S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6967
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                May 9, 2023
                                ___________
 
 Introduced  by M. of A. STERN -- read once and referred to the Committee
   on Codes
 
 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:
 
   Section 1. The penal law is amended by adding two new sections  125.28
 and 125.29 to read as follows:
 § 125.28 HOMICIDE  DUE TO CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE
            SECOND DEGREE.
   A PERSON IS GUILTY OF HOMICIDE DUE TO CRIMINAL SALE  OF  A  CONTROLLED
 SUBSTANCE IN THE SECOND DEGREE WHEN SUCH PERSON:
   1.  (A)  COMMITS  THE  OFFENSE  OF:  (I) CRIMINAL SALE OF A CONTROLLED
 SUBSTANCE IN THE FIFTH DEGREE AS DEFINED IN SECTION 220.31 OF THIS CHAP-
 TER; (II) CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE  FOURTH  DEGREE
 AS  DEFINED  IN SECTION 220.34 OF THIS CHAPTER; (III) CRIMINAL SALE OF A
 CONTROLLED SUBSTANCE IN THE THIRD DEGREE AS DEFINED IN SECTION 220.39 OF
 THIS CHAPTER; (IV) CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE SECOND
 DEGREE AS DEFINED IN SECTION 220.41 OF THIS CHAPTER; (V)  CRIMINAL  SALE
 OF  A  CONTROLLED  SUBSTANCE  IN  THE FIRST DEGREE AS DEFINED IN SECTION
 220.43 OF THIS CHAPTER; (VI) CRIMINAL SALE OF A CONTROLLED SUBSTANCE  IN
 OR  NEAR  SCHOOL  GROUNDS  AS DEFINED IN SECTION 220.44 OF THIS CHAPTER;
 (VII) CRIMINAL SALE OF A CONTROLLED SUBSTANCE TO A CHILD IN  THE  SECOND
 DEGREE  AS  DEFINED  IN  SECTION 220.48 OF THIS CHAPTER; (VIII) CRIMINAL
 SALE OF A PRESCRIPTION FOR A CONTROLLED SUBSTANCE, A BLANK  PRESCRIPTION
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07747-01-3
              

 A. 6967                             2
 
 FORM  OR  OF  A  CONTROLLED SUBSTANCE BY A PRACTITIONER OR PHARMACIST AS
 DEFINED IN SECTION 220.65 OF THIS CHAPTER; OR (IX) OPERATING AS A  MAJOR
 TRAFFICKER AS DEFINED IN SECTION 220.77 OF THIS CHAPTER; AND
   (B)  THE  INJECTION,  INHALATION,  ABSORPTION,  OR  INGESTION  OF  THE
 CONTROLLED SUBSTANCE SOLD CAUSES, OR CONTRIBUTES TO, THE  DEATH  OF  THE
 PERSON TO WHOM THE CONTROLLED SUBSTANCE WAS SOLD.
   2.  FOR  PURPOSES  OF  THIS  SECTION, A PERSON'S ACT OF MANUFACTURING,
 DISTRIBUTING, OR DISPENSING A CONTROLLED SUBSTANCE IS  THE  CAUSE  OF  A
 DEATH  WHEN:  THE INJECTION, INHALATION, ABSORPTION, OR INGESTION OF THE
 CONTROLLED SUBSTANCE IS AN ANTECEDENT BUT FOR WHICH THE DEATH WOULD  NOT
 HAVE OCCURRED.
   3.  IT SHALL NOT BE A DEFENSE TO A PROSECUTION UNDER THIS SECTION THAT
 THE DECEDENT CONTRIBUTED TO THEIR OWN DEATH BY SUCH DECEDENT'S  PURPOSE-
 FUL,  KNOWING, RECKLESS, OR NEGLIGENT INJECTION, INHALATION, ABSORPTION,
 OR INGESTION OF THE SUBSTANCE OR BY SUCH DECEDENT'S  CONSENTING  TO  THE
 ADMINISTRATION  OF THE CONTROLLED SUBSTANCE BY ANOTHER.  NOTHING IN THIS
 SECTION SHALL BE CONSTRUED TO PRECLUDE OR LIMIT  ANY  OTHER  PROSECUTION
 UNDER THIS ARTICLE OR ARTICLE TWO HUNDRED TWENTY OF THIS CHAPTER.
   4. AN INDETERMINATE SENTENCE OF IMPRISONMENT IS MANDATORY.
   HOMICIDE  DUE TO CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE SECOND
 DEGREE IS A CLASS B FELONY.
 § 125.29 HOMICIDE DUE TO CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN  THE
            FIRST DEGREE.
   A  PERSON  IS  GUILTY OF HOMICIDE DUE TO CRIMINAL SALE OF A CONTROLLED
 SUBSTANCE IN THE FIRST DEGREE WHEN SUCH PERSON:
   1. (A) COMMITS THE OFFENSE OF:  (I)  CRIMINAL  SALE  OF  A  CONTROLLED
 SUBSTANCE IN THE FIFTH DEGREE AS DEFINED IN SECTION 220.31 OF THIS CHAP-
 TER;  (II)  CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE FOURTH DEGREE
 AS DEFINED IN SECTION 220.34 OF THIS CHAPTER; (III) CRIMINAL SALE  OF  A
 CONTROLLED SUBSTANCE IN THE THIRD DEGREE AS DEFINED IN SECTION 220.39 OF
 THIS CHAPTER; (IV) CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE SECOND
 DEGREE  AS  DEFINED IN SECTION 220.41 OF THIS CHAPTER; (V) CRIMINAL SALE
 OF A CONTROLLED SUBSTANCE IN THE FIRST  DEGREE  AS  DEFINED  IN  SECTION
 220.43  OF THIS CHAPTER; (VI) CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN
 OR NEAR SCHOOL GROUNDS AS DEFINED IN SECTION  220.44  OF  THIS  CHAPTER;
 (VII)  CRIMINAL  SALE OF A CONTROLLED SUBSTANCE TO A CHILD IN THE SECOND
 DEGREE AS DEFINED IN SECTION 220.48 OF  THIS  CHAPTER;  (VIII)  CRIMINAL
 SALE OF A CONTROLLED SUBSTANCE TO A CHILD IN THE FIRST DEGREE AS DEFINED
 IN  SECTION 220.49 OF THIS CHAPTER; (IX) CRIMINAL SALE OF A PRESCRIPTION
 FOR A CONTROLLED SUBSTANCE, A BLANK PRESCRIPTION FORM OR OF A CONTROLLED
 SUBSTANCE BY A PRACTITIONER OR PHARMACIST AS DEFINED IN  SECTION  220.65
 OF  THIS  CHAPTER;  OR (X) OPERATING AS A MAJOR TRAFFICKER AS DEFINED IN
 SECTION 220.77 OF THIS CHAPTER;
   (B)  THE  INJECTION,  INHALATION,  ABSORPTION,  OR  INGESTION  OF  THE
 CONTROLLED  SUBSTANCE  SOLD  CAUSES, OR CONTRIBUTES TO, THE DEATH OF THE
 PERSON TO WHOM THE CONTROLLED SUBSTANCE WAS SOLD; AND
   (C)(I) THE CONTROLLED SUBSTANCE IS LISTED IN SUBDIVISION (C) OR (D) OF
 SCHEDULE II OF SECTION THIRTY-THREE HUNDRED SIX  OF  THE  PUBLIC  HEALTH
 LAW, OTHER THAN METHADONE; (II) AN ADDITIONAL SUBSTANCE WAS ADDED TO THE
 CONTROLLED  SUBSTANCE  SOLD WHICH ENHANCES THE EFFECTS OF THE CONTROLLED
 SUBSTANCE AND/OR INCREASES THE DANGER OF INGESTION; (III) THE PERSON  TO
 WHOM  THE  CONTROLLED  SUBSTANCE  WAS  SOLD  WAS IMPAIRED BY ONE OR MORE
 SUBSTANCES AT THE TIME OF THE SALE; (IV) THE PERSON KNEW, OR HAD  REASON
 TO  KNOW,  THAT THE PERSON TO WHOM THE CONTROLLED SUBSTANCE WAS SOLD WAS
 USING, OR INTENDED TO USE, ONE OR MORE OTHER SUBSTANCES  IN  CONJUNCTION
 WITH  THE  CONTROLLED SUBSTANCE SOLD; (V) THE PERSON KNEW, OR HAD REASON
 A. 6967                             3

 TO KNOW, THAT THE PERSON TO WHOM THE CONTROLLED SUBSTANCE WAS  SOLD  HAD
 COMPLETED  A REHABILITATION PROGRAM, OR OVERDOSED, WITHIN THIRTY DAYS OF
 THE SALE; OR (VI) THE PERSON, BEING OVER TWENTY-ONE YEARS  OLD,  SOLD  A
 CONTROLLED SUBSTANCE TO A PERSON LESS THAN EIGHTEEN YEARS OLD.
   2.  FOR  PURPOSES  OF  THIS  SECTION, A PERSON'S ACT OF MANUFACTURING,
 DISTRIBUTING, OR DISPENSING A CONTROLLED SUBSTANCE IS  THE  CAUSE  OF  A
 DEATH  WHEN:  THE INJECTION, INHALATION, ABSORPTION, OR INGESTION OF THE
 CONTROLLED SUBSTANCE IS AN ANTECEDENT BUT FOR WHICH THE DEATH WOULD  NOT
 HAVE OCCURRED.
   3.  IT SHALL NOT BE A DEFENSE TO A PROSECUTION UNDER THIS SECTION THAT
 THE DECEDENT CONTRIBUTED TO THEIR OWN DEATH BY SUCH DECEDENT'S  PURPOSE-
 FUL,  KNOWING, RECKLESS, OR NEGLIGENT INJECTION, INHALATION, ABSORPTION,
 OR INGESTION OF THE SUBSTANCE OR BY SUCH DECEDENT'S  CONSENTING  TO  THE
 ADMINISTRATION  OF  THE  SUBSTANCE  BY  ANOTHER. NOTHING IN THIS SECTION
 SHALL BE CONSTRUED TO PRECLUDE OR LIMIT ANY OTHER PROSECUTION UNDER THIS
 ARTICLE OR ARTICLE TWO HUNDRED TWENTY OF THIS CHAPTER.
   4. AN INDETERMINATE SENTENCE OF IMPRISONMENT IS MANDATORY.
   HOMICIDE DUE TO CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN  THE  FIRST
 DEGREE IS A CLASS A FELONY.
   §  2. Subdivision 13 of section 220.16 of the penal law, as amended by
 chapter 75 of the laws of 1995, is amended and a new subdivision  14  is
 added to read as follows:
   13.  phencyclidine  and  said  phencyclidine  weighs  one thousand two
 hundred fifty milligrams or more[.]; OR
   14. ONE  OR  MORE  PREPARATIONS,  COMPOUNDS,  MIXTURES  OR  SUBSTANCES
 CONTAINING   HEROIN   AND  SAID  PREPARATIONS,  COMPOUNDS,  MIXTURES  OR
 SUBSTANCES ARE OF AN AGGREGATE WEIGHT OF ONE AND ONE-HALF GRAMS OR MORE,
 OR SUCH PREPARATIONS, COMPOUNDS, MIXTURES OR SUBSTANCES ARE PACKAGED  IN
 FIFTY OR MORE CONTAINERS, PACKETS OR "DECKS".
   §  3.  Subdivision 7 of section 220.18 of the penal law, as amended by
 chapter 75 of the laws of 1995, is amended and a new  subdivision  8  is
 added to read as follows:
   7.  methadone  and  said  methadone  weighs two thousand eight hundred
 eighty milligrams or more[.]; OR
   8.  ONE  OR  MORE  PREPARATIONS,  COMPOUNDS,  MIXTURES  OR  SUBSTANCES
 CONTAINING   HEROIN   AND  SAID  PREPARATIONS,  COMPOUNDS,  MIXTURES  OR
 SUBSTANCES ARE OF AN AGGREGATE WEIGHT OF TWELVE GRAMS OR MORE,  OR  SUCH
 PREPARATIONS,  COMPOUNDS,  MIXTURES  OR  SUBSTANCES ARE PACKAGED IN FOUR
 HUNDRED OR MORE CONTAINERS, PACKETS OR "DECKS".
   § 4. Subdivision 2 of section 220.21 of the penal law, as  amended  by
 chapter  75  of  the laws of 1995, is amended and a new subdivision 3 is
 added to read as follows:
   2. methadone and said methadone weighs  five  thousand  seven  hundred
 sixty milligrams or more[.]; OR
   3.  ONE  OR  MORE  PREPARATIONS,  COMPOUNDS,  MIXTURES  OR  SUBSTANCES
 CONTAINING  HEROIN  AND  SAID  PREPARATIONS,  COMPOUNDS,   MIXTURES   OR
 SUBSTANCES  ARE  OF AN AGGREGATE WEIGHT OF TWENTY-FOUR GRAMS OR MORE, OR
 SUCH PREPARATIONS, COMPOUNDS, MIXTURES OR  SUBSTANCES  ARE  PACKAGED  IN
 EIGHT HUNDRED OR MORE CONTAINERS, PACKETS OR "DECKS".
   §  5.  Subdivision 7 of section 220.41 of the penal law, as amended by
 chapter 75 of the laws of 1995, is amended and a new  subdivision  8  is
 added to read as follows:
   7.   methadone and the methadone weighs three hundred sixty milligrams
 or more[.]; OR
   8.  ONE  OR  MORE  PREPARATIONS,  COMPOUNDS,  MIXTURES  OR  SUBSTANCES
 CONTAINING   HEROIN   AND   THE  PREPARATIONS,  COMPOUNDS,  MIXTURES  OR
 A. 6967                             4
 
 SUBSTANCES ARE OF AN AGGREGATE WEIGHT OF ONE AND ONE-HALF GRAMS OR MORE,
 OR SUCH PREPARATIONS, COMPOUNDS, MIXTURES OR SUBSTANCES ARE PACKAGED  IN
 FIFTY OR MORE CONTAINERS, PACKETS OR "DECKS".
   §  6.  Subdivision 2 of section 220.43 of the penal law, as amended by
 chapter 75 of the laws of 1995, is amended and a new  subdivision  3  is
 added to read as follows:
   2.    methadone  and  the  methadone weighs two thousand eight hundred
 eighty milligrams or more[.]; OR
   3.  ONE  OR  MORE  PREPARATIONS,  COMPOUNDS,  MIXTURES  OR  SUBSTANCES
 CONTAINING   HEROIN   AND   THE  PREPARATIONS,  COMPOUNDS,  MIXTURES  OR
 SUBSTANCES ARE OF AN AGGREGATE WEIGHT OF SIX  GRAMS  OR  MORE,  OR  SUCH
 PREPARATIONS,  COMPOUNDS,  MIXTURES  OR  SUBSTANCES  ARE PACKAGED IN TWO
 HUNDRED OR MORE CONTAINERS, PACKETS OR "DECKS".
   § 7. Section 220.48 of the penal law, as added by section 28  of  part
 AAA of chapter 56 of the laws of 2009, is amended to read as follows:
 § 220.48 Criminal  sale  of  a  controlled  substance  to a child IN THE
            SECOND DEGREE.
   A person is guilty of criminal sale of a  controlled  substance  to  a
 child  IN THE SECOND DEGREE when, being over twenty-one years old, he or
 she knowingly and unlawfully sells WITHOUT CONSIDERATION OR OTHER  BENE-
 FIT  OR  GAIN  a  controlled substance in violation of section 220.34 or
 220.39 of this article to a person less than [seventeen] EIGHTEEN  years
 old.
   Criminal  sale  of  a  controlled  substance  to a child IN THE SECOND
 DEGREE is a class B felony.
   § 8. The penal law is amended by adding a new section 220.49  to  read
 as follows:
 § 220.49 CRIMINAL SALE OF A CONTROLLED SUBSTANCE TO A CHILD IN THE FIRST
            DEGREE.
   A  PERSON  IS  GUILTY  OF CRIMINAL SALE OF A CONTROLLED SUBSTANCE TO A
 CHILD IN THE FIRST DEGREE WHEN, BEING OVER TWENTY-ONE YEARS OLD,  HE  OR
 SHE  KNOWINGLY AND UNLAWFULLY SELLS A CONTROLLED SUBSTANCE FOR CONSIDER-
 ATION OR OTHER BENEFIT OR GAIN IN VIOLATION OF SECTION 220.34 OR  220.39
 OF THIS ARTICLE TO A PERSON LESS THAN EIGHTEEN YEARS OLD.
   CRIMINAL SALE OF A CONTROLLED SUBSTANCE TO A CHILD IN THE FIRST DEGREE
 IS A CLASS A-II FELONY.
   §  9.  The  closing  paragraph  of section 220.50 of the penal law, as
 amended by chapter 627 of the laws  of  1990,  is  amended  to  read  as
 follows:
   Criminally using drug paraphernalia in the second degree is a class [A
 misdemeanor] E FELONY.
   §  10. Section 220.55 of the penal law, as added by chapter 970 of the
 laws of 1971, is amended to read as follows:
 § 220.55 Criminally using drug paraphernalia in the first degree.
   A person is guilty of criminally using drug paraphernalia in the first
 degree when he commits the crime of criminally using drug  paraphernalia
 in  the second degree and he has previously been convicted of criminally
 using drug paraphernalia in the second degree.
   Criminally using drug paraphernalia in the first degree is a class [D]
 C felony.
   § 11. Subdivision 15 of section 220.00 of the penal law, as  added  by
 chapter 118 of the laws of 1986, is amended to read as follows:
   15.  "Prescription  for  a  controlled substance" means a direction or
 authorization, by means of an official New York state prescription form,
 AN ELECTRONIC PRESCRIPTION, a  written  prescription  form  or  an  oral
 A. 6967                             5
 
 prescription, which will permit a person to lawfully obtain a controlled
 substance from any person authorized to dispense controlled substances.
   § 12. Section 220.65 of the penal law, as amended by chapter 31 of the
 laws of 2014, is amended to read as follows:
 § 220.65 Criminal  sale  of a prescription for a controlled substance, A
            BLANK PRESCRIPTION FORM or of a  controlled  substance  by  a
            practitioner or pharmacist.
   A person is guilty of criminal sale of a prescription for a controlled
 substance,  A  BLANK PRESCRIPTION FORM or of a controlled substance by a
 practitioner or pharmacist when: 1. being a practitioner, as  that  term
 is defined in section thirty-three hundred two of the public health law,
 he or she knowingly and unlawfully sells a prescription for a controlled
 substance  OR  A  BLANK  PRESCRIPTION  FORM.  For  the  purposes of this
 section, a person sells a prescription for a controlled substance  OR  A
 BLANK  PRESCRIPTION FORM unlawfully when he or she does so other than in
 good faith in the course of his or her professional practice; or
   2. being a practitioner or pharmacist, as those terms are  defined  in
 section  thirty-three  hundred  two of the public health law, he or she,
 acting other than in good faith, while  purporting  to  act  within  the
 scope  of  the power, authority and privileges of his or her license, as
 that term is defined in section thirty-three hundred two of  the  public
 health  law,  knowingly and unlawfully sells a controlled substance OR A
 BLANK PRESCRIPTION FORM.
   Criminal sale of a prescription for a controlled  substance,  A  BLANK
 PRESCRIPTION  FORM  or  of  a  controlled substance by a practitioner or
 pharmacist is a class [C] B felony.
   § 13. This act shall  take  effect  on  the  first  of  November  next
 succeeding the date upon which it shall have become a law.