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NY Penal Law § 179.10: Criminal Diversion of Medical Marihuana in the First Degree

July 5, 2020 Federal Criminal Attorneys

In the New York penal code, criminal diversion of medical marihuana is defined as issuing a medical marihuana certification to a person who is not eligible for one or transferring medical marihuana to a person who is not eligible to receive it. Three offenses in the New York criminal code cover the crime of criminal diversion of medical marihuana.  You could be prosecuted for criminal diversion of medical marihuana in the first degree pursuant to New York Penal Law § 179.10 if you are a practitioner and you give out a certification to a patient knowing that the recipient does not actually have any need for medical marihuana or being conscious that it is for a use other than treating a serious medical condition. According to New York Public Health Law § 3360, the term “practitioner” is used to indicate a physician who is licensed in the State of New York, that is qualified to treat serious medical conditions, and who has completed the required course of study.

An Example

Tommy Jeremiah is a staunch supporter of the legalization of marihuana for medicinal uses as well as for recreational use. He has been using marijuana recreationally for many years now, starting back when he was a teenager. Mr. Jeremiah is presently a physician who looks after patients with serious, painful and sometimes terminal medical ailments. His qualifications allow him to issue certifications to patients to use medical marihuana. Nevertheless, in keeping with his general support for the use of marihuana, at times, Mr. Jeremiah issues patients certifications even though they do not meet the statutory requirements. In this scenario, Mr. Jeremiah could be prosecuted for criminal diversion of medical marijuana on the basis of issuing certifications to individuals who do not suffer from serious ailments as required by law.

Offenses that are Related

Criminal diversion of medical marihuana in the second degree: New York Penal Law § 179.11

Criminal retention of medical marihuana: New York Penal Law § 179.15

Possible Defenses

The criminal diversion of marihuana statute would not apply to your case if you:

  1. Are a licensed practitioner who is authorized to give a certification, and you acted lawfully and in good faith in the course of his or her profession,
  2. Are a licensed pharmacist operating a lawful pharmacy business, or
  3. An individual legitimately seeking treatment for a medical condition or assisting another individual to obtain treatment for a medical condition.

The Sentence

Criminal diversion of medical marihuana in the first degree is categorized a class E felony. In the event that you are convicted, your sentence might include up to 4 years in prison, a probation term of 5 years, and you might be ordered to pay a fine

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