Criminal Defense Lawyers

NY Penal Law § 178.25: Criminal Diversion of Prescription Medication and Prescriptions in the First Degree

When a person thinks of drug addiction, he or she usually thinks of heroin, cocaine and methamphetamines. This is only the tip of the iceberg, however, as an experienced New York drug lawyer explains in the paragraphs below.

A National Threat

In 2011, prescription painkillers, namely oxycodone, hydrocodone and oxymorphone, killed more people and destroyed more lives than any outlawed substance, including cocaine, heroin and other street drugs. This appalling statistic comes from the Centers for Disease Control and Prevention and raises the abuse of these medications to an epidemic status. More than 15,000 people have died, and half a million more have had to be transported to emergency rooms due to overdoses of these medications.

From Medical Use to Addiction

This was never supposed to be the case. These medications, when applied properly and used under the care of a physician, are instrumental in the immediate relief of severe and chronic pain. They are prescribed for patients who are suffering from broken bones, cancer, the effects of surgery or extreme injuries as well as palliatives for people in pain whose diagnosis is terminal. They are extremely effective in these instances. The problem comes when they are abused by healthy people or when a patient succumbs to the extremely addictive effect that these opiates have. Some of the patients for whom these drugs are prescribed are veterans who have been wounded in the service of their country, and the addictive effect of painkilling drugs on wounded soldiers is a very common problem. Others are older or middle-aged people who perhaps became addicted to the medication while in the hospital or during recuperation and now cannot manage without it. Finally, there are young people who take the drugs hoping for a euphoric effect and become dependent on them.

Legal Vs Illegal

Normally, painkilling medications are available when prescribed by a physician to a specific patient for a specific condition. This is a perfectly appropriate use of the drug and is legal. However, when the drugs are taken by someone other than the patient for any reason or are obtained through a questionable source, they are no longer legal. The evolution of the “pill mill,” a place to get prescriptions from doctors almost for the mere asking, has become a serious cause for concern in several states. The street value of these drugs is far higher than what they would cost at a legitimate pharmacy, and the desperation of the user makes for a flourishing market.

Federal and State Response

Action from law enforcement and government authorities has not been without effect. Although the problem is still serious, declines in the abuse of prescription medications have been seen in the last several years. Physicians, pharmacies and other entities that either dispense or distribute prescription painkillers have come under scrutiny, and laws have been enacted in several states to address this situation and force those who unlawfully dispense these substances to be accountable for their actions. Since there is considerable variation between the states as to what the laws are, how they read and how they are enforced, you should seek the advice of an experienced New York drug attorney for more information.

Pursuant to the penal code, the term “criminal diversion” is defined as transferring a prescription medication or device for money with the knowledge that the recipient has no medical need for it, or receiving a prescription medication or device with the knowledge that the seller does not have the legal authority to sell such prescription medication or device. The New York criminal code lists 4 offenses that cover the crime of criminal diversion, These are criminal diversion of prescription medication and prescriptions in the first, second, third and fourth degrees. The specific criminal diversion charge you could face is dependent upon the amount of money that exchanged hands for the prescription drugs or device. Criminal diversion of prescription medication and prescriptions in the first degree is the most egregious of the criminal diversion crimes. You could face prosecution under New York Penal Law § 178.25 for criminal diversion of prescription medication and prescriptions in the first degree if you carry out an act of criminal diversion and the value of the medication or devices involved is greater than $50,000.

For Example

Kurt Finch was a neighborhood pharmacist who sold prescriptions from his retail drug store. On the side, he also customarily sold prescription medications to individuals who he knew did not have valid prescriptions. If the value of the medication that he sold to the customers who did not have lawful prescriptions amounts to greater than $50,000, then Mr. Finch could be prosecuted for criminal diversion of prescription medications and prescriptions in the first degree.

Offenses that are Related

Criminal diversion of prescription medications and prescriptions in the fourth degree: New York Penal Law § 178.10

Criminal diversion of prescription medications and prescriptions in the third degree: New York Penal Law § 178.15

Criminal diversion of prescription medications and prescriptions in the second degree: New York Penal Law § 178.20

Possible Defenses

There are three statutory defenses to a charge of criminal diversion of prescription medications and prescriptions:

1. You are a licensed physician, and you dispensed the prescription medication in question in good faith during the normal course of your business.
2. You are a licensed pharmacist, and you dispensed the prescription medication in question in good faith during the normal course of your business.
3. You are an individual seeking treatment for a medical condition or you are assisting another individual in need of medical treatment.

Furthermore, in order to convict you of criminal diversion of prescription medications and prescriptions in the second degree, the prosecutor needs to also demonstrate that the value of the medications and/or devices is over $50,000. If you can bring evidence that the value is lower than $50,000, then you may be able to successfully challenge this charge.challenge the charge. Nevertheless, you could still face a charge of criminal diversion of prescription medications in the second, third or fourth degrees

The Sentence

Use of a criminal diversion of prescription and prescriptions in the first degree is categorized as a class C felony offense. Should you be convicted, the judge can sentence you to up to 15 years in prison, a probation term of 5 years, and order you to pay a substantial fine.

NY Penal Law § 178.20: Criminal Diversion of Prescription Medication and Prescriptions in the Second Degree

Pursuant to the penal code, the term “criminal diversion” is defined as transferring a prescription medication or device for money with the knowledge that the recipient has no medical need for it, or receiving a prescription medication or device with the knowledge that the seller does not have the legal authority to sell such prescription medication or device. The New York criminal code lists 4 offenses that cover the crime of criminal diversion.  These are criminal diversion of prescription medication and prescriptions in the first, second, third and fourth degrees. The specific criminal diversion charge you could face is dependent upon the amount of money that exchanged hands for the prescription drugs or device. You could face prosecution under New York Penal Law § 178.20 for criminal diversion of prescription medication and prescriptions in the second degree if you carry out an act of criminal diversion and the value of the medication or devices involved is greater than $3,000.

An Example

Faizal was in need of cash as quickly as possible. He attempted to borrow it from his friends, but no one would lend him any. On a particular day at his cousin’s house, he stole his cousin’s bottle of prescription Adderall, along with 3 other bottles of prescription medications that his aunt and uncle were using. Over the next 2 weeks, Faizal was able to sell the pills on the street to raise over $4000 in cash. Faizal could face prosecution for criminal diversion of prescription medications and prescriptions in the second degree, in addition to a grand larceny charge.

Offenses that are Related

Criminal diversion of prescription medications and prescriptions in the fourth degree: New York Penal Law § 178.10

Criminal diversion of prescription medications and prescriptions in the third degree: New York Penal Law § 178.15

Criminal diversion of prescription medications and prescriptions in the first degree: New York Penal Law § 178.25

Possible Defenses

If you are a licensed physician or pharmacist, and you dispensed the prescription medication in question in good faith during the normal course of your business, then you would have a strong defense against a charge of criminal diversion of prescription medications and prescriptions in the fourth degree. It is important to note that this defense would be valid only if you were indeed acting in good faith in the lawful course of your profession and you can demonstrate that to the court.

Additionally, you would have a defense against this charge if you are an individual seeking treatment for a medical condition or you are assisting another individual in need of medical treatment.

Furthermore, in order to convict you of criminal diversion of prescription medications and prescriptions in the second degree, the prosecutor needs to also demonstrate that the value of the medications and/or devices is over $3,000. If you can bring evidence that the value is lower than $3,000, then you may be able to successfully challenge this charge.challenge the charge. Nevertheless, you could still face a charge of criminal diversion of prescription medications in the third or fourth degrees.

The Sentence

Use of a criminal diversion of prescription and prescriptions in the second degree is categorized as a class D felony offense. Should you be convicted, the judge can sentence you to up to 7 years in prison, a probation term of 5 years, and order you to pay a fine.

NY Penal Law § 178.15: Criminal Diversion of Prescription Medication and Prescriptions in the Third Degree

Pursuant to the penal code, the term “criminal diversion” is defined as transferring a prescription medication or device for money with the knowledge that the recipient has no medical need for it, or receiving a prescription medication or device with the knowledge that the seller does not have the legal authority to sell such prescription medication or device. The New York criminal code lists 4 offenses that cover the crime of criminal diversion.  They are criminal diversion of prescription medication and prescriptions in the first, second, third and fourth degrees.  You could face prosecution under New York Penal Law § 178.15 for criminal diversion of prescription medication and prescriptions in the third degree if you carry out an act of criminal diversion and the value of the medication or devices involved is greater than $1,000. You will also be looking at this charge if you commit the crime of criminal diversion of prescription medication and prescriptions in the fourth degree and you have already been convicted on that charge.

A Case Law Example

A police officer witnessed as Mr. Christophe Polanco exchanged two envelopes, each containing 300 milligrams of Reyataz for $2,408. On the basis of this evidence, Mr. Polanco was convicted of criminal diversion of prescription medications and prescriptions in the third degree. The individual who gave Mr. Polanco $2,408 in payment for the Reyataz also faced criminal charges. This was the case of the People v. Polanco, 875 N.Y.S.2d 761 (N.Y. Crim. Ct., 2009)

Offenses that are Related

Criminal diversion of prescription medications and prescriptions in the fourth degree: New York Penal Law § 178.10

Criminal diversion of prescription medications and prescriptions in the second degree: New York Penal Law § 178.20

Criminal diversion of prescription medications and prescriptions in the first degree: New York Penal Law § 178.25

Possible Defenses

If you are a licensed physician or pharmacist, and you dispensed the prescription medication in question in good faith during the normal course of your business, then you would have a strong defense against a charge of criminal diversion of prescription medications and prescriptions in the fourth degree. It is important to note that this defense would be valid only if you were indeed acting in good faith in the lawful course of your profession and you can demonstrate that to the court.

Additionally, you would have a defense against this charge if you are an individual seeking treatment for a medical condition or you are assisting another individual in need of medical treatment.

In order to convict you of criminal diversion of prescription medications and prescriptions in the third degree, the prosecutor needs to also demonstrate that the value of the medications and/or devices is over $1,000. If you can bring evidence that the value is lower than $1,000, then you may be able to successfully challenge this charge.

The Sentence

Use of a criminal diversion of prescription and prescriptions in the third degree is categorized as a class E felony offense. Should you be convicted, the judge can sentence you to up to 4 years in prison, a probation term of 5 years, and order you to pay a fine.

NY Penal Law § 178.10: Criminal Diversion of Prescription Medication and Prescriptions in the Fourth Degree

Pursuant to the penal code, the term “criminal diversion” is defined as transferring a prescription medication or device for money with the knowledge that the recipient has no medical need for it, or receiving a prescription medication or device with the knowledge that the seller does not have the legal authority to sell such prescription medication or device. The New York criminal code lists 4 offenses that cover the crime of criminal diversion. Criminal diversion of prescription medication and prescriptions in the fourth degree is the least serious of the four criminal diversion of prescription medication offenses. Pursuant to New York Penal Law § 178.10, you could be prosecuted for criminal diversion of prescription medication and prescriptions in the fourth degree if you engage in an act of criminal diversion.

Two Case law Examples

In this first example, Mr. Carlos Medinas was accused of buying 300 tablets Procardia XL 60 mg.; 200 Procardia XL 90 mg.; and 30 tablets Diflucan 200 mg from a person that he knew was not authorized to sell them to him. As a result, he was charged with criminal diversion of prescription medications and prescriptions in the fourth degree. This was the case of the People v. Medinas, 689 N.Y.S.2d 345 (N.Y.Sup., 1999)

In another case, the defendant, Ms. Sherri Barnes, was also charged with criminal diversion of prescription medications and prescriptions in the fourth degree after giving Ms. Susan Jewett some cash, groceries and other items in exchange for prescription medications that were prescribed to Ms. Jewett. This case was the People v. Barnes, 984 N.Y.S.2d 693 (N.Y. App. Div., 2014)

Offenses that are Related

Criminal diversion of prescription medications and prescriptions in the third degree: New York Penal Law § 178.15

Criminal diversion of prescription medications and prescriptions in the second degree: New York Penal Law § 178.20

Criminal diversion of prescription medications and prescriptions in the first degree: New York Penal Law § 178.25

Possible Defenses

If you are a licensed physician or pharmacist, and you dispensed the prescription medication in question in good faith during the normal course of your business, then you would have a strong defense against a charge of criminal diversion of prescription medications and prescriptions in the fourth degree. It is important to note that this defense would be valid only if you were indeed acting in good faith in the lawful course of your profession and you can demonstrate that to the court.

Additionally, you would have a defense against this charge if you are an individual seeking treatment for a medical condition or you are assisting another individual in need of medical treatment.

The Sentence

Use of a criminal diversion of prescription and prescriptions in the fourth degree is categorized as a class A misdemeanor. Should you be convicted, the judge can sentence you to up to 1 year in jail, a probation term of 3 years, and order you to pay a fine.