist when: 1. being a practitioner, as  that  term
    12  is defined in section thirty-three hundred two of the public health law,
    13  he or she knowingly and unlawfully sells a prescription for a controlled
    14  substance  or  a  blank  prescription  form.  For  the  purposes of this
    15  section, a person sells a prescription for a controlled substance  or  a
    16  blank  prescription form unlawfully when he or she does so other than in
    17  good faith in the course of his or her professional practice; or
    18    2. being a practitioner or pharmacist, as those terms are  defined  in
    19  section  thirty-three  hundred  two of the public health law, he or she,
    20  acting other than in good faith, while  purporting  to  act  within  the
    21  scope  of  the power, authority and privileges of his or her license, as
    22  that term is defined in section thirty-three hundred two of  the  public
    23  health  law,  knowingly and unlawfully sells a controlled substance or a
    24  blank prescription form.
    25    Criminal sale of a prescription for a controlled  substance,  a  blank
    26  prescription  form  or  of  a  controlled substance by a practitioner or
    27  pharmacist is a class [C] B felony.
    28    § 13. This act shall  take  effect  on  the  first  of  November  next
    29  succeeding the date upon which it shall have become a law.
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