Criminal Diversion of Prescription Medications and Prescriptions

Although not prosecuted nearly as heavily as other drug and narcotic crimes, New York has powerful criminal laws on the books when it comes to prescription drug fraud and the criminal diversion of prescription medications. Although the following is not a substitute for a consultation with a New York criminal defense attorney experienced in the arena of drug and prescription medication crimes, it does provide a starting point for educating oneself as to these offenses. Criminal Diversion of Prescription Medications and Prescriptions (New York Penal Law sections 178.10, 178.15, 178.20 and 178.25) ranges from an “A” misdemeanor punishable by up to one year in jail (Rikers Island in the event you are charged in Manhattan, Brooklyn and elsewhere in New York City) to a “C” felony punishable by up to fifteen years in state prison.

The first critical step in understanding the crime of Criminal Diversion of Prescription Medications and Prescriptions is understanding the “criminal diversion act.” Pursuant to New York Penal Law 178.00, a “criminal diversion act” is an act where one knowingly transfers, delivers or receives something of monetary value in exchange for a prescription medication or device knowing that the recipient had no medical need for that prescription or the seller lacked the authority to transfer the prescription medication. Even if one does not know, the statue make is clear that this element is satisfied as long one has reasonable grounds to know that the recipient did not need the prescription medication. In short, transferring or receiving a prescription in exchange for anything of value satisfies the “criminal diversion act” element.

• Criminal Diversion of Prescription Medications in the 4th Degree – NY PL 178.10
• Criminal Diversion of Prescription Medications in the 3rd Degree – NY PL 178.15
• Criminal Diversion of Prescription Medications in the 2nd Degree – NY PL 178.20
• Criminal Diversion of Prescription Medications in the 1st Degree – NY PL 178.25

Fourth Degree Criminal Diversion of Prescription Medication

A person is guilty of New York Penal Law section 178.10 when that person commits a criminal diversion act as addressed above.

Criminal Diversion of Prescription Medication in the Fourth Degree is an “A” misdemeanor punishable by up to one year in jail.

Third Degree Criminal Diversion of Prescription Medication

A person is guilty of New York Penal Law section 178.15 when that person commits a criminal diversion act. The value of that exchange must be greater than $1,000. Additionally, even if the value is less than $1,000, if a person was previously convicted of New York Penal Law 178.10 and that person committed this crime again, Criminal Diversion of a Prescription Medication in Third Degree is the “bump up” charge that person would face.

Criminal Diversion of Prescription Medication in the Third Degree is an “E” felony punishable by up to four years in state prison.

Second Degree Criminal Diversion of Prescription Medication

A person is guilty of New York Penal Law section 178.15 when that person commits a criminal diversion act. The value of that exchange must be greater than $3,000.

Criminal Diversion of Prescription Medication in the Second Degree is a “D” felony punishable by up to seven years in state prison.

First Degree Criminal Diversion of Prescription Medication

A person is guilty of New York Penal Law section 178.15 when that person commits a criminal diversion act. The value of that exchange must be greater than $50,000.

Criminal Diversion of Prescription Medication in the Third Degree is a “C” felony punishable by up to fifteen years in state prison.

Legal Defenses to Criminal Diversion of Prescription Medication

An experienced and trustworthy New York criminal lawyer cannot give you a “cookie cutter” criminal defense to any charge. However, there are certain legal issues or facts in each case that may be beneficial to you in some way. It is possible that this defense will go to the substance of your case or to mitigate your conduct.

In crimes involving Criminal Diversion of Prescription Medication, the New York Penal Law actually sets forth possible defenses. Briefly, if you are a pharmacist or a physician with the authorization to administer the prescription and you do so in the course of your business and in good faith, you have a statutory defense. If you are an individual seeking treatment for a particular medical condition or assisting someone for that treatment and you are doing so in good faith, then you would also have a statutorily recognized defense. Assuming either of these defenses applies to you, you and your New York criminal attorney would need to present proof or evidence of the same.

In addition to mentioning the above defenses, other issues might be relevant to discuss with your New York criminal defense attorney. Were you the subject of an ongoing investigation? What proof does the prosecutor have –video, confession, the prescriptions? Were there undercover police officers posing as buyers? If so, were you arrested with “pre-recorded buy money? Is it sufficient for prosecutors to prove that the medicine in question is a prescription medicine based solely on your statement? If you were charged with Attempted Criminal Diversion of Prescription Medication, does the medication sold or received have to in fact be a prescription medicine or can it be something as insignificant as an asprin?

Clearly, if you are charged with Criminal Diversion of Prescription Medicine, there are numerous legal and factual issues to discuss with your counsel.

Crimes Associate with Criminal Diversion of Prescription Medication

Often times, the crime of Criminal Diversion of Prescription Medication is one of many offenses charged in an arrest or indictment. Other crimes may include:

• Grand Larceny
• Health Care Fraud
• Insurance Fraud
• Criminal Sale of a Prescription for a Controlled Substance

These crimes have the potential to be even more serious and to carry a greater sentence than Criminal Diversion of Prescription Medication.

For further information on Criminal Diversion of Prescription Medications and related offenses, please review the New York Criminal Lawyer Blog. There you will find New York criminal law statutes with analysis, legal decisions and cases in the news.

Saland Law, a New York criminal defense firm founded by two former Manhattan prosecutors, represents clients throughout New York City and the region.

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