Attempted Criminal Diversion of a Prescription Medication: No Need to Prove Drug is a Prescription Drug?

NY criminal defense attorney’s know that prosecutors and judges take drug crimes very seriously even if the legislature recently relaxed the Rockefeller drug laws relating to narcotics. New York Criminal defense lawyers often have a daunting task before them when battling to defend their clients. In fact, a recent judicial decision corroborates this. Published in the New York Law Journal on Friday, a judge in a Manhattan criminal court case held that “where the charge is an ‘attempt’ to divert a prescription medication, the People need not provide a lab confirming that the drug recovered was in fact a prescription medication.” In “normal” words, if you are charged with Attempted Criminal Diversion of a Prescription Medication, the “prescription medication” you are alleged to have sold could in fact be sugar tablets and the crime would still stand.

For background purposes and as outlined in People v. Christophe Polanco, 2008NY077882 (decided on March 16, 2009), a person is guilty of Criminal Diversion of Prescription Medications in the Third Degree when he “commits a criminal diversion act, and the value of the benefit exchanged is in excess of one thousand dollars.” (PL 、178.15[1]). A criminal diversion act is “an act or acts in which a person knowingly: [a] transfers or delivers, in exchange for anything of a pecuniary value, a prescription medication or device with knowledge or reasonable grounds to know that the recipient has no medical need for it” (PL 、178.00[3]). Prescription medication means any medication “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” (PL 、178.00[1]). A person is guilty of an attempt when, with intent to commit the crime, “he engages in conduct which tends to effect the commission of such crime” (PL 、110.00).

Generally, to survive a motion to dismiss for facial insufficiency, a misdemeanor complaint usually must contain a field test or lab report establishing that the particular narcotic alleged in the complaint is in fact that narcotic. However, in Polanco, the court noted:

“[T]he complaint charges an attempt to exchange two sealed 300 mg bottles of Reyataz for $2,408. The supporting deposition of the Supervising Pharmacist confirms that Reyataz is a prescription medication, and that the value of a 300 mg bottle is in excess of $1000. These allegations do provide reasonable cause to believe that the defendant attempted to commit criminal diversion of prescription medication in the third degree (compare People v. Ross, 12 Misc.3d 755 [Crim Ct, Kings County 2006] [dismissing complaint alleging criminal diversion of prescription medications in the fourth degree where the People failed to convert the complaint by either a lab report or non-hearsay allegations that the substance recovered was a prescription medication]). Whether the pills in the bottle were in fact a prescription medication is not an element of the offense charged (see People v. Sessions, 181 A.D.2d 842 [2nd Dept 1992] lv denied 80 N.Y.2d 837 [1992] [crime of attempted criminal sale of a controlled substance is committed when the defendant sells a lawful substance mistakenly believing it to be crack cocaine]). Defendant’s motion to dismiss the counts of criminal diversion of prescription medications in the third degree for facial insufficiency is denied.”

It is important to recognize that this decision, while persuasive in other courts, is not a controlling appellate decision. However, the court’s thinking was quite clear and convincing. When charged with attempting to sell a prescription drug, it does not matter if the drug was in fact a prescription drug. It would only matter if you were charged with actually selling the prescription drug. In the event you were charged with the actual and completed sale of a prescription drug, then the prosecution would be required to prove or establish the additional element.

Do not forget, however, that even if the complaint is facially sufficient as to one particular charge or even the only charge alleged, there may be other ways to successfully challenge your case. The criminal defense attorneys and former Manhattan prosecutors at Crotty Saland PC have the experience and command of the law that enables us to identify these potential issues and exploit them for your benefit.

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