Criminal Diversion of Prescription Medication: Dismissing NY PL 178.10 for Failure to Establish Reasonable Cause

In substance, New York Penal Law 178.10, Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree, prohibits one from knowingly transferring a prescription medication in exchange for anything of value if the individual should have reasonably known that the recipient had no medical need for the medication. This Fourth Degree Criminal Diversion is an “A” misdemeanor and is punishable by a year in jail. For many individuals arrested for NY PL 178.10, whether or not a jail sentence is served is secondary to the potential of being forever saddled with a criminal record even if he or she never steps foot inside a jail cell. Whether a misdemeanor criminal conviction will lead to a termination of employment, a loss of a professional license or certification or cause a myriad of long term collateral issues, properly handing a New York Criminal Diversion of Prescription Medications arrest or charge is critical. While no Criminal Diversion attorney or New York drug lawyer can guarantee a particular defense will ever work, covering each and every base will certainly increase your likelihood of success when challenging the charge against. The following case is an example of this approach where the charge of New York Penal Law 178.10 was ultimately dismissed due to a failure of the prosecution to establish reasonable cause that prescription medication was actually transferred.

In People v. Tracey Dubois, 2012NY020323, NYLJ 1202558131222, at *1 (Crim., NY, Decided May 25, 2012), the police arrested and charged Dubois with violating New York Penal Law 178.10 after he allegedly sold the prescription medication Vistaril (hydrazine hydrochloried) to another individual. In support of the arrest and charge, the New York City police officer claimed that he observed Dubois transfer a small object to another individual in exchange for money. Additionally, the police officer further asserted in the complaint that after a pat-down, his sergeant found a bottle containing nineteen (19) pills of Vistaril in Dubois’ front right pants pocket. Furthermore, the officer contended that Dubois told him in substance the pills were prescription sleeping pills and that he saw an opportunity to sell them. Dubois moved to dismiss the charges against him on the grounds that the facts failed to provide enough evidence to support he had committed the crime of Criminal Diversion of Prescription Medication in the Fourth Degree.

In general terms, for a complaint (also called an information) to be evidentiary sufficient, the information must contain non-hearsay factual allegations (first-hand eye-witness information or corroborated by those who observed first hand) that show reasonable cause to believe that the defendant committed the crime (here, New York Penal Law 178.10). This reasonable cause standard, which requires that the evidence be persuasive enough to convince a person of ordinary intelligence that it is reasonably likely that the defendant committed the offense charged, is lower than the burden of proof beyond all reasonable doubt standard required at trial.

In the present case, the court held that the facts alleged failed to establish reasonable cause that Dubois committed the crime charged because no Vistaril pills were found in the possession of the buyer, and, thus, the People (prosecution) could not show that the small object Dubois transferred to the buyer was in fact Vistaril. Additionally, the court did not hold that Mr. Dubois’s statement to the arresting police officer — that he had prescription sleeping pills and saw an opportunity to sell them — established reasonable cause that Dubois committed the crime charged because the statement made no reference to an actual transfer or delivery of the prescription medication to the buyer.

New York courts have held reasonable cause to exist where an unidentified object has been exchanged for money; however, such cases generally allege corroborative facts in addition to the single transaction. For instance, factors which may help corroborate and establish reasonable cause that a narcotics transaction or drug sale has occurred include, but are not limited to: (1) the exchange of money; (2) whether the location where the exchange occurred is a high-crime and/or drug prone location; (3) the police officer’s experience and training in drug investigations; and (4) any evidence of evasive behavior on the part of the participants.

Whether this decision is applicable to assist in the dismissal of your New York drug arrest or prescription medication arrest is something that should ultimately be addressed you’re your own New York criminal lawyer.

To find out more about the crimes of New York Criminal Diversion of Prescription Medication and other New York Drug Possession laws or Drug Sale crimes, review the associated links above. Further materials ranging from legal definitions to analysis of other case decisions is located on the NewYorkCriminalLawyerBlog.Com which is also hyperlinked below.

A New York criminal defense firm founded by two former Manhattan Assistant District Attorneys, Crotty Saland PC represents clients in investigations, arrests and trials for allegations of drug possession as well as Criminal Diversion of Prescription Medication.

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