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NY Penal Law § 179.11: Criminal Diversion of Medical Marihuana in the Second Degree

July 5, 2020 Federal Criminal Attorneys

While the term “criminal diversion” refers to dispensing an illegal prescription for a medication or device, or selling or purchasing prescription medications illegally, it also applies to matters involving medical marihuana. 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.  According to New York Penal Law § 179.11, you could be prosecuted for criminal diversion of medical marihuana in the second degree if you sell or otherwise furnish medical marihuana to another individual knowing that the individual is not authorized to receive it.

For Example

Aaron is a certified, registered user of medical marihuana. On the other hand, his friend, Anastasia, is not. Every now and then, Aaron sells Anastasia some of the medical marihuana that he buys legally using his certificate. In this scenario, Aaron could be prosecuted for criminal diversion of medical marihuana in the second degree, because he sold medical marihuana to someone who is not a registered user and therefore not legally allowed to have it.

Offenses that are Related

Criminal diversion of medical marihuana in the first degree: New York Penal Law § 179.10

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 second degree is categorized as a class B misdemeanor. If you are convicted of this offense, your sentence could include up to 90 days in jail, a probation term of 1 year, and you could be ordered to pay a fine.

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