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.
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.