senate Bill S5260C

2011-2012 Legislative Session

Relates to criminal diversion of prescription medications and prescriptions, establishing certain other offenses related thereto

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Archive: Last Bill Status - Passed Senate


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Feb 13, 2012 referred to codes
delivered to assembly
passed senate
Feb 07, 2012 advanced to third reading
amended 5260c
Feb 06, 2012 2nd report cal.
Jan 31, 2012 1st report cal.161
Jan 04, 2012 referred to codes
returned to senate
died in assembly
Jun 14, 2011 referred to codes
delivered to assembly
passed senate
ordered to third reading cal.1247
Jun 13, 2011 committee discharged and committed to rules
Jun 10, 2011 print number 5260b
amend and recommit to codes
Jun 02, 2011 print number 5260a
amend (t) and recommit to codes
May 03, 2011 referred to codes

Votes

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Jan 31, 2012 - Codes committee Vote

S5260B
14
1
committee
14
Aye
1
Nay
0
Aye with Reservations
0
Absent
1
Excused
0
Abstained
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Jun 14, 2011 - Rules committee Vote

S5260B
22
0
committee
22
Aye
0
Nay
2
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show committee vote details

Bill Amendments

Original
A
B
C (Active)
Original
A
B
C (Active)

S5260 - Bill Details

See Assembly Version of this Bill:
A7251C
Current Committee:
Law Section:
Penal Law
Laws Affected:
Amd §§178.00 - 178.25, add §178.30, Art 179 §§179.00 - 179.15, Title M Art 219 §§219.00 - 219.30, Pen L

S5260 - Bill Texts

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Relates to criminal diversion of prescription medications and prescriptions; establishes the offense of fraudulent prescription, dispensing and procurement of non-controlled substance prescription medications and devices; establishes the offense of unlawful possession of non-controlled substance prescription medications and devices.

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BILL NUMBER:S5260

TITLE OF BILL:
An act
to amend the penal law, in relation to criminal diversion of
prescription medications and prescriptions, establishing the offense of
fraudulent prescription, dispensing and procurement of non-controlled
substance prescription medications and devices and establishing the
offense of unlawful possession of non-controlled substance prescription
medications and devices

PURPOSE OR GENERAL IDEA OF BILL:
This bill would address the growing black market in prescription drugs
by restructuring the existing crime of prescription medications and
adding a new Penal Law article 179 entitled Fraudulent Prescription,
Dispensing and Procurement of Non-controlled Substance Prescription
Medications and Devices.

SUMMARY OF SPECIFIC PROVISIONS:
Sections 1 through 7 of the bill restructure the existing crime of
criminal diversion of prescription medications and prescriptions by
amending Penal Law ("PL") sections 178.00, 178.05, 178.10, 178.15,
178.20 and 178.25 and by adding a new section 178.30. This
restructuring enhances sanctions when unlawful criminal diversion
acts are committed on multiple occasions within a given period of
time, and when such acts are committed by a physician, pharmacist or
other person authorized to.issue a prescription or to dispense
prescription medications and devices. Section 178.00 is amended to
clarify that transactions between undercover agents and those who
commit criminal diversion acts may be prosecuted, and section 178.05
is amended to clarify that those seeking to obtain a lawful
prescription or prescription medication, and those seeking to assist
such persons, are exempt from prosecution for criminal diversion.

Section 8 of the bill adds a new PL Article 179 entitled Fraudulent
Prescription, Dispensing and Procurement of Non-controlled Substance
Prescription Medications and Devices. New PL §179.00 defines the
terms prescription medication or device, prescription, controlled
substance, dispensing and dispenses for purposes of new Article 179.
New PL §179.05 establishes the crime of fraudulent prescription,
dispensing and procurement of non-controlled substance prescription
medications and devices in the third degree; it is a D felony. New PL
§179.10 creates that crime in the second degree, as a C felony, and
new PL §179.15 creates that crime in the first degree, as a B felony.

Section 9 of the bill adds a new PL Article 219 entitled Unlawful
Possession of Non-Controlled Substance Prescription Medications and
Devices. New PL §219 defines terms for purposes of the new article
and new PL §219.05 sets out limitations on application of the new
article. New PL §§ 219.10, 219.15, 219.20, 219.25 and 219.30
establish the crimes of unlawful possession of non-controlled
substance prescription medications and devices in the fifth to first
degrees.

JUSTIFICATION:


There has been an exploding black market in non-controlled substance
prescription medications. Non-controlled substance prescription
medications include AIDS medication, asthma medication, and
anti-psychotic medication, among many others. These
medications, usually the most expensive, are most often paid for with
Medicaid dollars and sold on the street for a fraction of their
actual value. The purchasers of these medications bring the
medications to a stash house where they are collected and re-sold
back to unscrupulous pharmacies or shipped overseas. This has many
severe consequences:

* Sick patients are not taking their medications and instead are
selling them on the street for cash.

* Unsuspecting patients can purchase drugs that have been illegally
re-sold to the pharmacy without any quality control over the storage
or maintenance of the medication.

* Medicaid is paying huge sums for medications that are dispensed under
fraudulent circumstances. For example, an unscrupulous pharmacy can
charge Medicaid for a medicine that it has purchased at a
significantly lower price through the black market. Most likely
Medicaid has already paid for this medicine on an earlier occasion
when it was dispensed to a sick person who subsequently sold the
medicine on the street.

The current law did not contemplate the large-scale illegal market in
these drugs. As a result, there is either no penalty or insufficient
penalties for the following conduct:

* repeatedly purchasing non-controlled substance prescription
medications by someone with no medical need for the medication (the
people who are buying up medications for the black market) ;

* possession of large quantities of non-controlled substance
prescription medications by someone with no lawful basis for the
prescription (the people who have the stash houses for the black
market medicine),

* the writing of fraudulent prescriptions by physicians to "patients"
with no medical need for the medication; and

* the purchasing or dispensing of medications by pharmacists who have
obtained the medication through the black market.

PRIOR LEGISLATIVE HISTORY:;
New bill.

FISCAL IMPLICATIONS:;
To be determined.

EFFECTIVE DATE:
This act shall take effect 90 days after becoming a law.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5260

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by  Sen.  HANNON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the penal law, in  relation  to  criminal  diversion  of
  prescription  medications  and prescriptions, establishing the offense
  of fraudulent prescription, dispensing and  procurement  of  non-cont-
  rolled substance prescription medications and devices and establishing
  the   offense  of  unlawful  possession  of  non-controlled  substance
  prescription medications and devices

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Paragraphs (c) and (d) of subdivision 3 of section 178.00
of the penal law, as added by chapter  81  of  the  laws  of  1995,  are
amended to read as follows:
  (c)   RECEIVES,  IN  EXCHANGE  FOR  ANYTHING  OF  PECUNIARY  VALUE,  A
PRESCRIPTION MEDICATION OR DEVICE FROM A LAW ENFORCEMENT OFFICER  ACTING
IN  AN  UNDERCOVER  CAPACITY  OR  HIS  OR HER AGENT, BELIEVING OR HAVING
REASONABLE GROUND TO BELIEVE THAT THE OFFICER OR HIS  OR  HER  AGENT  IS
SOMEONE  WHO  IS  NOT  AUTHORIZED  BY  LAW  TO  SELL  OR  TRANSFER  SUCH
PRESCRIPTION MEDICATION OR DEVICE; OR
  (D) transfers or delivers a prescription in exchange for  anything  of
pecuniary value; or
  [(d)]  (E) receives a prescription in exchange for anything of pecuni-
ary value.
  S 2. Paragraph (c) of subdivision 1 of section  178.05  of  the  penal
law,  as added by chapter 81 of the laws of 1995, is amended and two new
paragraphs (d) and (e) are added to read as follows:
  (c) a person acting in good faith WHO  IS  seeking  [treatment  for  a
medical  condition or assisting another person to obtain treatment for a
medical condition] TO OBTAIN A PRESCRIPTION, PRESCRIPTION MEDICATION  OR
DEVICE THAT HAS BEEN LAWFULLY PRESCRIBED TO HIM OR HER, AND FOR WHICH HE
OR SHE HAS A MEDICAL NEED; OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10939-01-1

S. 5260                             2

  (D)  A PERSON ACTING IN GOOD FAITH, WHO REASONABLY BELIEVES THAT HE OR
SHE IS ASSISTING ANOTHER PERSON TO OBTAIN A  PRESCRIPTION,  PRESCRIPTION
MEDICATION  OR  DEVICE  THAT  HAS BEEN LAWFULLY PRESCRIBED TO THAT OTHER
PERSON; OR
  (E)  A DULY REGISTERED MANUFACTURER OR WHOLESALER OF DRUGS, AS DEFINED
IN ARTICLE ONE HUNDRED THIRTY-SEVEN OF THE EDUCATION LAW, ACTING IN GOOD
FAITH IN THE LAWFUL COURSE OF HIS OR HER BUSINESS.
  S 3. Section 178.10 of the penal law, as added by chapter  81  of  the
laws of 1995, is amended to read as follows:
S 178.10 Criminal    diversion    of    prescription   medications   and
           prescriptions in the [fourth] FIFTH degree.
  A person is guilty of criminal diversion of  prescription  medications
and  prescriptions in the [fourth] FIFTH degree when he or she commits a
criminal diversion act.
  Criminal diversion of prescription medications  and  prescriptions  in
the [fourth] FIFTH degree is a class A misdemeanor.
  S  4.  Section  178.15 of the penal law, as added by chapter 81 of the
law of 1995, is amended to read as follows:
S 178.15 Criminal   diversion   of    prescription    medications    and
           prescriptions in the [third] FOURTH degree.
  A  person  is guilty of criminal diversion of prescription medications
and prescriptions in the [third] FOURTH degree when he or she:
  1. commits a criminal diversion act, and  the  value  of  the  benefit
exchanged is in excess of one thousand dollars; or
  2. commits the crime of criminal diversion of prescription medications
and  prescriptions  in  the  fourth  degree,  and  has  previously  been
convicted of the crime of criminal diversion of prescription medications
and prescriptions [in the fourth degree]; OR
  3. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND PRESCRIPTIONS IN THE FIFTH DEGREE ON TWO OR MORE  OCCASIONS  OVER  A
THIRTY-FIVE DAY PERIOD.
  Criminal  diversion  of  prescription medications and prescriptions in
the [third] FOURTH degree is a class E felony.
  S 5.  Section 178.20 of the penal law, as added by chapter 81  of  the
laws of 1995, is amended to read as follows:
S 178.20 Criminal    diversion    of    prescription   medications   and
           prescriptions in the [second] THIRD degree.
  A person is guilty of criminal diversion of  prescription  medications
and prescriptions in the [second] THIRD degree when he or she:
  1.  commits  a  criminal  diversion  act, and the value of the benefit
exchanged is in excess of three thousand dollars; OR
  2. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND PRESCRIPTIONS IN THE FIFTH DEGREE ON FOUR OR MORE OCCASIONS  OVER  A
THIRTY-FIVE DAY PERIOD; OR
  3.    COMMITS  THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICA-
TIONS AND PRESCRIPTIONS IN THE FIFTH DEGREE, AND IS:
  (A) A PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION; OR
  (B) A PHARMACIST OR OTHER PERSON AUTHORIZED TO  DISPENSE  PRESCRIPTION
MEDICATIONS AND DEVICES.
  Criminal  diversion  of  prescription medications and prescriptions in
the [second] THIRD degree is a class D felony.
  S 6. Section 178.25 of the penal law, as added by chapter  81  of  the
laws of 1995, is amended to read as follows:
S 178.25 Criminal    diversion    of    prescription   medications   and
           prescriptions in the [first] SECOND degree.

S. 5260                             3

  A person is guilty of criminal diversion of  prescription  medications
and prescriptions in the [first] SECOND degree when he or she:
  1.  commits  a  criminal  diversion  act, and the value of the benefit
exchanged is in excess of fifty thousand dollars; OR
  2. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND PRESCRIPTIONS IN THE FIFTH DEGREE ON SIX OR MORE  OCCASIONS  OVER  A
THIRTY-FIVE DAY PERIOD; OR
  3. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND  PRESCRIPTIONS  IN  THE FIFTH DEGREE ON TWO OR MORE OCCASIONS OVER A
NINETY DAY PERIOD, AND IS:
  (A) A PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION; OR
  (B) A PHARMACIST OR OTHER PERSON AUTHORIZED TO  DISPENSE  PRESCRIPTION
MEDICATIONS AND DEVICES.
  Criminal  diversion  of  prescription medications and prescriptions in
the [first] SECOND degree is a class C felony.
  S 7. The penal law is amended by adding a new section 178.30  to  read
as follows:
S 178.30 CRIMINAL    DIVERSION    OF    PRESCRIPTION   MEDICATIONS   AND
           PRESCRIPTIONS IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF CRIMINAL DIVERSION OF  PRESCRIPTION  MEDICATIONS
AND  PRESCRIPTIONS  IN THE FIRST DEGREE WHEN HE OR SHE COMMITS THE CRIME
OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS  OR  PRESCRIPTIONS  IN
THE FIFTH DEGREE ON FIVE OR MORE OCCASIONS OVER A NINETY DAY PERIOD, AND
IS:
  (A) A PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION; OR
  (B)  A  PHARMACIST OR OTHER PERSON AUTHORIZED TO DISPENSE PRESCRIPTION
MEDICATIONS AND DEVICES.
  CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS  AND  PRESCRIPTIONS  IN
THE FIRST DEGREE IS A CLASS B FELONY.
  S  8.  The penal law is amended by adding a new article 179 to read as
follows:
                               ARTICLE 179
         FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF
      NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
SECTION 179.00 DEFINITIONS.
        179.05 FRAUDULENT PRESCRIPTION, DISPENSING  AND  PROCUREMENT  OF
                 NON-CONTROLLED  SUBSTANCE  PRESCRIPTION MEDICATIONS AND
                 DEVICES IN THE THIRD DEGREE.
        179.10 FRAUDULENT PRESCRIPTION, DISPENSING  AND  PROCUREMENT  OF
                 NON-CONTROLLED  SUBSTANCE  PRESCRIPTION MEDICATIONS AND
                 DEVICES IN THE SECOND DEGREE.
        179.15 FRAUDULENT PRESCRIPTION, DISPENSING  AND  PROCUREMENT  OF
                 NON-CONTROLLED  SUBSTANCE  PRESCRIPTION MEDICATIONS AND
                 DEVICES IN THE FIRST DEGREE.
S 179.00 DEFINITIONS.
  THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:
  1. "PRESCRIPTION MEDICATION OR DEVICE" MEANS ANY ARTICLE FOR  WHICH  A
PRESCRIPTION  IS  REQUIRED  IN  ORDER  TO BE LAWFULLY SOLD, DELIVERED OR
DISTRIBUTED BY ANY PERSON AUTHORIZED BY LAW TO ENGAGE IN THE PRACTICE OF
THE PROFESSION OF PHARMACY.
  2. "PRESCRIPTION" MEANS A DIRECTION OR AUTHORIZATION  BY  MEANS  OF  A
WRITTEN PRESCRIPTION FORM OR AN ORAL PRESCRIPTION WHICH PERMITS A PERSON
TO  LAWFULLY  OBTAIN A PRESCRIPTION MEDICATION OR DEVICE FROM ANY PERSON
AUTHORIZED TO DISPENSE SUCH PRESCRIPTION MEDICATION OR DEVICE.
  3. "CONTROLLED SUBSTANCE" MEANS ANY SUBSTANCE LISTED  IN  SCHEDULE  I,
II,  III,  IV  OR  V  OF  SECTION THIRTY-THREE HUNDRED SIX OF THE PUBLIC

S. 5260                             4

HEALTH LAW OTHER THAN MARIHUANA, BUT INCLUDING CONCENTRATED CANNABIS  AS
DEFINED  IN  PARAGRAPH  (A)  OF SUBDIVISION FOUR OF SECTION THIRTY-THREE
HUNDRED TWO OF SUCH LAW.
  4.   "DISPENSING"  AND  "DISPENSES"  REFER  TO  THE  DISPENSING  OF  A
PRESCRIPTION MEDICATION OR DEVICE FROM OR WITHIN A  PHARMACY,  HOSPITAL,
PHYSICIAN'S OFFICE, CLINIC OR OTHER PHARMACEUTICAL OR MEDICAL FACILITY.
S 179.05 FRAUDULENT   PRESCRIPTION,   DISPENSING   AND   PROCUREMENT  OF
           NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
           IN THE THIRD DEGREE.
  A PERSON IS GUILTY OF FRAUDULENT PRESCRIPTION, DISPENSING AND PROCURE-
MENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN
THE THIRD DEGREE WHEN HE OR SHE:
  1.  ISSUES  A  WRITTEN  OR  ORAL  PRESCRIPTION  FOR  A  NON-CONTROLLED
SUBSTANCE  PRESCRIPTION MEDICATION OR DEVICE, AND IS NOT A DULY LICENSED
PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE SUCH PRESCRIPTION; OR
  2. DISPENSES A NON-CONTROLLED  SUBSTANCE  PRESCRIPTION  MEDICATION  OR
DEVICE, WITH KNOWLEDGE OR REASONABLE GROUNDS TO KNOW THAT:
  (A)  THE  PERSON FOR WHOM THE MEDICATION OR DEVICE HAS BEEN PRESCRIBED
HAS NO MEDICAL NEED FOR SUCH MEDICATION OR DEVICE; OR
  (B) NO PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS ISSUED BY A DULY
LICENSED  PHYSICIAN  OR  OTHER   PERSON   AUTHORIZED   TO   ISSUE   SUCH
PRESCRIPTION; OR
  (C) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS FORGED; OR
  (D)  THE  PRESCRIPTION  FOR  SUCH MEDICATION OR DEVICE WAS ISSUED BY A
DULY LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE  SUCH
PRESCRIPTION  WHO  WAS  ACTING  OTHER  THAN  IN GOOD FAITH IN THE LAWFUL
COURSE OF HIS OR HER PROFESSIONAL PRACTICE.
  3. PRESENTS OR SUBMITS A PRESCRIPTION FOR A  NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATION  OR  DEVICE  TO,  OR  RECEIVES A NON-CONTROLLED
SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE FROM, A DULY LICENSED  PHAR-
MACIST  OR OTHER PERSON AUTHORIZED TO DISPENSE SUCH PRESCRIPTION MEDICA-
TION OR DEVICE, WITH KNOWLEDGE OR REASONABLE GROUNDS TO KNOW THAT:
  (A) THE PERSON FOR WHOM THE MEDICATION OR DEVICE HAS  BEEN  PRESCRIBED
HAS NO MEDICAL NEED FOR SUCH MEDICATION OR DEVICE; OR
  (B) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS NOT ISSUED BY A
DULY  LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE SUCH
PRESCRIPTION; OR
  (C) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS FORGED; OR
  (D) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE  WAS  ISSUED  BY  A
DULY  LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE SUCH
PRESCRIPTION WHO WAS ACTING OTHER THAN  IN  GOOD  FAITH  IN  THE  LAWFUL
COURSE OF HIS OR HER PROFESSIONAL PRACTICE.
  FRAUDULENT  PRESCRIPTION, DISPENSING AND PROCUREMENT OF NON-CONTROLLED
SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN THE THIRD DEGREE IS  A
CLASS D FELONY.
S 179.10 FRAUDULENT   PRESCRIPTION,   DISPENSING   AND   PROCUREMENT  OF
           NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
           IN THE SECOND DEGREE.
  A PERSON IS GUILTY OF FRAUDULENT PRESCRIPTION, DISPENSING AND PROCURE-
MENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN
THE SECOND DEGREE WHEN HE OR SHE:
  1. BEING A DULY LICENSED PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE
A PRESCRIPTION, ISSUES A WRITTEN OR ORAL PRESCRIPTION  FOR  A  NON-CONT-
ROLLED  SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE, OR DISPENSES A NON-
CONTROLLED SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE:

S. 5260                             5

  (A) WITH KNOWLEDGE OR REASONABLE GROUNDS TO KNOW THAT THE  PERSON  FOR
WHOM  THE  PRESCRIPTION  IS  WRITTEN,  OR  TO  WHOM  THE  MEDICATION  IS
DISPENSED, HAS NO MEDICAL NEED FOR THE  MEDICATION  OR  DEVICE  THAT  IS
BEING PRESCRIBED; OR
  (B)  OTHER  THAN  IN  GOOD  FAITH  IN  THE LAWFUL COURSE OF HIS OR HER
PROFESSIONAL PRACTICE; OR
  2. BEING A DULY LICENSED PHARMACIST  OR  OTHER  PERSON  AUTHORIZED  TO
DISPENSE A PRESCRIPTION MEDICATION OR DEVICE, DISPENSES A NON-CONTROLLED
SUBSTANCE  PRESCRIPTION  MEDICATION OR DEVICE, WITH KNOWLEDGE OR REASON-
ABLE GROUNDS TO KNOW THAT:
  (A) THE PERSON FOR WHOM THE MEDICATION OR DEVICE HAS  BEEN  PRESCRIBED
HAS NO MEDICAL NEED FOR SUCH MEDICATION OR DEVICE; OR
  (B) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS NOT ISSUED BY A
DULY  LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE SUCH
PRESCRIPTION; OR
  (C) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS FORGED; OR
  (D) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE  WAS  ISSUED  BY  A
DULY  LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE SUCH
PRESCRIPTION WHO WAS ACTING OTHER THAN  IN  GOOD  FAITH  IN  THE  LAWFUL
COURSE OF HIS OR HER PROFESSIONAL PRACTICE.
  FRAUDULENT  PRESCRIPTION, DISPENSING AND PROCUREMENT OF NON-CONTROLLED
SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN THE SECOND DEGREE IS A
CLASS C FELONY.
S 179.15 FRAUDULENT  PRESCRIPTION,   DISPENSING   AND   PROCUREMENT   OF
           NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
           IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF FRAUDULENT PRESCRIPTION, DISPENSING AND PROCURE-
MENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN
THE  FIRST DEGREE WHEN HE OR SHE, BEING EITHER A DULY LICENSED PHYSICIAN
OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION, OR A  DULY  LICENSED
PHARMACIST OR OTHER PERSON AUTHORIZED TO DISPENSE A PRESCRIPTION MEDICA-
TION OR DEVICE, COMMITS THE CRIME OF FRAUDULENT PRESCRIPTION, DISPENSING
AND PROCUREMENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND
DEVICES  IN  THE  SECOND DEGREE ON TWO OR MORE OCCASIONS WITHIN A NINETY
DAY PERIOD.
  FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF  NON-CONTROLLED
SUBSTANCE  PRESCRIPTION MEDICATIONS AND DEVICES IN THE FIRST DEGREE IS A
CLASS B FELONY.
  S 9. Title M of the penal law is amended by adding a new  article  219
to read as follows:
                               ARTICLE 219
      UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE PRESCRIPTION
                         MEDICATIONS AND DEVICES
SECTION 219.00 DEFINITIONS.
        219.05 LIMITATIONS ON APPLICATION OF ARTICLE.
        219.10 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  FIFTH
                 DEGREE.
        219.15 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION MEDICATIONS  AND  DEVICES  IN  THE  FOURTH
                 DEGREE.
        219.20 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  THIRD
                 DEGREE.

S. 5260                             6

        219.25 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION MEDICATIONS  AND  DEVICES  IN  THE  SECOND
                 DEGREE.
        219.30 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  FIRST
                 DEGREE.
S 219.00 DEFINITIONS.
  THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:
  1.  "PRESCRIPTION  MEDICATION OR DEVICE" MEANS ANY ARTICLE FOR WHICH A
PRESCRIPTION IS REQUIRED IN ORDER TO  BE  LAWFULLY  SOLD,  DELIVERED  OR
DISTRIBUTED BY ANY PERSON AUTHORIZED BY LAW TO ENGAGE IN THE PRACTICE OF
THE PROFESSION OF PHARMACY.
  2.  "PRESCRIPTION"  MEANS  A  DIRECTION OR AUTHORIZATION BY MEANS OF A
WRITTEN PRESCRIPTION FORM OR AN ORAL PRESCRIPTION WHICH PERMITS A PERSON
TO LAWFULLY OBTAIN A PRESCRIPTION MEDICATION OR DEVICE FROM  ANY  PERSON
AUTHORIZED TO DISPENSE SUCH PRESCRIPTION MEDICATION OR DEVICE.
  3.  "CONTROLLED  SUBSTANCE"  MEANS ANY SUBSTANCE LISTED IN SCHEDULE I,
II, III, IV OR V OF SECTION  THIRTY-THREE  HUNDRED  SIX  OF  THE  PUBLIC
HEALTH  LAW OTHER THAN MARIHUANA, BUT INCLUDING CONCENTRATED CANNABIS AS
DEFINED IN PARAGRAPH (A) OF SUBDIVISION  FOUR  OF  SECTION  THIRTY-THREE
HUNDRED TWO OF SUCH LAW.
  4.  THE  VALUE  OF A PRESCRIPTION MEDICATION OR DEVICE SHALL BE EQUIV-
ALENT TO THE FAIR MARKET VALUE OF  SUCH  MEDICATION  OR  DEVICE  ON  THE
LAWFUL  RETAIL  MARKET,  AT  ABOUT  THE TIME AND PLACE THAT THE CRIME IS
COMMITTED.
S 219.05 LIMITATIONS ON APPLICATION OF ARTICLE.
  THE PROVISIONS OF THIS ARTICLE RESTRICTING THE UNLAWFUL POSSESSION  OF
NON-CONTROLLED  SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES SHALL NOT
APPLY:
  1. TO COMMON CARRIERS OR TO WAREHOUSEMEN, WHILE  ENGAGED  IN  LAWFULLY
TRANSPORTING OR STORING SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDI-
CATIONS  AND  DEVICES,  OR TO ANY EMPLOYEE OF THE SAME ACTING WITHIN THE
SCOPE OF HIS OR HER EMPLOYMENT; OR
  2. TO PUBLIC OFFICERS OR THEIR EMPLOYEES IN THE LAWFUL PERFORMANCE  OF
THEIR  OFFICIAL  DUTIES  REQUIRING  THE  POSSESSION  OR  CONTROL OF SUCH
NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES; OR
  3. TO TEMPORARY  INCIDENTAL  POSSESSION  BY  EMPLOYEES  OR  AGENTS  OF
PERSONS  LAWFULLY  ENTITLED  TO  POSSESS  SUCH  NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES, OR BY PERSONS WHOSE POSSESSION  IS
FOR  THE  PURPOSE OF AIDING PUBLIC OFFICERS IN PERFORMING THEIR OFFICIAL
DUTIES; OR
  4. TO A DULY LICENSED  PHYSICIAN,  DULY  LICENSED  PHARMACIST  OR  THE
PERSON  AUTHORIZED  TO POSSESS OR DISPENSE SUCH NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES, ACTING IN GOOD FAITH IN THE LAWFUL
COURSE OF HIS OR HER PROFESSION; OR
  5. TO TEMPORARY INCIDENTAL POSSESSION BY A PERSON ACTING IN GOOD FAITH
WHO REASONABLY BELIEVES THAT HE OR SHE IS ASSISTING  ANOTHER  PERSON  TO
OBTAIN A NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE THAT
HAS BEEN LAWFULLY PRESCRIBED TO THAT OTHER PERSON.
S 219.10 UNLAWFUL  POSSESSION  OF  NON-CONTROLLED SUBSTANCE PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE FIFTH DEGREE.
  A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  FIFTH DEGREE WHEN SUCH
PERSON  KNOWINGLY  POSSESSES  ONE  OR  MORE   NON-CONTROLLED   SUBSTANCE
PRESCRIPTION  MEDICATIONS  OR DEVICES WHICH WERE NOT LAWFULLY PRESCRIBED
TO HIM OR HER; AND

S. 5260                             7

  1. THE AGGREGATE VALUE OF SUCH NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS TWO HUNDRED DOLLARS; OR
  2.  HE  OR  SHE POSSESSES TWENTY OR MORE PILLS, TABLETS OR CAPSULES OF
SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
TIONS AND DEVICES IN THE FIFTH DEGREE IS A CLASS A MISDEMEANOR.
S  219.15  UNLAWFUL  POSSESSION OF NON-CONTROLLED SUBSTANCE PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE FOURTH DEGREE.
  A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES IN THE FOURTH DEGREE WHEN HE OR SHE
KNOWINGLY  AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY  PRESCRIBED
TO HIM OR HER; AND
  1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS FIVE HUNDRED DOLLARS; OR
  2. HE OR SHE POSSESSES FIFTY OR MORE PILLS,  TABLETS  OR  CAPSULES  OF
SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES; OR
  3. HE OR SHE POSSESSES A NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICA-
TION OR DEVICE WITH AN INTENT TO SELL IT; OR
  4.  HE  OR  SHE  COMMITS THE CRIME OF UNLAWFUL POSSESSION OF NON-CONT-
ROLLED PRESCRIPTION MEDICATIONS AND DEVICES IN THE FIFTH DEGREE, AND HAS
PREVIOUSLY BEEN  CONVICTED  OF  THE  CRIME  OF  UNLAWFUL  POSSESSION  OF
NON-CONTROLLED PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL  POSSESSION  OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICA-
TIONS AND DEVICES IN THE FOURTH DEGREE IS A CLASS E FELONY.
S 219.20 UNLAWFUL POSSESSION OF  NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE THIRD DEGREE.
  A  PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES IN THE THIRD DEGREE WHEN HE OR  SHE
KNOWINGLY  AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY  PRESCRIBED
TO HIM OR HER; AND
  1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS FIFTEEN HUNDRED DOLLARS; OR
  2. HE OR SHE POSSESSES ONE HUNDRED FIFTY OR  MORE  PILLS,  TABLETS  OR
CAPSULES  OF  SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND
DEVICES.
  UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
TIONS AND DEVICES IN THE THIRD DEGREE IS A CLASS D FELONY.
S 219.25 UNLAWFUL  POSSESSION  OF  NON-CONTROLLED SUBSTANCE PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE SECOND DEGREE.
  A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES IN THE SECOND DEGREE WHEN HE OR SHE
KNOWINGLY  AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY  PRESCRIBED
TO HIM OR HER; AND
  1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS TEN THOUSAND DOLLARS; OR
  2. HE OR SHE POSSESSES ONE THOUSAND OR MORE PILLS, TABLETS OR CAPSULES
OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
TIONS AND DEVICES IN THE SECOND DEGREE IS A CLASS C FELONY.
S 219.30 UNLAWFUL  POSSESSION  OF  NON-CONTROLLED SUBSTANCE PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS AND DEVICES IN THE FIRST DEGREE WHEN HE OR SHE

S. 5260                             8

KNOWINGLY AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY PRESCRIBED
TO HIM OR HER; AND
  1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS ONE HUNDRED THOUSAND DOLLARS; OR
  2. HE OR SHE POSSESSES TEN THOUSAND OR MORE PILLS, TABLETS OR CAPSULES
OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
TIONS AND DEVICES IN THE FIRST DEGREE IS A CLASS B FELONY.
  S  10.  This act shall take effect on the ninetieth day after it shall
have become a law.

Co-Sponsors

S5260A - Bill Details

See Assembly Version of this Bill:
A7251C
Current Committee:
Law Section:
Penal Law
Laws Affected:
Amd §§178.00 - 178.25, add §178.30, Art 179 §§179.00 - 179.15, Title M Art 219 §§219.00 - 219.30, Pen L

S5260A - Bill Texts

view summary

Relates to criminal diversion of prescription medications and prescriptions; establishes the offense of fraudulent prescription, dispensing and procurement of non-controlled substance prescription medications and devices; establishes the offense of unlawful possession of non-controlled substance prescription medications and devices.

view sponsor memo
BILL NUMBER:S5260A

TITLE OF BILL:
An act
to amend the penal law, in relation to criminal diversion of
prescription medications and prescriptions, establishing the offense of
fraudulent prescription, dispensing and procurement of non-controlled
substance prescription medications and devices, and establishing the
offense of unlawful possession of non-controlled substance prescription
medications and devices

PURPOSE OR GENERAL IDEA OF BILL:
This bill would address the growing black market in prescription drugs
by restructuring the existing crime of prescription medications and
adding a new Penal Law article 179 entitled Fraudulent Prescription,
Dispensing and Procurement of Non-controlled Substance Prescription
Medications and Devices.

SUMMARY OF SPECIFIC PROVISIONS:
Sections 1 through 7 of the bill restructure the existing crime of
criminal diversion of prescription medications and prescriptions by
amending Penal Law ("PL") sections 178.00, 178.05, 178.10, 178.15,
178.20 and 178.25 and by adding a new section 178.30. This
restructuring enhances sanctions when unlawful criminal diversion
acts are committed on multiple occasions within a given period of
time, when they involve the transfer of a prescription form, and when
such acts are committed by a physician, pharmacist or other person
authorized to issue a prescription or to dispense prescription
medications and devices. Section 178.00 is amended to clarify that
transactions between undercover agents and those who commit criminal
diversion acts may be prosecuted, and section 178.05 is amended to
clarify that those seeking to obtain a lawful prescription or
prescription medication, and those seeking to assist such persons,
are exempt from prosecution for criminal diversion.

Section 8 of the bill adds a new PL Article 179 entitled Fraudulent
Prescription, Dispensing and Procurement of Non-controlled Substance
Prescription Medications and Devices. New PL §179.00 defines the
terms prescription medication or device, prescription, controlled
substance, dispensing and dispenses for purposes of new Article 179.
New PL §179.05 establishes the crime of fraudulent prescription,
dispensing and procurement of non-controlled substance prescription
medications and devices in the third degree; it is a D felony. New PL
§179.10 creates that crime in the second degree, as a C felony, and
new PL §179.15 creates that crime in the first degree, as a B felony.

Section 9 of the bill adds a new PL Article 219 entitled Unlawful
Possession of Non-Controlled Substance Prescription Medications and
Devices. New PL §219 defines terms for purposes of the new article and
new PL §219.05 sets out limitations on application of the new article.
New PL §§ 219.10, 219.15, 219.20, 219.25 and 219.30 establish the

crimes of unlawful possession of non-controlled substance
prescription medications and devices in the fifth to first degrees.

JUSTIFICATION:
There has been an exploding black market in non-controlled substance
prescription medications. Non-controlled substance prescription
medications include AIDS medication, asthma medication, and
anti-psychotic medication, among many others. These medications,
usually the most expensive, are most often paid for with Medicaid
dollars and sold on the street for a fraction of their actual value.
The purchasers of these medications bring the medications to a stash
house where they are collected and re-sold back to unscrupulous
pharmacies or shipped overseas. This has many severe consequences:

* Sick patients are not taking their medications and instead are
selling them on the street for cash.

* Unsuspecting patients can purchase drugs that have been illegally
re-sold to the pharmacy without any quality control over the storage
or maintenance of the medication.

* Medicaid is paying huge sums for medications that are dispensed
under fraudulent circumstances. For example, an unscrupulous pharmacy
can charge Medicaid for a medicine that it has purchased at a
significantly lower price through the black market. Most likely
Medicaid has already paid for this medicine on an earlier occasion
when it was dispensed to a sick person who subsequently sold the
medicine on the street.

The current law did not contemplate the large-scale illegal market in
these drugs. As a result, there is either no penalty or insufficient
penalties for the following conduct:

* repeatedly purchasing non-controlled substance prescription
medications by someone with no medical need for the medication (the
people who are buying up medications for the black market);

* possession of large quantities of non-controlled substance
prescription medications by someone with no lawful basis for the
prescription (the people who have the stash houses for the black
market medicine);

* the writing of fraudulent prescriptions by physicians to "patients"
with no medical need for the medication; and

* the purchasing or dispensing of medications by pharmacists who have
obtained the medication through the black market.

PRIOR LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS:

To be determined.

EFFECTIVE DATE:
This act shall take effect 90 days after becoming a law.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5260--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by  Sen.  HANNON -- read twice and ordered printed, and when
  printed to be  committed  to  the  Committee  on  Codes  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to  amend  the  penal law, in relation to criminal diversion of
  prescription medications and prescriptions, establishing  the  offense
  of  fraudulent  prescription,  dispensing and procurement of non-cont-
  rolled substance prescription medications and devices, and  establish-
  ing  the  offense  of  unlawful possession of non-controlled substance
  prescription medications and devices

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.  Section 178.00 of the penal law, as added by chapter 81 of
the laws of 1995, is amended to read as follows:
S 178.00 Criminal    diversion    of    prescription   medications   and
           prescriptions; definitions.
  The following definitions are applicable to this article:
  1. "Prescription medication or device" means any article for  which  a
prescription  is  required  in  order  to be lawfully sold, delivered or
distributed by any person authorized by law to engage in the practice of
the profession of pharmacy.
  2. "Prescription" means a direction or authorization  by  means  of  a
written   prescription   form,   ELECTRONIC   PRESCRIPTION  or  an  oral
prescription which permits a person to lawfully  obtain  a  prescription
medication  or  device  from  any  person  authorized  to  dispense such
prescription medication or device.
  3. "PRESCRIPTION FORM"  MEANS  AN  OFFICIAL  STATE  PRESCRIPTION  FORM
AUTHORIZED  BY  A  STATE  FOR  USE BY HEALTH PRACTITIONERS AUTHORIZED TO
WRITE PRESCRIPTIONS.
  4. "Criminal diversion act" means an act or acts  in  which  a  person
knowingly:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10939-02-1

S. 5260--A                          2

  (a)  transfers  or  delivers,  in  exchange  for anything of pecuniary
value, a prescription medication or device with knowledge or  reasonable
grounds to know that the recipient has no medical need for it; or
  (b)   receives,  in  exchange  for  anything  of  pecuniary  value,  a
prescription medication or device with knowledge or  reasonable  grounds
to  know  that the seller or transferor is not authorized by law to sell
or transfer such prescription medication or device; or
  (c)  RECEIVES,  IN  EXCHANGE  FOR  ANYTHING  OF  PECUNIARY  VALUE,   A
PRESCRIPTION  MEDICATION  OR  DEVICE, PRESCRIPTION, OR PRESCRIPTION FORM
FROM A LAW ENFORCEMENT OFFICER ACTING IN AN UNDERCOVER CAPACITY  OR  HIS
OR  HER AGENT, BELIEVING OR HAVING REASONABLE GROUND TO BELIEVE THAT THE
OFFICER OR HIS OR HER AGENT IS SOMEONE WHO IS NOT AUTHORIZED BY  LAW  TO
SELL  OR  TRANSFER SUCH PRESCRIPTION MEDICATION OR DEVICE, PRESCRIPTION,
OR PRESCRIPTION FORM; OR
  (D) transfers or delivers  a  prescription  OR  PRESCRIPTION  FORM  in
exchange for anything of pecuniary value; or
  [(d)] (E) receives a prescription OR PRESCRIPTION FORM in exchange for
anything of pecuniary value.
  S  2.  Paragraph  (c)  of subdivision 1 of section 178.05 of the penal
law, as added by chapter 81 of the laws of 1995, is amended and two  new
paragraphs (d) and (e) are added to read as follows:
  (c)  a  person  acting  in  good faith WHO IS seeking [treatment for a
medical condition or assisting another person to obtain treatment for  a
medical  condition] TO OBTAIN A PRESCRIPTION, PRESCRIPTION MEDICATION OR
DEVICE THAT HAS BEEN LAWFULLY PRESCRIBED TO HIM OR HER, AND FOR WHICH HE
OR SHE HAS A MEDICAL NEED; OR
  (D) A PERSON ACTING IN GOOD FAITH, WHO REASONABLY BELIEVES THAT HE  OR
SHE  IS  ASSISTING ANOTHER PERSON TO OBTAIN A PRESCRIPTION, PRESCRIPTION
MEDICATION OR DEVICE THAT HAS BEEN LAWFULLY  PRESCRIBED  TO  THAT  OTHER
PERSON; OR
  (E)  A DULY REGISTERED MANUFACTURER OR WHOLESALER OF DRUGS, AS DEFINED
IN ARTICLE ONE HUNDRED THIRTY-SEVEN OF THE EDUCATION LAW, ACTING IN GOOD
FAITH IN THE LAWFUL COURSE OF HIS OR HER BUSINESS.
  S 3. Section 178.10 of the penal law, as added by chapter  81  of  the
laws of 1995, is amended to read as follows:
S 178.10 Criminal    diversion    of    prescription   medications   and
           prescriptions in the [fourth] FIFTH degree.
  A person is guilty of criminal diversion of  prescription  medications
and  prescriptions in the [fourth] FIFTH degree when he or she commits a
criminal diversion act.
  Criminal diversion of prescription medications  and  prescriptions  in
the [fourth] FIFTH degree is a class A misdemeanor.
  S  4.  Section  178.15 of the penal law, as added by chapter 81 of the
law of 1995, is amended to read as follows:
S 178.15 Criminal   diversion   of    prescription    medications    and
           prescriptions in the [third] FOURTH degree.
  A  person  is guilty of criminal diversion of prescription medications
and prescriptions in the [third] FOURTH degree when he or she:
  1. commits a criminal diversion act, and  the  value  of  the  benefit
exchanged is in excess of one thousand dollars; or
  2. commits the crime of criminal diversion of prescription medications
and  prescriptions  in  the  fourth  degree,  and  has  previously  been
convicted of the crime of criminal diversion of prescription medications
and prescriptions [in the fourth degree]; OR

S. 5260--A                          3

  3. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND PRESCRIPTIONS IN THE FIFTH DEGREE ON TWO OR MORE  OCCASIONS  OVER  A
THIRTY-FIVE DAY PERIOD.
  Criminal  diversion  of  prescription medications and prescriptions in
the [third] FOURTH degree is a class E felony.
  S 5.  Section 178.20 of the penal law, as added by chapter 81  of  the
laws of 1995, is amended to read as follows:
S 178.20 Criminal    diversion    of    prescription   medications   and
           prescriptions in the [second] THIRD degree.
  A person is guilty of criminal diversion of  prescription  medications
and prescriptions in the [second] THIRD degree when he or she:
  1.  commits  a  criminal  diversion  act, and the value of the benefit
exchanged is in excess of three thousand dollars; OR
  2. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND PRESCRIPTIONS IN THE FIFTH DEGREE ON FOUR OR MORE OCCASIONS  OVER  A
THIRTY-FIVE DAY PERIOD; OR
  3.    COMMITS  THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICA-
TIONS AND PRESCRIPTIONS IN THE FIFTH DEGREE, AND IS:
  (A) A PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION; OR
  (B) A PHARMACIST OR OTHER PERSON AUTHORIZED TO  DISPENSE  PRESCRIPTION
MEDICATIONS AND DEVICES.
  Criminal  diversion  of  prescription medications and prescriptions in
the [second] THIRD degree is a class D felony.
  S 6. Section 178.25 of the penal law, as added by chapter  81  of  the
laws of 1995, is amended to read as follows:
S 178.25 Criminal    diversion    of    prescription   medications   and
           prescriptions in the [first] SECOND degree.
  A person is guilty of criminal diversion of  prescription  medications
and prescriptions in the [first] SECOND degree when he or she:
  1.  commits  a  criminal  diversion  act, and the value of the benefit
exchanged is in excess of fifty thousand dollars; OR
  2. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND PRESCRIPTIONS IN THE FIFTH DEGREE ON SIX OR MORE  OCCASIONS  OVER  A
THIRTY-FIVE DAY PERIOD; OR
  3. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND  PRESCRIPTIONS  IN  THE FIFTH DEGREE ON TWO OR MORE OCCASIONS OVER A
NINETY DAY PERIOD, AND IS:
  (A) A PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION; OR
  (B) A PHARMACIST OR OTHER PERSON AUTHORIZED TO  DISPENSE  PRESCRIPTION
MEDICATIONS AND DEVICES.
  Criminal  diversion  of  prescription medications and prescriptions in
the [first] SECOND degree is a class C felony.
  S 7. The penal law is amended by adding a new section 178.30  to  read
as follows:
S 178.30 CRIMINAL    DIVERSION    OF    PRESCRIPTION   MEDICATIONS   AND
           PRESCRIPTIONS IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF CRIMINAL DIVERSION OF  PRESCRIPTION  MEDICATIONS
AND  PRESCRIPTIONS  IN THE FIRST DEGREE WHEN HE OR SHE COMMITS THE CRIME
OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS  OR  PRESCRIPTIONS  IN
THE FIFTH DEGREE ON FIVE OR MORE OCCASIONS OVER A NINETY DAY PERIOD, AND
IS:
  (A) A PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION; OR
  (B)  A  PHARMACIST OR OTHER PERSON AUTHORIZED TO DISPENSE PRESCRIPTION
MEDICATIONS AND DEVICES.
  CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS  AND  PRESCRIPTIONS  IN
THE FIRST DEGREE IS A CLASS B FELONY.

S. 5260--A                          4

  S  8.  The penal law is amended by adding a new article 179 to read as
follows:
                               ARTICLE 179
         FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF
      NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
SECTION 179.00 DEFINITIONS.
        179.05 FRAUDULENT  PRESCRIPTION,  DISPENSING  AND PROCUREMENT OF
                 NON-CONTROLLED SUBSTANCE PRESCRIPTION  MEDICATIONS  AND
                 DEVICES IN THE THIRD DEGREE.
        179.10 FRAUDULENT  PRESCRIPTION,  DISPENSING  AND PROCUREMENT OF
                 NON-CONTROLLED SUBSTANCE PRESCRIPTION  MEDICATIONS  AND
                 DEVICES IN THE SECOND DEGREE.
        179.15 FRAUDULENT  PRESCRIPTION,  DISPENSING  AND PROCUREMENT OF
                 NON-CONTROLLED SUBSTANCE PRESCRIPTION  MEDICATIONS  AND
                 DEVICES IN THE FIRST DEGREE.
S 179.00 DEFINITIONS.
  THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:
  1.  "PRESCRIPTION  MEDICATION OR DEVICE" MEANS ANY ARTICLE FOR WHICH A
PRESCRIPTION IS REQUIRED IN ORDER TO  BE  LAWFULLY  SOLD,  DELIVERED  OR
DISTRIBUTED BY ANY PERSON AUTHORIZED BY LAW TO ENGAGE IN THE PRACTICE OF
THE PROFESSION OF PHARMACY.
  2.  "PRESCRIPTION"  MEANS  A  DIRECTION OR AUTHORIZATION BY MEANS OF A
WRITTEN  PRESCRIPTION  FORM,  AN  ELECTRONIC  PRESCRIPTION  OR  AN  ORAL
PRESCRIPTION  WHICH  PERMITS  A PERSON TO LAWFULLY OBTAIN A PRESCRIPTION
MEDICATION OR  DEVICE  FROM  ANY  PERSON  AUTHORIZED  TO  DISPENSE  SUCH
PRESCRIPTION MEDICATION OR DEVICE.
  3.  "CONTROLLED  SUBSTANCE"  MEANS ANY SUBSTANCE LISTED IN SCHEDULE I,
II, III, IV OR V OF SECTION  THIRTY-THREE  HUNDRED  SIX  OF  THE  PUBLIC
HEALTH  LAW OTHER THAN MARIHUANA, BUT INCLUDING CONCENTRATED CANNABIS AS
DEFINED IN PARAGRAPH (A) OF SUBDIVISION  FOUR  OF  SECTION  THIRTY-THREE
HUNDRED TWO OF SUCH LAW.
  4.   "DISPENSING"  AND  "DISPENSES"  REFER  TO  THE  DISPENSING  OF  A
PRESCRIPTION MEDICATION OR DEVICE FROM OR WITHIN A  PHARMACY,  HOSPITAL,
PHYSICIAN'S OFFICE, CLINIC OR OTHER PHARMACEUTICAL OR MEDICAL FACILITY.
S 179.05 FRAUDULENT   PRESCRIPTION,   DISPENSING   AND   PROCUREMENT  OF
           NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
           IN THE THIRD DEGREE.
  A PERSON IS GUILTY OF FRAUDULENT PRESCRIPTION, DISPENSING AND PROCURE-
MENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN
THE THIRD DEGREE WHEN HE OR SHE:
  1. ISSUES A WRITTEN, ELECTRONIC OR ORAL PRESCRIPTION FOR  A  NON-CONT-
ROLLED  SUBSTANCE  PRESCRIPTION  MEDICATION OR DEVICE, AND IS NOT A DULY
LICENSED  PHYSICIAN  OR  OTHER   PERSON   AUTHORIZED   TO   ISSUE   SUCH
PRESCRIPTION; OR
  2.  DISPENSES  A  NON-CONTROLLED  SUBSTANCE PRESCRIPTION MEDICATION OR
DEVICE, WITH KNOWLEDGE OR REASONABLE GROUNDS TO KNOW THAT:
  (A) THE PERSON FOR WHOM THE MEDICATION OR DEVICE HAS  BEEN  PRESCRIBED
HAS NO MEDICAL NEED FOR SUCH MEDICATION OR DEVICE; OR
  (B) NO PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS ISSUED BY A DULY
LICENSED   PHYSICIAN   OR   OTHER   PERSON   AUTHORIZED  TO  ISSUE  SUCH
PRESCRIPTION; OR
  (C) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS FORGED; OR
  (D) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE  WAS  ISSUED  BY  A
DULY  LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE SUCH
PRESCRIPTION WHO WAS ACTING OTHER THAN  IN  GOOD  FAITH  IN  THE  LAWFUL
COURSE OF HIS OR HER PROFESSIONAL PRACTICE.

S. 5260--A                          5

  3.  PRESENTS  OR SUBMITS A PRESCRIPTION FOR A NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATION OR  DEVICE  TO,  OR  RECEIVES  A  NON-CONTROLLED
SUBSTANCE  PRESCRIPTION MEDICATION OR DEVICE FROM, A DULY LICENSED PHAR-
MACIST OR OTHER PERSON AUTHORIZED TO DISPENSE SUCH PRESCRIPTION  MEDICA-
TION OR DEVICE, WITH KNOWLEDGE OR REASONABLE GROUNDS TO KNOW THAT:
  (A)  THE  PERSON FOR WHOM THE MEDICATION OR DEVICE HAS BEEN PRESCRIBED
HAS NO MEDICAL NEED FOR SUCH MEDICATION OR DEVICE; OR
  (B) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS NOT ISSUED BY A
DULY LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE  SUCH
PRESCRIPTION; OR
  (C) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS FORGED; OR
  (D)  THE  PRESCRIPTION  FOR  SUCH MEDICATION OR DEVICE WAS ISSUED BY A
DULY LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE  SUCH
PRESCRIPTION  WHO  WAS  ACTING  OTHER  THAN  IN GOOD FAITH IN THE LAWFUL
COURSE OF HIS OR HER PROFESSIONAL PRACTICE.
  FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF  NON-CONTROLLED
SUBSTANCE  PRESCRIPTION MEDICATIONS AND DEVICES IN THE THIRD DEGREE IS A
CLASS D FELONY.
S 179.10 FRAUDULENT  PRESCRIPTION,   DISPENSING   AND   PROCUREMENT   OF
           NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
           IN THE SECOND DEGREE.
  A PERSON IS GUILTY OF FRAUDULENT PRESCRIPTION, DISPENSING AND PROCURE-
MENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN
THE SECOND DEGREE WHEN HE OR SHE:
  1. BEING A DULY LICENSED PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE
A  PRESCRIPTION, ISSUES A WRITTEN, ELECTRONIC OR ORAL PRESCRIPTION FOR A
NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE, OR DISPENSES
A NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE:
  (A) WITH KNOWLEDGE OR REASONABLE GROUNDS TO KNOW THAT THE  PERSON  FOR
WHOM THE PRESCRIPTION IS ISSUED, OR TO WHOM THE MEDICATION IS DISPENSED,
HAS  NO  MEDICAL  NEED  FOR  THE  MEDICATION  OR  DEVICE  THAT  IS BEING
PRESCRIBED; OR
  (B) OTHER THAN IN GOOD FAITH IN  THE  LAWFUL  COURSE  OF  HIS  OR  HER
PROFESSIONAL PRACTICE; OR
  2.  BEING  A  DULY  LICENSED  PHARMACIST OR OTHER PERSON AUTHORIZED TO
DISPENSE A PRESCRIPTION MEDICATION OR DEVICE, DISPENSES A NON-CONTROLLED
SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE, WITH KNOWLEDGE  OR  REASON-
ABLE GROUNDS TO KNOW THAT:
  (A)  THE  PERSON FOR WHOM THE MEDICATION OR DEVICE HAS BEEN PRESCRIBED
HAS NO MEDICAL NEED FOR SUCH MEDICATION OR DEVICE; OR
  (B) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS NOT ISSUED BY A
DULY LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE  SUCH
PRESCRIPTION; OR
  (C) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS FORGED; OR
  (D)  THE  PRESCRIPTION  FOR  SUCH MEDICATION OR DEVICE WAS ISSUED BY A
DULY LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE  SUCH
PRESCRIPTION  WHO  WAS  ACTING  OTHER  THAN  IN GOOD FAITH IN THE LAWFUL
COURSE OF HIS OR HER PROFESSIONAL PRACTICE.
  FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF  NON-CONTROLLED
SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN THE SECOND DEGREE IS A
CLASS C FELONY.
S 179.15 FRAUDULENT   PRESCRIPTION,   DISPENSING   AND   PROCUREMENT  OF
           NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
           IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF FRAUDULENT PRESCRIPTION, DISPENSING AND PROCURE-
MENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN

S. 5260--A                          6

THE FIRST DEGREE WHEN HE OR SHE, BEING EITHER A DULY LICENSED  PHYSICIAN
OR  OTHER  PERSON AUTHORIZED TO ISSUE A PRESCRIPTION, OR A DULY LICENSED
PHARMACIST OR OTHER PERSON AUTHORIZED TO DISPENSE A PRESCRIPTION MEDICA-
TION OR DEVICE, COMMITS THE CRIME OF FRAUDULENT PRESCRIPTION, DISPENSING
AND PROCUREMENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND
DEVICES  IN  THE  SECOND DEGREE ON TWO OR MORE OCCASIONS WITHIN A NINETY
DAY PERIOD.
  FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF  NON-CONTROLLED
SUBSTANCE  PRESCRIPTION MEDICATIONS AND DEVICES IN THE FIRST DEGREE IS A
CLASS B FELONY.
  S 9. Title M of the penal law is amended by adding a new  article  219
to read as follows:
                               ARTICLE 219
      UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE PRESCRIPTION
                         MEDICATIONS AND DEVICES
SECTION 219.00 DEFINITIONS.
        219.05 LIMITATIONS ON APPLICATION OF ARTICLE.
        219.10 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  FIFTH
                 DEGREE.
        219.15 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION MEDICATIONS  AND  DEVICES  IN  THE  FOURTH
                 DEGREE.
        219.20 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  THIRD
                 DEGREE.
        219.25 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION MEDICATIONS  AND  DEVICES  IN  THE  SECOND
                 DEGREE.
        219.30 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  FIRST
                 DEGREE.
S 219.00 DEFINITIONS.
  THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:
  1.  "PRESCRIPTION  MEDICATION OR DEVICE" MEANS ANY ARTICLE FOR WHICH A
PRESCRIPTION IS REQUIRED IN ORDER TO  BE  LAWFULLY  SOLD,  DELIVERED  OR
DISTRIBUTED BY ANY PERSON AUTHORIZED BY LAW TO ENGAGE IN THE PRACTICE OF
THE PROFESSION OF PHARMACY.
  2.  "PRESCRIPTION"  MEANS  A  DIRECTION OR AUTHORIZATION BY MEANS OF A
WRITTEN  PRESCRIPTION  FORM,  AN  ELECTRONIC  PRESCRIPTION  OR  AN  ORAL
PRESCRIPTION  WHICH  PERMITS  A PERSON TO LAWFULLY OBTAIN A PRESCRIPTION
MEDICATION OR  DEVICE  FROM  ANY  PERSON  AUTHORIZED  TO  DISPENSE  SUCH
PRESCRIPTION MEDICATION OR DEVICE.
  3.  "CONTROLLED  SUBSTANCE"  MEANS ANY SUBSTANCE LISTED IN SCHEDULE I,
II, III, IV OR V OF SECTION  THIRTY-THREE  HUNDRED  SIX  OF  THE  PUBLIC
HEALTH  LAW OTHER THAN MARIHUANA, BUT INCLUDING CONCENTRATED CANNABIS AS
DEFINED IN PARAGRAPH (A) OF SUBDIVISION  FOUR  OF  SECTION  THIRTY-THREE
HUNDRED TWO OF SUCH LAW.
  4.  THE  VALUE  OF A PRESCRIPTION MEDICATION OR DEVICE SHALL BE EQUIV-
ALENT TO THE FAIR MARKET VALUE OF  SUCH  MEDICATION  OR  DEVICE  ON  THE
LAWFUL  RETAIL  MARKET,  AT  ABOUT  THE TIME AND PLACE THAT THE CRIME IS
COMMITTED.
S 219.05 LIMITATIONS ON APPLICATION OF ARTICLE.
  THE PROVISIONS OF THIS ARTICLE RESTRICTING THE UNLAWFUL POSSESSION  OF
NON-CONTROLLED  SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES SHALL NOT
APPLY:

S. 5260--A                          7

  1. TO COMMON CARRIERS OR TO WAREHOUSEMEN, WHILE  ENGAGED  IN  LAWFULLY
TRANSPORTING OR STORING SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDI-
CATIONS  AND  DEVICES,  OR TO ANY EMPLOYEE OF THE SAME ACTING WITHIN THE
SCOPE OF HIS OR HER EMPLOYMENT; OR
  2.  TO PUBLIC OFFICERS OR THEIR EMPLOYEES IN THE LAWFUL PERFORMANCE OF
THEIR OFFICIAL DUTIES  REQUIRING  THE  POSSESSION  OR  CONTROL  OF  SUCH
NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES; OR
  3.  TO  TEMPORARY  INCIDENTAL  POSSESSION  BY  EMPLOYEES  OR AGENTS OF
PERSONS LAWFULLY  ENTITLED  TO  POSSESS  SUCH  NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS AND DEVICES, OR BY PERSONS WHOSE POSSESSION IS
FOR THE PURPOSE OF AIDING PUBLIC OFFICERS IN PERFORMING  THEIR  OFFICIAL
DUTIES; OR
  4.  TO  A  DULY  LICENSED PHYSICIAN, DULY LICENSED PHARMACIST OR OTHER
PERSON AUTHORIZED TO POSSESS OR DISPENSE SUCH  NON-CONTROLLED  SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES, ACTING IN GOOD FAITH IN THE LAWFUL
COURSE OF HIS OR HER PROFESSION; OR
  5. TO TEMPORARY INCIDENTAL POSSESSION BY A PERSON ACTING IN GOOD FAITH
WHO  REASONABLY  BELIEVES  THAT HE OR SHE IS ASSISTING ANOTHER PERSON TO
OBTAIN A NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE THAT
HAS BEEN LAWFULLY PRESCRIBED TO THAT OTHER PERSON.
S 219.10 UNLAWFUL POSSESSION OF  NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE FIFTH DEGREE.
  A  PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES  IN  THE  FIFTH  DEGREE  WHEN  SUCH
PERSON   KNOWINGLY   POSSESSES  ONE  OR  MORE  NON-CONTROLLED  SUBSTANCE
PRESCRIPTION MEDICATIONS OR DEVICES WHICH WERE NOT  LAWFULLY  PRESCRIBED
TO HIM OR HER; AND
  1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS TWO HUNDRED DOLLARS; OR
  2. HE OR SHE POSSESSES TWENTY OR MORE PILLS, TABLETS  OR  CAPSULES  OF
SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL  POSSESSION  OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICA-
TIONS AND DEVICES IN THE FIFTH DEGREE IS A CLASS A MISDEMEANOR.
S 219.15 UNLAWFUL POSSESSION OF  NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE FOURTH DEGREE.
  A  PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES IN THE FOURTH DEGREE WHEN HE OR SHE
KNOWINGLY AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY PRESCRIBED
TO HIM OR HER; AND
  1. THE AGGREGATE VALUE OF SUCH NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS FIVE HUNDRED DOLLARS; OR
  2.  HE  OR  SHE  POSSESSES FIFTY OR MORE PILLS, TABLETS OR CAPSULES OF
SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES; OR
  3. HE OR SHE POSSESSES A NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICA-
TION OR DEVICE WITH AN INTENT TO SELL IT; OR
  4. HE OR SHE COMMITS THE CRIME OF  UNLAWFUL  POSSESSION  OF  NON-CONT-
ROLLED PRESCRIPTION MEDICATIONS AND DEVICES IN THE FIFTH DEGREE, AND HAS
PREVIOUSLY  BEEN  CONVICTED  OF  THE  CRIME  OF  UNLAWFUL  POSSESSION OF
NON-CONTROLLED PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
TIONS AND DEVICES IN THE FOURTH DEGREE IS A CLASS E FELONY.
S 219.20 UNLAWFUL  POSSESSION  OF  NON-CONTROLLED SUBSTANCE PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE THIRD DEGREE.
  A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS AND DEVICES IN THE THIRD DEGREE WHEN HE OR SHE

S. 5260--A                          8

KNOWINGLY AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY PRESCRIBED
TO HIM OR HER; AND
  1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS FIFTEEN HUNDRED DOLLARS; OR
  2. HE OR SHE POSSESSES ONE HUNDRED FIFTY OR  MORE  PILLS,  TABLETS  OR
CAPSULES  OF  SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND
DEVICES.
  UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
TIONS AND DEVICES IN THE THIRD DEGREE IS A CLASS D FELONY.
S 219.25 UNLAWFUL  POSSESSION  OF  NON-CONTROLLED SUBSTANCE PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE SECOND DEGREE.
  A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES IN THE SECOND DEGREE WHEN HE OR SHE
KNOWINGLY  AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY  PRESCRIBED
TO HIM OR HER; AND
  1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS TEN THOUSAND DOLLARS; OR
  2. HE OR SHE POSSESSES ONE THOUSAND OR MORE PILLS, TABLETS OR CAPSULES
OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
TIONS AND DEVICES IN THE SECOND DEGREE IS A CLASS C FELONY.
S 219.30 UNLAWFUL  POSSESSION  OF  NON-CONTROLLED SUBSTANCE PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS AND DEVICES IN THE FIRST DEGREE WHEN HE OR SHE
KNOWINGLY AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY PRESCRIBED
TO HIM OR HER; AND
  1. THE AGGREGATE VALUE OF SUCH NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS ONE HUNDRED THOUSAND DOLLARS; OR
  2. HE OR SHE POSSESSES TEN THOUSAND OR MORE PILLS, TABLETS OR CAPSULES
OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL  POSSESSION  OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICA-
TIONS AND DEVICES IN THE FIRST DEGREE IS A CLASS B FELONY.
  S 10. This act shall take effect on the ninetieth day after  it  shall
have become a law.

Co-Sponsors

S5260B - Bill Details

See Assembly Version of this Bill:
A7251C
Current Committee:
Law Section:
Penal Law
Laws Affected:
Amd §§178.00 - 178.25, add §178.30, Art 179 §§179.00 - 179.15, Title M Art 219 §§219.00 - 219.30, Pen L

S5260B - Bill Texts

view summary

Relates to criminal diversion of prescription medications and prescriptions; establishes the offense of fraudulent prescription, dispensing and procurement of non-controlled substance prescription medications and devices; establishes the offense of unlawful possession of non-controlled substance prescription medications and devices.

view sponsor memo
BILL NUMBER:S5260B

TITLE OF BILL:
An act
to amend the penal law, in relation to criminal diversion of
prescription medications and prescriptions, establishing the offense of
fraudulent prescription, dispensing and procurement of non-controlled
substance prescription medications and devices, and establishing the
offense of unlawful possession of non-controlled substance prescription
medications and devices

PURPOSE OR GENERAL IDEA OF BILL:
This bill would address the growing black market in prescription drugs
by restructuring the existing crime of prescription medications and
adding a new Penal Law article 179 entitled Fraudulent Prescription,
Dispensing and Procurement of Non-controlled Substance Prescription
Medications and Devices.

SUMMARY OF SPECIFIC PROVISIONS:
Sections 1 through 7 of the bill restructure the existing crime of
criminal diversion of prescription medications and prescriptions by
amending Penal Law ("PL") sections 178.00, 178.05, 178.10, 178.15,
178.20 and 178.25 and by adding a new section 178.30. This
restructuring enhances sanctions when unlawful criminal diversion
acts are committed on multiple occasions within a given period of
time, when they involve the transfer of a prescription form, and when
such acts are committed by a physician, pharmacist or other person
authorized to issue a prescription or to dispense prescription
medications and devices. Section 178.00 is amended to clarify that
transactions between undercover agents and those who commit criminal
diversion acts may be prosecuted, and section 178.05 is amended to
clarify that those seeking to obtain a lawful prescription or
prescription medication, and those seeking to assist such persons,
are exempt from prosecution for criminal diversion.

Section 8 of the bill adds a new PL Article 179 entitled Fraudulent
Prescription, Dispensing and Procurement of Non-controlled Substance
Prescription Medications and Devices. New PL §179.00 defines the
terms prescription medication or device, prescription, controlled
substance, dispensing and dispenses for purposes of new Article 179.
New PL §179.05 establishes the crime of fraudulent prescription,
dispensing and procurement of non-controlled substance prescription
medications and devices in the third degree; it is a D felony. New PL
§179.10 creates that crime in the second degree, as a C felony, and
new PL §179.15 creates that crime in the first degree. as a B felony.

Section 9 of the bill adds a new PL Article 219 entitled Unlawful
Possession of Non-Controlled Substance Prescription Medications and
Devices. New PL §219 defines terms for purposes of the new article and
new PL §219.05 sets out limitations on application of the new article.
New PL §§ 219.10, 219.15, 219.20, 219.25 and 219.30 establish the
crimes of unlawful possession of non-controlled substance
prescription medications and devices in the fifth to first degrees.

JUSTIFICATION:


There has been an exploding black market in non-controlled substance
prescription medications. Non-controlled substance prescription
medications include AIDS medication, asthma medication, and
anti-psychotic medication, among many others. These medications,
usually the most expensive, are most often paid for with Medicaid
dollars and sold on the street for a fraction of their actual value.
The purchasers of these medications bring the medications to a stash
house where they are collected and re-sold back to unscrupulous
pharmacies or shipped overseas. This has many severe consequences:

* Sick patients are not taking their medications and instead are
selling them on the street for cash.

* Unsuspecting patients can purchase drugs that have been illegally
re-sold to the pharmacy without any quality control over the storage
or maintenance of the medication.

* Medicaid is paying huge sums for medications that are dispensed
under fraudulent circumstances. For example, an unscrupulous pharmacy
can charge Medicaid for a medicine that it has purchased at a
significantly lower price through the black market. Most likely
Medicaid has already paid for this medicine on an earlier occasion
when it was dispensed to a sick person who subsequently sold the
medicine on the street.

The current law did not contemplate the large-scale illegal market in
these drugs. As a result, there is either no penalty or insufficient
penalties for the following conduct:

* repeatedly purchasing non-controlled substance prescription
medications by someone with no medical need for the medication (the
people who are buying up medications for the black market);

* possession of large quantities of non-controlled substance
prescription medications by someone with no lawful basis for the
prescription (the people who have the stash houses for the black
market medicine);

* the writing of fraudulent prescriptions by physicians to "patients"
with no medical need for the medication; and

* the purchasing or dispensing of medications by pharmacists who have
obtained the medication through the black market.

PRIOR LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS:
To be determined.

EFFECTIVE DATE:
This act shall take effect 90 days after becoming a law.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5260--B

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by  Sens. HANNON, GALLIVAN, SALAND -- read twice and ordered
  printed, and when printed to be committed to the Committee on Codes --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted  to  said committee -- committee discharged, bill amended,
  ordered reprinted as amended and recommitted to said committee

AN ACT to amend the penal law, in  relation  to  criminal  diversion  of
  prescription  medications  and prescriptions, establishing the offense
  of fraudulent prescription, dispensing and  procurement  of  non-cont-
  rolled  substance prescription medications and devices, and establish-
  ing the offense of unlawful  possession  of  non-controlled  substance
  prescription medications and devices

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.  Section 178.00 of the penal law, as added by chapter 81 of
the laws of 1995, is amended to read as follows:
S 178.00 Criminal   diversion   of    prescription    medications    and
           prescriptions; definitions.
  The following definitions are applicable to this article:
  1.  "Prescription  medication or device" means any article for which a
prescription is required in order to  be  lawfully  sold,  delivered  or
distributed by any person authorized by law to engage in the practice of
the profession of pharmacy.
  2.  "Prescription"  means  a  direction or authorization by means of a
written  prescription  form,  ELECTRONIC   PRESCRIPTION   or   an   oral
prescription  which  permits  a person to lawfully obtain a prescription
medication or  device  from  any  person  authorized  to  dispense  such
prescription medication or device.
  3.  "PRESCRIPTION  FORM"  MEANS  AN  OFFICIAL  STATE PRESCRIPTION FORM
AUTHORIZED BY A STATE FOR USE  BY  HEALTH  PRACTITIONERS  AUTHORIZED  TO
WRITE PRESCRIPTIONS.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10939-04-1

S. 5260--B                          2

  4.  "Criminal  diversion  act"  means an act or acts in which a person
knowingly:
  (a)  transfers  or  delivers,  in  exchange  for anything of pecuniary
value, a prescription medication or device with knowledge or  reasonable
grounds to know that the recipient has no medical need for it; or
  (b)   receives,  in  exchange  for  anything  of  pecuniary  value,  a
prescription medication or device with knowledge or  reasonable  grounds
to  know  that the seller or transferor is not authorized by law to sell
or transfer such prescription medication or device; or
  (c)  RECEIVES,  IN  EXCHANGE  FOR  ANYTHING  OF  PECUNIARY  VALUE,   A
PRESCRIPTION  MEDICATION  OR  DEVICE, PRESCRIPTION, OR PRESCRIPTION FORM
FROM A LAW ENFORCEMENT OFFICER ACTING IN AN UNDERCOVER CAPACITY  OR  HIS
OR  HER AGENT, BELIEVING OR HAVING REASONABLE GROUND TO BELIEVE THAT THE
OFFICER OR HIS OR HER AGENT IS SOMEONE WHO IS NOT AUTHORIZED BY  LAW  TO
SELL  OR  TRANSFER SUCH PRESCRIPTION MEDICATION OR DEVICE, PRESCRIPTION,
OR PRESCRIPTION FORM; OR
  (D) transfers or delivers  a  prescription  OR  PRESCRIPTION  FORM  in
exchange for anything of pecuniary value; or
  [(d)] (E) receives a prescription OR PRESCRIPTION FORM in exchange for
anything of pecuniary value.
  S  2.  Paragraph  (c)  of subdivision 1 of section 178.05 of the penal
law, as added by chapter 81 of the laws of 1995, is amended and two  new
paragraphs (d) and (e) are added to read as follows:
  (c)  a  person  acting  in  good faith WHO IS seeking [treatment for a
medical condition or assisting another person to obtain treatment for  a
medical  condition] TO OBTAIN A PRESCRIPTION, PRESCRIPTION MEDICATION OR
DEVICE THAT HAS BEEN LAWFULLY PRESCRIBED TO HIM OR HER, AND FOR WHICH HE
OR SHE HAS A MEDICAL NEED; OR
  (D) A PERSON ACTING IN GOOD FAITH, WHO REASONABLY BELIEVES THAT HE  OR
SHE  IS  ASSISTING ANOTHER PERSON TO OBTAIN A PRESCRIPTION, PRESCRIPTION
MEDICATION OR DEVICE THAT HAS BEEN LAWFULLY  PRESCRIBED  TO  THAT  OTHER
PERSON; OR
  (E)  A DULY REGISTERED MANUFACTURER OR WHOLESALER OF DRUGS, AS DEFINED
IN ARTICLE ONE HUNDRED THIRTY-SEVEN OF THE EDUCATION LAW, ACTING IN GOOD
FAITH IN THE LAWFUL COURSE OF HIS OR HER BUSINESS.
  S 3. Section 178.10 of the penal law, as added by chapter  81  of  the
laws of 1995, is amended to read as follows:
S 178.10 Criminal    diversion    of    prescription   medications   and
           prescriptions in the [fourth] FIFTH degree.
  A person is guilty of criminal diversion of  prescription  medications
and  prescriptions in the [fourth] FIFTH degree when he or she commits a
criminal diversion act.
  Criminal diversion of prescription medications  and  prescriptions  in
the [fourth] FIFTH degree is a class A misdemeanor.
  S  4.  Section  178.15 of the penal law, as added by chapter 81 of the
law of 1995, is amended to read as follows:
S 178.15 Criminal   diversion   of    prescription    medications    and
           prescriptions in the [third] FOURTH degree.
  A  person  is guilty of criminal diversion of prescription medications
and prescriptions in the [third] FOURTH degree when he or she:
  1. commits a criminal diversion act, and  the  value  of  the  benefit
exchanged is in excess of one thousand dollars; or
  2. commits the crime of criminal diversion of prescription medications
and  prescriptions  in  the  fourth  degree,  and  has  previously  been
convicted of the crime of criminal diversion of prescription medications
and prescriptions [in the fourth degree]; OR

S. 5260--B                          3

  3. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND PRESCRIPTIONS IN THE FIFTH DEGREE ON TWO OR MORE  OCCASIONS  OVER  A
THIRTY-FIVE DAY PERIOD.
  Criminal  diversion  of  prescription medications and prescriptions in
the [third] FOURTH degree is a class E felony.
  S 5.  Section 178.20 of the penal law, as added by chapter 81  of  the
laws of 1995, is amended to read as follows:
S 178.20 Criminal    diversion    of    prescription   medications   and
           prescriptions in the [second] THIRD degree.
  A person is guilty of criminal diversion of  prescription  medications
and prescriptions in the [second] THIRD degree when he or she:
  1.  commits  a  criminal  diversion  act, and the value of the benefit
exchanged is in excess of three thousand dollars; OR
  2. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND PRESCRIPTIONS IN THE FIFTH DEGREE ON FOUR OR MORE OCCASIONS  OVER  A
THIRTY-FIVE DAY PERIOD; OR
  3.    COMMITS  THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICA-
TIONS AND PRESCRIPTIONS IN THE FIFTH DEGREE, AND IS:
  (A) A PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION; OR
  (B) A PHARMACIST OR OTHER PERSON AUTHORIZED TO  DISPENSE  PRESCRIPTION
MEDICATIONS AND DEVICES.
  Criminal  diversion  of  prescription medications and prescriptions in
the [second] THIRD degree is a class D felony.
  S 6. Section 178.25 of the penal law, as added by chapter  81  of  the
laws of 1995, is amended to read as follows:
S 178.25 Criminal    diversion    of    prescription   medications   and
           prescriptions in the [first] SECOND degree.
  A person is guilty of criminal diversion of  prescription  medications
and prescriptions in the [first] SECOND degree when he or she:
  1.  commits  a  criminal  diversion  act, and the value of the benefit
exchanged is in excess of fifty thousand dollars; OR
  2. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND PRESCRIPTIONS IN THE FIFTH DEGREE ON SIX OR MORE  OCCASIONS  OVER  A
THIRTY-FIVE DAY PERIOD; OR
  3. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND  PRESCRIPTIONS  IN  THE FIFTH DEGREE ON TWO OR MORE OCCASIONS OVER A
NINETY DAY PERIOD, AND IS:
  (A) A PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION; OR
  (B) A PHARMACIST OR OTHER PERSON AUTHORIZED TO  DISPENSE  PRESCRIPTION
MEDICATIONS AND DEVICES.
  Criminal  diversion  of  prescription medications and prescriptions in
the [first] SECOND degree is a class C felony.
  S 7. The penal law is amended by adding a new section 178.30  to  read
as follows:
S 178.30 CRIMINAL    DIVERSION    OF    PRESCRIPTION   MEDICATIONS   AND
           PRESCRIPTIONS IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF CRIMINAL DIVERSION OF  PRESCRIPTION  MEDICATIONS
AND  PRESCRIPTIONS  IN THE FIRST DEGREE WHEN HE OR SHE COMMITS THE CRIME
OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS  OR  PRESCRIPTIONS  IN
THE FIFTH DEGREE ON FIVE OR MORE OCCASIONS OVER A NINETY DAY PERIOD, AND
IS:
  (A) A PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION; OR
  (B)  A  PHARMACIST OR OTHER PERSON AUTHORIZED TO DISPENSE PRESCRIPTION
MEDICATIONS AND DEVICES.
  CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS  AND  PRESCRIPTIONS  IN
THE FIRST DEGREE IS A CLASS B FELONY.

S. 5260--B                          4

  S  8.  The penal law is amended by adding a new article 179 to read as
follows:
                               ARTICLE 179
         FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF
      NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
SECTION 179.00 DEFINITIONS.
        179.05 FRAUDULENT  PRESCRIPTION,  DISPENSING  AND PROCUREMENT OF
                 NON-CONTROLLED SUBSTANCE PRESCRIPTION  MEDICATIONS  AND
                 DEVICES IN THE THIRD DEGREE.
        179.10 FRAUDULENT  PRESCRIPTION,  DISPENSING  AND PROCUREMENT OF
                 NON-CONTROLLED SUBSTANCE PRESCRIPTION  MEDICATIONS  AND
                 DEVICES IN THE SECOND DEGREE.
        179.15 FRAUDULENT  PRESCRIPTION,  DISPENSING  AND PROCUREMENT OF
                 NON-CONTROLLED SUBSTANCE PRESCRIPTION  MEDICATIONS  AND
                 DEVICES IN THE FIRST DEGREE.
S 179.00 DEFINITIONS.
  THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:
  1.  "PRESCRIPTION  MEDICATION OR DEVICE" MEANS ANY ARTICLE FOR WHICH A
PRESCRIPTION IS REQUIRED IN ORDER TO  BE  LAWFULLY  SOLD,  DELIVERED  OR
DISTRIBUTED BY ANY PERSON AUTHORIZED BY LAW TO ENGAGE IN THE PRACTICE OF
THE PROFESSION OF PHARMACY.
  2.  "PRESCRIPTION"  MEANS  A  DIRECTION OR AUTHORIZATION BY MEANS OF A
WRITTEN  PRESCRIPTION  FORM,  AN  ELECTRONIC  PRESCRIPTION  OR  AN  ORAL
PRESCRIPTION  WHICH  PERMITS  A PERSON TO LAWFULLY OBTAIN A PRESCRIPTION
MEDICATION OR  DEVICE  FROM  ANY  PERSON  AUTHORIZED  TO  DISPENSE  SUCH
PRESCRIPTION MEDICATION OR DEVICE.
  3.  "CONTROLLED  SUBSTANCE"  MEANS ANY SUBSTANCE LISTED IN SCHEDULE I,
II, III, IV OR V OF SECTION  THIRTY-THREE  HUNDRED  SIX  OF  THE  PUBLIC
HEALTH  LAW OTHER THAN MARIHUANA, BUT INCLUDING CONCENTRATED CANNABIS AS
DEFINED IN PARAGRAPH (A) OF SUBDIVISION  FOUR  OF  SECTION  THIRTY-THREE
HUNDRED TWO OF SUCH LAW.
  4.   "DISPENSING"  AND  "DISPENSES"  REFER  TO  THE  DISPENSING  OF  A
PRESCRIPTION MEDICATION OR DEVICE FROM OR WITHIN A  PHARMACY,  HOSPITAL,
PHYSICIAN'S OFFICE, CLINIC OR OTHER PHARMACEUTICAL OR MEDICAL FACILITY.
S 179.05 FRAUDULENT   PRESCRIPTION,   DISPENSING   AND   PROCUREMENT  OF
           NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
           IN THE THIRD DEGREE.
  A PERSON IS GUILTY OF FRAUDULENT PRESCRIPTION, DISPENSING AND PROCURE-
MENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN
THE THIRD DEGREE WHEN HE OR SHE:
  1. ISSUES A WRITTEN, ELECTRONIC OR ORAL PRESCRIPTION FOR  A  NON-CONT-
ROLLED  SUBSTANCE  PRESCRIPTION  MEDICATION OR DEVICE, AND IS NOT A DULY
LICENSED  PHYSICIAN  OR  OTHER   PERSON   AUTHORIZED   TO   ISSUE   SUCH
PRESCRIPTION; OR
  2.  DISPENSES  A  NON-CONTROLLED  SUBSTANCE PRESCRIPTION MEDICATION OR
DEVICE, WITH ACTUAL KNOWLEDGE THAT:
  (A) THE PERSON FOR WHOM THE MEDICATION OR DEVICE HAS  BEEN  PRESCRIBED
HAS NO MEDICAL NEED FOR SUCH MEDICATION OR DEVICE; OR
  (B) NO PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS ISSUED BY A DULY
LICENSED   PHYSICIAN   OR   OTHER   PERSON   AUTHORIZED  TO  ISSUE  SUCH
PRESCRIPTION; OR
  (C) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS FORGED; OR
  (D) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE  WAS  ISSUED  BY  A
DULY  LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE SUCH
PRESCRIPTION WHO WAS ACTING OTHER THAN  IN  GOOD  FAITH  IN  THE  LAWFUL
COURSE OF HIS OR HER PROFESSIONAL PRACTICE.

S. 5260--B                          5

  3.  PRESENTS  OR SUBMITS A PRESCRIPTION FOR A NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATION OR  DEVICE  TO,  OR  RECEIVES  A  NON-CONTROLLED
SUBSTANCE  PRESCRIPTION MEDICATION OR DEVICE FROM, A DULY LICENSED PHAR-
MACIST OR OTHER PERSON AUTHORIZED TO DISPENSE SUCH PRESCRIPTION  MEDICA-
TION OR DEVICE, WITH ACTUAL KNOWLEDGE THAT:
  (A)  THE  PERSON FOR WHOM THE MEDICATION OR DEVICE HAS BEEN PRESCRIBED
HAS NO MEDICAL NEED FOR SUCH MEDICATION OR DEVICE; OR
  (B) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS NOT ISSUED BY A
DULY LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE  SUCH
PRESCRIPTION; OR
  (C) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS FORGED; OR
  (D)  THE  PRESCRIPTION  FOR  SUCH MEDICATION OR DEVICE WAS ISSUED BY A
DULY LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE  SUCH
PRESCRIPTION  WHO  WAS  ACTING  OTHER  THAN  IN GOOD FAITH IN THE LAWFUL
COURSE OF HIS OR HER PROFESSIONAL PRACTICE.
  FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF  NON-CONTROLLED
SUBSTANCE  PRESCRIPTION MEDICATIONS AND DEVICES IN THE THIRD DEGREE IS A
CLASS D FELONY.
S 179.10 FRAUDULENT  PRESCRIPTION,   DISPENSING   AND   PROCUREMENT   OF
           NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
           IN THE SECOND DEGREE.
  A PERSON IS GUILTY OF FRAUDULENT PRESCRIPTION, DISPENSING AND PROCURE-
MENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN
THE SECOND DEGREE WHEN HE OR SHE:
  1. BEING A DULY LICENSED PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE
A  PRESCRIPTION, ISSUES A WRITTEN, ELECTRONIC OR ORAL PRESCRIPTION FOR A
NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE, OR DISPENSES
A NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE:
  (A) WITH ACTUAL KNOWLEDGE THAT THE PERSON FOR WHOM THE PRESCRIPTION IS
ISSUED, OR TO WHOM THE MEDICATION IS DISPENSED, HAS NO MEDICAL NEED  FOR
THE MEDICATION OR DEVICE THAT IS BEING PRESCRIBED; OR
  (B)  OTHER  THAN  IN  GOOD  FAITH  IN  THE LAWFUL COURSE OF HIS OR HER
PROFESSIONAL PRACTICE; OR
  2. BEING A DULY LICENSED PHARMACIST  OR  OTHER  PERSON  AUTHORIZED  TO
DISPENSE A PRESCRIPTION MEDICATION OR DEVICE, DISPENSES A NON-CONTROLLED
SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE, WITH ACTUAL KNOWLEDGE THAT:
  (A)  THE  PERSON FOR WHOM THE MEDICATION OR DEVICE HAS BEEN PRESCRIBED
HAS NO MEDICAL NEED FOR SUCH MEDICATION OR DEVICE; OR
  (B) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS NOT ISSUED BY A
DULY LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE  SUCH
PRESCRIPTION; OR
  (C) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS FORGED; OR
  (D)  THE  PRESCRIPTION  FOR  SUCH MEDICATION OR DEVICE WAS ISSUED BY A
DULY LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE  SUCH
PRESCRIPTION  WHO  WAS  ACTING  OTHER  THAN  IN GOOD FAITH IN THE LAWFUL
COURSE OF HIS OR HER PROFESSIONAL PRACTICE.
  FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF  NON-CONTROLLED
SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN THE SECOND DEGREE IS A
CLASS C FELONY.
S 179.15 FRAUDULENT   PRESCRIPTION,   DISPENSING   AND   PROCUREMENT  OF
           NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
           IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF FRAUDULENT PRESCRIPTION, DISPENSING AND PROCURE-
MENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN
THE FIRST DEGREE WHEN HE OR SHE, BEING EITHER A DULY LICENSED  PHYSICIAN
OR  OTHER  PERSON AUTHORIZED TO ISSUE A PRESCRIPTION, OR A DULY LICENSED

S. 5260--B                          6

PHARMACIST OR OTHER PERSON AUTHORIZED TO DISPENSE A PRESCRIPTION MEDICA-
TION OR DEVICE, COMMITS THE CRIME OF FRAUDULENT PRESCRIPTION, DISPENSING
AND PROCUREMENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND
DEVICES  IN  THE  SECOND DEGREE ON TWO OR MORE OCCASIONS WITHIN A NINETY
DAY PERIOD.
  FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF  NON-CONTROLLED
SUBSTANCE  PRESCRIPTION MEDICATIONS AND DEVICES IN THE FIRST DEGREE IS A
CLASS B FELONY.
  S 9. Title M of the penal law is amended by adding a new  article  219
to read as follows:
                               ARTICLE 219
      UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE PRESCRIPTION
                         MEDICATIONS AND DEVICES
SECTION 219.00 DEFINITIONS.
        219.05 LIMITATIONS ON APPLICATION OF ARTICLE.
        219.10 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  FIFTH
                 DEGREE.
        219.15 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION MEDICATIONS  AND  DEVICES  IN  THE  FOURTH
                 DEGREE.
        219.20 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  THIRD
                 DEGREE.
        219.25 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION MEDICATIONS  AND  DEVICES  IN  THE  SECOND
                 DEGREE.
        219.30 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  FIRST
                 DEGREE.
S 219.00 DEFINITIONS.
  THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:
  1.  "PRESCRIPTION  MEDICATION OR DEVICE" MEANS ANY ARTICLE FOR WHICH A
PRESCRIPTION IS REQUIRED IN ORDER TO  BE  LAWFULLY  SOLD,  DELIVERED  OR
DISTRIBUTED BY ANY PERSON AUTHORIZED BY LAW TO ENGAGE IN THE PRACTICE OF
THE PROFESSION OF PHARMACY.
  2.  "PRESCRIPTION"  MEANS  A  DIRECTION OR AUTHORIZATION BY MEANS OF A
WRITTEN  PRESCRIPTION  FORM,  AN  ELECTRONIC  PRESCRIPTION  OR  AN  ORAL
PRESCRIPTION  WHICH  PERMITS  A PERSON TO LAWFULLY OBTAIN A PRESCRIPTION
MEDICATION OR  DEVICE  FROM  ANY  PERSON  AUTHORIZED  TO  DISPENSE  SUCH
PRESCRIPTION MEDICATION OR DEVICE.
  3.  "CONTROLLED  SUBSTANCE"  MEANS ANY SUBSTANCE LISTED IN SCHEDULE I,
II, III, IV OR V OF SECTION  THIRTY-THREE  HUNDRED  SIX  OF  THE  PUBLIC
HEALTH  LAW OTHER THAN MARIHUANA, BUT INCLUDING CONCENTRATED CANNABIS AS
DEFINED IN PARAGRAPH (A) OF SUBDIVISION  FOUR  OF  SECTION  THIRTY-THREE
HUNDRED TWO OF SUCH LAW.
  4.  THE  VALUE  OF A PRESCRIPTION MEDICATION OR DEVICE SHALL BE EQUIV-
ALENT TO THE FAIR MARKET VALUE OF  SUCH  MEDICATION  OR  DEVICE  ON  THE
LAWFUL  RETAIL  MARKET,  AT  ABOUT  THE TIME AND PLACE THAT THE CRIME IS
COMMITTED.
S 219.05 LIMITATIONS ON APPLICATION OF ARTICLE.
  THE PROVISIONS OF THIS ARTICLE RESTRICTING THE UNLAWFUL POSSESSION  OF
NON-CONTROLLED  SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES SHALL NOT
APPLY:
  1. TO COMMON CARRIERS OR TO WAREHOUSEMEN, WHILE  ENGAGED  IN  LAWFULLY
TRANSPORTING OR STORING SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDI-

S. 5260--B                          7

CATIONS  AND  DEVICES,  OR TO ANY EMPLOYEE OF THE SAME ACTING WITHIN THE
SCOPE OF HIS OR HER EMPLOYMENT; OR
  2.  TO PUBLIC OFFICERS OR THEIR EMPLOYEES IN THE LAWFUL PERFORMANCE OF
THEIR OFFICIAL DUTIES  REQUIRING  THE  POSSESSION  OR  CONTROL  OF  SUCH
NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES; OR
  3.  TO  TEMPORARY  INCIDENTAL  POSSESSION  BY  EMPLOYEES  OR AGENTS OF
PERSONS LAWFULLY  ENTITLED  TO  POSSESS  SUCH  NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS AND DEVICES, OR BY PERSONS WHOSE POSSESSION IS
FOR THE PURPOSE OF AIDING PUBLIC OFFICERS IN PERFORMING  THEIR  OFFICIAL
DUTIES; OR
  4.  TO  A  DULY  LICENSED PHYSICIAN, DULY LICENSED PHARMACIST OR OTHER
PERSON AUTHORIZED TO POSSESS OR DISPENSE SUCH  NON-CONTROLLED  SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES, ACTING IN GOOD FAITH IN THE LAWFUL
COURSE OF HIS OR HER PROFESSION; OR
  5. TO TEMPORARY INCIDENTAL POSSESSION BY A PERSON ACTING IN GOOD FAITH
WHO  REASONABLY  BELIEVES  THAT HE OR SHE IS ASSISTING ANOTHER PERSON TO
OBTAIN A NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE THAT
HAS BEEN LAWFULLY PRESCRIBED TO THAT OTHER PERSON.
S 219.10 UNLAWFUL POSSESSION OF  NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE FIFTH DEGREE.
  A  PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES  IN  THE  FIFTH  DEGREE  WHEN  SUCH
PERSON   KNOWINGLY   POSSESSES  ONE  OR  MORE  NON-CONTROLLED  SUBSTANCE
PRESCRIPTION MEDICATIONS OR DEVICES WHICH WERE NOT  LAWFULLY  PRESCRIBED
TO  HIM OR HER, UNDER CIRCUMSTANCES EVINCING AN INTENT TO SELL THE SAME;
AND
  1. THE AGGREGATE VALUE OF SUCH NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS TWO HUNDRED DOLLARS; OR
  2.  HE  OR  SHE POSSESSES TWENTY OR MORE PILLS, TABLETS OR CAPSULES OF
SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
TIONS AND DEVICES IN THE FIFTH DEGREE IS A CLASS A MISDEMEANOR.
S  219.15  UNLAWFUL  POSSESSION OF NON-CONTROLLED SUBSTANCE PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE FOURTH DEGREE.
  A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES IN THE FOURTH DEGREE WHEN HE OR SHE
KNOWINGLY  AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY  PRESCRIBED
TO HIM OR HER; AND
  1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS FIVE HUNDRED DOLLARS; OR
  2. HE OR SHE POSSESSES FIFTY OR MORE PILLS,  TABLETS  OR  CAPSULES  OF
SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES; OR
  3. HE OR SHE POSSESSES A NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICA-
TION OR DEVICE WITH AN INTENT TO SELL IT; OR
  4.  HE  OR  SHE  COMMITS THE CRIME OF UNLAWFUL POSSESSION OF NON-CONT-
ROLLED PRESCRIPTION MEDICATIONS AND DEVICES IN THE FIFTH DEGREE, AND HAS
PREVIOUSLY BEEN  CONVICTED  OF  THE  CRIME  OF  UNLAWFUL  POSSESSION  OF
NON-CONTROLLED PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL  POSSESSION  OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICA-
TIONS AND DEVICES IN THE FOURTH DEGREE IS A CLASS E FELONY.
S 219.20 UNLAWFUL POSSESSION OF  NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE THIRD DEGREE.
  A  PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES IN THE THIRD DEGREE WHEN HE OR  SHE
KNOWINGLY  AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED SUBSTANCE

S. 5260--B                          8

PRESCRIPTION MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY  PRESCRIBED
TO HIM OR HER; AND
  1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS FIFTEEN HUNDRED DOLLARS; OR
  2. HE OR SHE POSSESSES ONE HUNDRED FIFTY OR  MORE  PILLS,  TABLETS  OR
CAPSULES  OF  SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND
DEVICES.
  UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
TIONS AND DEVICES IN THE THIRD DEGREE IS A CLASS D FELONY.
S 219.25 UNLAWFUL  POSSESSION  OF  NON-CONTROLLED SUBSTANCE PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE SECOND DEGREE.
  A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES IN THE SECOND DEGREE WHEN HE OR SHE
KNOWINGLY  AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY  PRESCRIBED
TO HIM OR HER; AND
  1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS TEN THOUSAND DOLLARS; OR
  2. HE OR SHE POSSESSES ONE THOUSAND OR MORE PILLS, TABLETS OR CAPSULES
OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
TIONS AND DEVICES IN THE SECOND DEGREE IS A CLASS C FELONY.
S 219.30 UNLAWFUL  POSSESSION  OF  NON-CONTROLLED SUBSTANCE PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS AND DEVICES IN THE FIRST DEGREE WHEN HE OR SHE
KNOWINGLY AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY PRESCRIBED
TO HIM OR HER; AND
  1. THE AGGREGATE VALUE OF SUCH NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS ONE HUNDRED THOUSAND DOLLARS; OR
  2. HE OR SHE POSSESSES TEN THOUSAND OR MORE PILLS, TABLETS OR CAPSULES
OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL  POSSESSION  OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICA-
TIONS AND DEVICES IN THE FIRST DEGREE IS A CLASS B FELONY.
  S 10. This act shall take effect on the ninetieth day after  it  shall
have become a law.

Co-Sponsors

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S5260C (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A7251C
Current Committee:
Law Section:
Penal Law
Laws Affected:
Amd §§178.00 - 178.25, add §178.30, Art 179 §§179.00 - 179.15, Title M Art 219 §§219.00 - 219.30, Pen L

S5260C (ACTIVE) - Bill Texts

view summary

Relates to criminal diversion of prescription medications and prescriptions; establishes the offense of fraudulent prescription, dispensing and procurement of non-controlled substance prescription medications and devices; establishes the offense of unlawful possession of non-controlled substance prescription medications and devices.

view sponsor memo
BILL NUMBER:S5260C

TITLE OF BILL:
An act
to amend the penal law, in relation to criminal diversion of
prescription medications and prescriptions, establishing the offense of
fraudulent prescription, dispensing and procurement of non-controlled
substance prescription medications and devices, and establishing the
offense of unlawful possession of non-controlled substance prescription
medications and devices

PURPOSE:
This bill would address the growing black market in prescription drugs
by restructuring the existing crime of prescription medications and
adding a new Penal Law article 179 entitled Fraudulent Prescription,
Dispensing and Procurement of Non-controlled Substance Prescription
Medications and Devices.

SUMMARY OF PROVISIONS:
Sections 1 through 7 of the bill restructure the existing crime of
criminal diversion of prescription medications and prescriptions by
amending Penal Law ("PL") sections 178.00, 178.05, 178.10, 178.15,
178.20 and 178.25 and by adding a new section 178.30. This
restructuring enhances sanctions when unlawful criminal diversion
acts are committed on multiple occasions within a given period of
time, and when such acts are committed by a physician, pharmacist or
other person authorized to issue a prescription or to dispense
prescription medications and devices. section 178.00 is amended to
clarify that transactions between undercover agents and those who
commit criminal diversion acts may be prosecuted, and section 178.05
is amended to clarify that those seeking to obtain a lawful
prescription or prescription medication, and those seeking to assist
such persons, are exempt from prosecution for criminal diversion.

Section 8 of the bill adds a new PL Article 179 entitled Fraudulent
Prescription, Dispensing and Procurement of Non-controlled substance
Prescription Medications and Devices. New PL §179.00 defines the
terms prescription medication or device, prescription, controlled
substance, dispensing and dispenses for purposes of new Article 179.
New PL §179.05 establishes the crime of fraudulent prescription,
dispensing and procurement
of non-controlled substance prescription medications and devices in
the third degree; it is a D felony. New PL §179.10 creates that crime
in the second degree, as a C felony, and new PL §179.15 creates that
crime in the first degree, as a B felony.

Section 9 of the bill adds a new PL Article 219 entitled unlawful
possession of Non-controlled Substance prescription Medications and
Devices. New PL §219 defines terms for purposes of the new article
and new PL §219.05 sets out limitations on application of the new
article. New PL §§ 219.10, 219.15, 219.20, 219.25 and 219.30
establish the crimes of unlawful possession of noncontrolled
substance prescription medications and devices in the fifth to first
degrees.


The amendments in the A-print added language regarding electronic
prescriptions and prescription forms. The phrase "electronic
prescription" was added to the definition of prescription in CPL
section 178.00(2), a definition of "prescription form" was added, and
both phrases were inserted as needed in .other parts of the bill. The
amendments in the B-print change the knowledge and intent language in
new PL sections 179.05 and 179.10 (changing "reasonable grounds to
know" to "actual knowledge") and new PL 219,10 (adding intent to sell
to the existing language that requires knowing possession).

JUSTIFICATION:
There has been an exploding black market in non-controlled substance
prescription medications. Non-controlled substance prescription
medications include AIDS medication, asthma medication, and
anti-psychotic medication, among many others. These medications,
11sually the most expensive, are most often paid for with Medicaid
dollars and sold on the street for a fraction of their actual value.
The purchasers of these medications bring the medications to a stash
house where they are collected and re-sold back to unscrupulous
pharmacies or shipped overseas. This has many severe consequences:

o Sick patients are not taking their medications and instead are
selling them on the street for cash.

o Unsuspecting patients can purchase drugs that have been illegally
re-sold to the pharmacy without any quality control over the storage
or maintenance of the medication.

o Medicaid is paying huge sums for medications that are dispensed
under fraudulent circumstances. For example, an unscrupulous pharmacy
can charge Medicaid for a medicine that it has purchased at a
significantly lower price through the black market. Most likely
Medicaid has already paid for this medicine on an earlier occasion
when it was dispensed to a sick person who subsequently sold the
medicine on the street.

The current law did not contemplate the large-scale illegal market in
these drugs. As a result, there is either no penalty or insufficient
penalties for the following conduct:

o repeatedly purchasing non-controlled substance prescription
medications by someone with no medical need for the medication (the
people who are buying up medications for the black market);

o possession of large quantities of non-controlled substance
prescription medications by someone with no lawful basis for the
prescription (the people who have the stash houses for the black
market medicine);

o the writing of fraudulent prescriptions by physicians to "patients"
with no medical need for the medication; and

o the purchasing or dispensing of medications by pharmacists who have
obtained the medication through the black market,

LEGISLATIVE HISTORY:
New bill.


FISCAL IMPLICATIONS:
To be determined.

EFFECTIVE DATE:
This act shall take effect 90 days after becoming a law.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5260--C
    Cal. No. 161

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by  Sens. HANNON, GALLIVAN, SALAND -- read twice and ordered
  printed, and when printed to be committed to the Committee on Codes --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted  to  said committee -- committee discharged, bill amended,
  ordered reprinted as amended and  recommitted  to  said  committee  --
  recommitted  to  the Committee on Codes in accordance with Senate Rule
  6, sec. 8 -- reported favorably from said committee, ordered to  first
  and  second report, amended on second report, ordered to a third read-
  ing, and to be reprinted as amended, retaining its place in the  order
  of third reading

AN  ACT  to  amend  the  penal law, in relation to criminal diversion of
  prescription medications and prescriptions, establishing  the  offense
  of  fraudulent  prescription,  dispensing and procurement of non-cont-
  rolled substance prescription medications and devices, and  establish-
  ing  the  offense  of  unlawful possession of non-controlled substance
  prescription medications and devices

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.  Section 178.00 of the penal law, as added by chapter 81 of
the laws of 1995, is amended to read as follows:
S 178.00 Criminal    diversion    of    prescription   medications   and
           prescriptions; definitions.
  The following definitions are applicable to this article:
  1. "Prescription medication or device" means any article for  which  a
prescription  is  required  in  order  to be lawfully sold, delivered or
distributed by any person authorized by law to engage in the practice of
the profession of pharmacy.
  2. "Prescription" means a direction or authorization  by  means  of  a
written   prescription   form,   ELECTRONIC   PRESCRIPTION  or  an  oral
prescription which permits a person to lawfully  obtain  a  prescription

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10939-06-2

S. 5260--C                          2

medication  or  device  from  any  person  authorized  to  dispense such
prescription medication or device.
  3.  "PRESCRIPTION  FORM"  MEANS  AN  OFFICIAL  STATE PRESCRIPTION FORM
AUTHORIZED BY A STATE FOR USE  BY  HEALTH  PRACTITIONERS  AUTHORIZED  TO
WRITE PRESCRIPTIONS.
  4.  "Criminal  diversion  act"  means an act or acts in which a person
knowingly:
  (a) transfers or delivers,  in  exchange  for  anything  of  pecuniary
value,  a prescription medication or device with knowledge or reasonable
grounds to know that the recipient has no medical need for it; or
  (b)  receives,  in  exchange  for  anything  of  pecuniary  value,   a
prescription  medication  or device with knowledge or reasonable grounds
to know that the seller or transferor is not authorized by law  to  sell
or transfer such prescription medication or device; or
  (c)   RECEIVES,  IN  EXCHANGE  FOR  ANYTHING  OF  PECUNIARY  VALUE,  A
PRESCRIPTION MEDICATION OR DEVICE, PRESCRIPTION,  OR  PRESCRIPTION  FORM
FROM  A  LAW ENFORCEMENT OFFICER ACTING IN AN UNDERCOVER CAPACITY OR HIS
OR HER AGENT, BELIEVING OR HAVING REASONABLE GROUND TO BELIEVE THAT  THE
OFFICER  OR  HIS OR HER AGENT IS SOMEONE WHO IS NOT AUTHORIZED BY LAW TO
SELL OR TRANSFER SUCH PRESCRIPTION MEDICATION OR  DEVICE,  PRESCRIPTION,
OR PRESCRIPTION FORM; OR
  (D)  transfers  or  delivers  a  prescription  OR PRESCRIPTION FORM in
exchange for anything of pecuniary value; or
  [(d)] (E) receives a prescription OR PRESCRIPTION FORM in exchange for
anything of pecuniary value.
  S 2. Paragraph (c) of subdivision 1 of section  178.05  of  the  penal
law,  as added by chapter 81 of the laws of 1995, is amended and two new
paragraphs (d) and (e) are added to read as follows:
  (c) a person acting in good faith WHO  IS  seeking  [treatment  for  a
medical  condition or assisting another person to obtain treatment for a
medical condition] TO OBTAIN A PRESCRIPTION, PRESCRIPTION MEDICATION  OR
DEVICE THAT HAS BEEN LAWFULLY PRESCRIBED TO HIM OR HER, AND FOR WHICH HE
OR SHE HAS A MEDICAL NEED; OR
  (D)  A PERSON ACTING IN GOOD FAITH, WHO REASONABLY BELIEVES THAT HE OR
SHE IS ASSISTING ANOTHER PERSON TO OBTAIN A  PRESCRIPTION,  PRESCRIPTION
MEDICATION  OR  DEVICE  THAT  HAS BEEN LAWFULLY PRESCRIBED TO THAT OTHER
PERSON; OR
  (E) A DULY REGISTERED MANUFACTURER OR WHOLESALER OF DRUGS, AS  DEFINED
IN ARTICLE ONE HUNDRED THIRTY-SEVEN OF THE EDUCATION LAW, ACTING IN GOOD
FAITH IN THE LAWFUL COURSE OF HIS OR HER BUSINESS.
  S  3.  Section  178.10 of the penal law, as added by chapter 81 of the
laws of 1995, is amended to read as follows:
S 178.10 Criminal   diversion   of    prescription    medications    and
           prescriptions in the [fourth] FIFTH degree.
  A  person  is guilty of criminal diversion of prescription medications
and prescriptions in the [fourth] FIFTH degree when he or she commits  a
criminal diversion act.
  Criminal  diversion  of  prescription medications and prescriptions in
the [fourth] FIFTH degree is a class A misdemeanor.
  S 4. Section 178.15 of the penal law, as added by chapter  81  of  the
law of 1995, is amended to read as follows:
S 178.15 Criminal    diversion    of    prescription   medications   and
           prescriptions in the [third] FOURTH degree.
  A person is guilty of criminal diversion of  prescription  medications
and prescriptions in the [third] FOURTH degree when he or she:

S. 5260--C                          3

  1.  commits  a  criminal  diversion  act, and the value of the benefit
exchanged is in excess of one thousand dollars; or
  2. commits the crime of criminal diversion of prescription medications
and  prescriptions  in  the  fourth  degree,  and  has  previously  been
convicted of the crime of criminal diversion of prescription medications
and prescriptions [in the fourth degree]; OR
  3. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND PRESCRIPTIONS IN THE FIFTH DEGREE ON TWO OR MORE  OCCASIONS  OVER  A
THIRTY-FIVE DAY PERIOD.
  Criminal  diversion  of  prescription medications and prescriptions in
the [third] FOURTH degree is a class E felony.
  S 5.  Section 178.20 of the penal law, as added by chapter 81  of  the
laws of 1995, is amended to read as follows:
S 178.20 Criminal    diversion    of    prescription   medications   and
           prescriptions in the [second] THIRD degree.
  A person is guilty of criminal diversion of  prescription  medications
and prescriptions in the [second] THIRD degree when he or she:
  1.  commits  a  criminal  diversion  act, and the value of the benefit
exchanged is in excess of three thousand dollars; OR
  2. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND PRESCRIPTIONS IN THE FIFTH DEGREE ON FOUR OR MORE OCCASIONS  OVER  A
THIRTY-FIVE DAY PERIOD; OR
  3.    COMMITS  THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICA-
TIONS AND PRESCRIPTIONS IN THE FIFTH DEGREE, AND IS:
  (A) A PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION; OR
  (B) A PHARMACIST OR OTHER PERSON AUTHORIZED TO  DISPENSE  PRESCRIPTION
MEDICATIONS AND DEVICES.
  Criminal  diversion  of  prescription medications and prescriptions in
the [second] THIRD degree is a class D felony.
  S 6. Section 178.25 of the penal law, as added by chapter  81  of  the
laws of 1995, is amended to read as follows:
S 178.25 Criminal    diversion    of    prescription   medications   and
           prescriptions in the [first] SECOND degree.
  A person is guilty of criminal diversion of  prescription  medications
and prescriptions in the [first] SECOND degree when he or she:
  1.  commits  a  criminal  diversion  act, and the value of the benefit
exchanged is in excess of fifty thousand dollars; OR
  2. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND PRESCRIPTIONS IN THE FIFTH DEGREE ON SIX OR MORE  OCCASIONS  OVER  A
THIRTY-FIVE DAY PERIOD; OR
  3. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
AND  PRESCRIPTIONS  IN  THE FIFTH DEGREE ON TWO OR MORE OCCASIONS OVER A
NINETY DAY PERIOD, AND IS:
  (A) A PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION; OR
  (B) A PHARMACIST OR OTHER PERSON AUTHORIZED TO  DISPENSE  PRESCRIPTION
MEDICATIONS AND DEVICES.
  Criminal  diversion  of  prescription medications and prescriptions in
the [first] SECOND degree is a class C felony.
  S 7. The penal law is amended by adding a new section 178.30  to  read
as follows:
S 178.30 CRIMINAL    DIVERSION    OF    PRESCRIPTION   MEDICATIONS   AND
           PRESCRIPTIONS IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF CRIMINAL DIVERSION OF  PRESCRIPTION  MEDICATIONS
AND  PRESCRIPTIONS  IN THE FIRST DEGREE WHEN HE OR SHE COMMITS THE CRIME
OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS  OR  PRESCRIPTIONS  IN

S. 5260--C                          4

THE FIFTH DEGREE ON FIVE OR MORE OCCASIONS OVER A NINETY DAY PERIOD, AND
IS:
  (A) A PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION; OR
  (B)  A  PHARMACIST OR OTHER PERSON AUTHORIZED TO DISPENSE PRESCRIPTION
MEDICATIONS AND DEVICES.
  CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS  AND  PRESCRIPTIONS  IN
THE FIRST DEGREE IS A CLASS B FELONY.
  S  8.  The penal law is amended by adding a new article 179 to read as
follows:
                               ARTICLE 179
         FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF
      NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
SECTION 179.00 DEFINITIONS.
        179.05 FRAUDULENT PRESCRIPTION, DISPENSING  AND  PROCUREMENT  OF
                 NON-CONTROLLED  SUBSTANCE  PRESCRIPTION MEDICATIONS AND
                 DEVICES IN THE THIRD DEGREE.
        179.10 FRAUDULENT PRESCRIPTION, DISPENSING  AND  PROCUREMENT  OF
                 NON-CONTROLLED  SUBSTANCE  PRESCRIPTION MEDICATIONS AND
                 DEVICES IN THE SECOND DEGREE.
        179.15 FRAUDULENT PRESCRIPTION, DISPENSING  AND  PROCUREMENT  OF
                 NON-CONTROLLED  SUBSTANCE  PRESCRIPTION MEDICATIONS AND
                 DEVICES IN THE FIRST DEGREE.
S 179.00 DEFINITIONS.
  THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:
  1. "PRESCRIPTION MEDICATION OR DEVICE" MEANS ANY ARTICLE FOR  WHICH  A
PRESCRIPTION  IS  REQUIRED  IN  ORDER  TO BE LAWFULLY SOLD, DELIVERED OR
DISTRIBUTED BY ANY PERSON AUTHORIZED BY LAW TO ENGAGE IN THE PRACTICE OF
THE PROFESSION OF PHARMACY.
  2. "PRESCRIPTION" MEANS A DIRECTION OR AUTHORIZATION  BY  MEANS  OF  A
WRITTEN  PRESCRIPTION  FORM,  AN  ELECTRONIC  PRESCRIPTION  OR  AN  ORAL
PRESCRIPTION WHICH PERMITS A PERSON TO LAWFULLY  OBTAIN  A  PRESCRIPTION
MEDICATION  OR  DEVICE  FROM  ANY  PERSON  AUTHORIZED  TO  DISPENSE SUCH
PRESCRIPTION MEDICATION OR DEVICE.
  3. "CONTROLLED SUBSTANCE" MEANS ANY SUBSTANCE LISTED  IN  SCHEDULE  I,
II,  III,  IV  OR  V  OF  SECTION THIRTY-THREE HUNDRED SIX OF THE PUBLIC
HEALTH LAW OTHER THAN MARIHUANA, BUT INCLUDING CONCENTRATED CANNABIS  AS
DEFINED  IN  PARAGRAPH  (A)  OF SUBDIVISION FOUR OF SECTION THIRTY-THREE
HUNDRED TWO OF SUCH LAW.
  4.  "DISPENSING"  AND  "DISPENSES"  REFER  TO  THE  DISPENSING  OF   A
PRESCRIPTION  MEDICATION  OR DEVICE FROM OR WITHIN A PHARMACY, HOSPITAL,
PHYSICIAN'S OFFICE, CLINIC OR OTHER PHARMACEUTICAL OR MEDICAL FACILITY.
S 179.05 FRAUDULENT  PRESCRIPTION,   DISPENSING   AND   PROCUREMENT   OF
           NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
           IN THE THIRD DEGREE.
  A PERSON IS GUILTY OF FRAUDULENT PRESCRIPTION, DISPENSING AND PROCURE-
MENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN
THE THIRD DEGREE WHEN HE OR SHE:
  1.  ISSUES  A WRITTEN, ELECTRONIC OR ORAL PRESCRIPTION FOR A NON-CONT-
ROLLED SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE, AND IS  NOT  A  DULY
LICENSED   PHYSICIAN   OR   OTHER   PERSON   AUTHORIZED  TO  ISSUE  SUCH
PRESCRIPTION; OR
  2. DISPENSES A NON-CONTROLLED  SUBSTANCE  PRESCRIPTION  MEDICATION  OR
DEVICE, WITH KNOWLEDGE OR REASONABLE GROUNDS TO KNOW THAT:
  (A)  THE  PERSON FOR WHOM THE MEDICATION OR DEVICE HAS BEEN PRESCRIBED
HAS NO MEDICAL NEED FOR SUCH MEDICATION OR DEVICE; OR

S. 5260--C                          5

  (B) NO PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS ISSUED BY A DULY
LICENSED  PHYSICIAN  OR  OTHER   PERSON   AUTHORIZED   TO   ISSUE   SUCH
PRESCRIPTION; OR
  (C) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS FORGED; OR
  (D)  THE  PRESCRIPTION  FOR  SUCH MEDICATION OR DEVICE WAS ISSUED BY A
DULY LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE  SUCH
PRESCRIPTION  WHO  WAS  ACTING  OTHER  THAN  IN GOOD FAITH IN THE LAWFUL
COURSE OF HIS OR HER PROFESSIONAL PRACTICE.
  3. PRESENTS OR SUBMITS A PRESCRIPTION FOR A  NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATION  OR  DEVICE  TO,  OR  RECEIVES A NON-CONTROLLED
SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE FROM, A DULY LICENSED  PHAR-
MACIST  OR OTHER PERSON AUTHORIZED TO DISPENSE SUCH PRESCRIPTION MEDICA-
TION OR DEVICE, WITH KNOWLEDGE OR REASONABLE GROUNDS TO KNOW THAT:
  (A) THE PERSON FOR WHOM THE MEDICATION OR DEVICE HAS  BEEN  PRESCRIBED
HAS NO MEDICAL NEED FOR SUCH MEDICATION OR DEVICE; OR
  (B) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS NOT ISSUED BY A
DULY  LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE SUCH
PRESCRIPTION; OR
  (C) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS FORGED; OR
  (D) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE  WAS  ISSUED  BY  A
DULY  LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE SUCH
PRESCRIPTION WHO WAS ACTING OTHER THAN  IN  GOOD  FAITH  IN  THE  LAWFUL
COURSE OF HIS OR HER PROFESSIONAL PRACTICE.
  FRAUDULENT  PRESCRIPTION, DISPENSING AND PROCUREMENT OF NON-CONTROLLED
SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN THE THIRD DEGREE IS  A
CLASS D FELONY.
S 179.10 FRAUDULENT   PRESCRIPTION,   DISPENSING   AND   PROCUREMENT  OF
           NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
           IN THE SECOND DEGREE.
  A PERSON IS GUILTY OF FRAUDULENT PRESCRIPTION, DISPENSING AND PROCURE-
MENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN
THE SECOND DEGREE WHEN HE OR SHE:
  1. BEING A DULY LICENSED PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE
A PRESCRIPTION, ISSUES A WRITTEN, ELECTRONIC OR ORAL PRESCRIPTION FOR  A
NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE, OR DISPENSES
A NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE:
  (A)  WITH  KNOWLEDGE OR REASONABLE GROUNDS TO KNOW THAT THE PERSON FOR
WHOM THE PRESCRIPTION IS ISSUED, OR TO WHOM THE MEDICATION IS DISPENSED,
HAS NO  MEDICAL  NEED  FOR  THE  MEDICATION  OR  DEVICE  THAT  IS  BEING
PRESCRIBED; OR
  (B)  OTHER  THAN  IN  GOOD  FAITH  IN  THE LAWFUL COURSE OF HIS OR HER
PROFESSIONAL PRACTICE; OR
  2. BEING A DULY LICENSED PHARMACIST  OR  OTHER  PERSON  AUTHORIZED  TO
DISPENSE A PRESCRIPTION MEDICATION OR DEVICE, DISPENSES A NON-CONTROLLED
SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE:
  (A) WITH KNOWLEDGE OR REASONABLE GROUNDS TO KNOW THAT:
  (I)  THE  PERSON FOR WHOM THE MEDICATION OR DEVICE HAS BEEN PRESCRIBED
HAS NO MEDICAL NEED FOR SUCH MEDICATION OR DEVICE; OR
  (II) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS NOT ISSUED  BY
A  DULY  LICENSED  PHYSICIAN  OR  OTHER  PERSON AUTHORIZED TO ISSUE SUCH
PRESCRIPTION; OR
  (III) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS FORGED; OR
  (IV) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS  ISSUED  BY  A
DULY  LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE SUCH
PRESCRIPTION WHO WAS ACTING OTHER THAN  IN  GOOD  FAITH  IN  THE  LAWFUL
COURSE OF HIS OR HER PROFESSIONAL PRACTICE; OR

S. 5260--C                          6

  (B)  OTHER  THAN  IN  GOOD  FAITH,  IN THE COURSE OF HIS OR HER LAWFUL
PROFESSIONAL PRACTICE.
  FRAUDULENT  PRESCRIPTION, DISPENSING AND PROCUREMENT OF NON-CONTROLLED
SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN THE SECOND DEGREE IS A
CLASS C FELONY.
S 179.15 FRAUDULENT  PRESCRIPTION,   DISPENSING   AND   PROCUREMENT   OF
           NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
           IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF FRAUDULENT PRESCRIPTION, DISPENSING AND PROCURE-
MENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN
THE  FIRST DEGREE WHEN HE OR SHE, BEING EITHER A DULY LICENSED PHYSICIAN
OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION, OR A  DULY  LICENSED
PHARMACIST OR OTHER PERSON AUTHORIZED TO DISPENSE A PRESCRIPTION MEDICA-
TION OR DEVICE, COMMITS THE CRIME OF FRAUDULENT PRESCRIPTION, DISPENSING
AND PROCUREMENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND
DEVICES  IN  THE  SECOND DEGREE ON TWO OR MORE OCCASIONS WITHIN A NINETY
DAY PERIOD.
  FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF  NON-CONTROLLED
SUBSTANCE  PRESCRIPTION MEDICATIONS AND DEVICES IN THE FIRST DEGREE IS A
CLASS B FELONY.
  S 9. Title M of the penal law is amended by adding a new  article  219
to read as follows:
                               ARTICLE 219
      UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE PRESCRIPTION
                         MEDICATIONS AND DEVICES
SECTION 219.00 DEFINITIONS.
        219.05 LIMITATIONS ON APPLICATION OF ARTICLE.
        219.10 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  FIFTH
                 DEGREE.
        219.15 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION MEDICATIONS  AND  DEVICES  IN  THE  FOURTH
                 DEGREE.
        219.20 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  THIRD
                 DEGREE.
        219.25 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION MEDICATIONS  AND  DEVICES  IN  THE  SECOND
                 DEGREE.
        219.30 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                 PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  FIRST
                 DEGREE.
S 219.00 DEFINITIONS.
  THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:
  1.  "PRESCRIPTION  MEDICATION OR DEVICE" MEANS ANY ARTICLE FOR WHICH A
PRESCRIPTION IS REQUIRED IN ORDER TO  BE  LAWFULLY  SOLD,  DELIVERED  OR
DISTRIBUTED BY ANY PERSON AUTHORIZED BY LAW TO ENGAGE IN THE PRACTICE OF
THE PROFESSION OF PHARMACY.
  2.  "PRESCRIPTION"  MEANS  A  DIRECTION OR AUTHORIZATION BY MEANS OF A
WRITTEN  PRESCRIPTION  FORM,  AN  ELECTRONIC  PRESCRIPTION  OR  AN  ORAL
PRESCRIPTION  WHICH  PERMITS  A PERSON TO LAWFULLY OBTAIN A PRESCRIPTION
MEDICATION OR  DEVICE  FROM  ANY  PERSON  AUTHORIZED  TO  DISPENSE  SUCH
PRESCRIPTION MEDICATION OR DEVICE.
  3.  "CONTROLLED  SUBSTANCE"  MEANS ANY SUBSTANCE LISTED IN SCHEDULE I,
II, III, IV OR V OF SECTION  THIRTY-THREE  HUNDRED  SIX  OF  THE  PUBLIC
HEALTH  LAW OTHER THAN MARIHUANA, BUT INCLUDING CONCENTRATED CANNABIS AS

S. 5260--C                          7

DEFINED IN PARAGRAPH (A) OF SUBDIVISION  FOUR  OF  SECTION  THIRTY-THREE
HUNDRED TWO OF SUCH LAW.
  4.  THE  VALUE  OF A PRESCRIPTION MEDICATION OR DEVICE SHALL BE EQUIV-
ALENT TO THE FAIR MARKET VALUE OF  SUCH  MEDICATION  OR  DEVICE  ON  THE
LAWFUL  RETAIL  MARKET,  AT  ABOUT  THE TIME AND PLACE THAT THE CRIME IS
COMMITTED.
S 219.05 LIMITATIONS ON APPLICATION OF ARTICLE.
  THE PROVISIONS OF THIS ARTICLE RESTRICTING THE UNLAWFUL POSSESSION  OF
NON-CONTROLLED  SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES SHALL NOT
APPLY:
  1. TO COMMON CARRIERS OR TO WAREHOUSEMEN, WHILE  ENGAGED  IN  LAWFULLY
TRANSPORTING OR STORING SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDI-
CATIONS  AND  DEVICES,  OR TO ANY EMPLOYEE OF THE SAME ACTING WITHIN THE
SCOPE OF HIS OR HER EMPLOYMENT; OR
  2. TO PUBLIC OFFICERS OR THEIR EMPLOYEES IN THE LAWFUL PERFORMANCE  OF
THEIR  OFFICIAL  DUTIES  REQUIRING  THE  POSSESSION  OR  CONTROL OF SUCH
NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES; OR
  3. TO TEMPORARY  INCIDENTAL  POSSESSION  BY  EMPLOYEES  OR  AGENTS  OF
PERSONS  LAWFULLY  ENTITLED  TO  POSSESS  SUCH  NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES, OR BY PERSONS WHOSE POSSESSION  IS
FOR  THE  PURPOSE OF AIDING PUBLIC OFFICERS IN PERFORMING THEIR OFFICIAL
DUTIES; OR
  4. TO A DULY LICENSED PHYSICIAN, DULY  LICENSED  PHARMACIST  OR  OTHER
PERSON  AUTHORIZED  TO POSSESS OR DISPENSE SUCH NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES, ACTING IN GOOD FAITH IN THE LAWFUL
COURSE OF HIS OR HER PROFESSION; OR
  5. TO TEMPORARY INCIDENTAL POSSESSION BY A PERSON ACTING IN GOOD FAITH
WHO REASONABLY BELIEVES THAT HE OR SHE IS ASSISTING  ANOTHER  PERSON  TO
OBTAIN A NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE THAT
HAS BEEN LAWFULLY PRESCRIBED TO THAT OTHER PERSON.
S 219.10 UNLAWFUL  POSSESSION  OF  NON-CONTROLLED SUBSTANCE PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE FIFTH DEGREE.
  A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  FIFTH DEGREE WHEN SUCH
PERSON  KNOWINGLY  POSSESSES  ONE  OR  MORE   NON-CONTROLLED   SUBSTANCE
PRESCRIPTION  MEDICATIONS  OR DEVICES WHICH WERE NOT LAWFULLY PRESCRIBED
TO HIM OR HER, UNDER CIRCUMSTANCES EVINCING AN INTENT TO SELL THE  SAME;
AND
  1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS TWO HUNDRED DOLLARS; OR
  2. HE OR SHE POSSESSES TWENTY OR MORE PILLS, TABLETS  OR  CAPSULES  OF
SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL  POSSESSION  OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICA-
TIONS AND DEVICES IN THE FIFTH DEGREE IS A CLASS A MISDEMEANOR.
S 219.15 UNLAWFUL POSSESSION OF  NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE FOURTH DEGREE.
  A  PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES IN THE FOURTH DEGREE WHEN HE OR SHE
KNOWINGLY AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY PRESCRIBED
TO HIM OR HER; AND
  1. THE AGGREGATE VALUE OF SUCH NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS FIVE HUNDRED DOLLARS; OR
  2.  HE  OR  SHE  POSSESSES FIFTY OR MORE PILLS, TABLETS OR CAPSULES OF
SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES; OR

S. 5260--C                          8

  3. HE OR SHE POSSESSES A NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICA-
TION OR DEVICE WITH AN INTENT TO SELL IT; OR
  4.  HE  OR  SHE  COMMITS THE CRIME OF UNLAWFUL POSSESSION OF NON-CONT-
ROLLED PRESCRIPTION MEDICATIONS AND DEVICES IN THE FIFTH DEGREE, AND HAS
PREVIOUSLY BEEN  CONVICTED  OF  THE  CRIME  OF  UNLAWFUL  POSSESSION  OF
NON-CONTROLLED PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL  POSSESSION  OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICA-
TIONS AND DEVICES IN THE FOURTH DEGREE IS A CLASS E FELONY.
S 219.20 UNLAWFUL POSSESSION OF  NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE THIRD DEGREE.
  A  PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES IN THE THIRD DEGREE WHEN HE OR  SHE
KNOWINGLY  AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY  PRESCRIBED
TO HIM OR HER; AND
  1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS FIFTEEN HUNDRED DOLLARS; OR
  2. HE OR SHE POSSESSES ONE HUNDRED FIFTY OR  MORE  PILLS,  TABLETS  OR
CAPSULES  OF  SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND
DEVICES.
  UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
TIONS AND DEVICES IN THE THIRD DEGREE IS A CLASS D FELONY.
S 219.25 UNLAWFUL  POSSESSION  OF  NON-CONTROLLED SUBSTANCE PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE SECOND DEGREE.
  A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES IN THE SECOND DEGREE WHEN HE OR SHE
KNOWINGLY  AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED SUBSTANCE
PRESCRIPTION MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY  PRESCRIBED
TO HIM OR HER; AND
  1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS TEN THOUSAND DOLLARS; OR
  2. HE OR SHE POSSESSES ONE THOUSAND OR MORE PILLS, TABLETS OR CAPSULES
OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
TIONS AND DEVICES IN THE SECOND DEGREE IS A CLASS C FELONY.
S 219.30 UNLAWFUL  POSSESSION  OF  NON-CONTROLLED SUBSTANCE PRESCRIPTION
           MEDICATIONS AND DEVICES IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS AND DEVICES IN THE FIRST DEGREE WHEN HE OR SHE
KNOWINGLY AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED  SUBSTANCE
PRESCRIPTION  MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY PRESCRIBED
TO HIM OR HER; AND
  1. THE AGGREGATE VALUE OF SUCH NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
MEDICATIONS AND DEVICES EXCEEDS ONE HUNDRED THOUSAND DOLLARS; OR
  2. HE OR SHE POSSESSES TEN THOUSAND OR MORE PILLS, TABLETS OR CAPSULES
OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES.
  UNLAWFUL  POSSESSION  OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICA-
TIONS AND DEVICES IN THE FIRST DEGREE IS A CLASS B FELONY.
  S 10. This act shall take effect on the ninetieth day after  it  shall
have become a law.

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