The Differing Degrees of Criminal Diversion of Prescription Medication and Prescriptions: NY Penal Law Article 178

The prescription drug epidemic may not be as rampant as the crack and cocaine abuse in the 80s and 90s, but it is no less harmful and frightening. Whether a drug is Oxycodone, Xanax, Hydrocodone, Adderall or some other prescribed controlled substance or narcotic, the potential harm to the abuser, his or her family and the community-at-large is great. Because of this, law enforcement from the NYPD in New York City to smaller police departments, as well as the District Attorneys prosecuting crime in the associated jurisdiction, have sought to disrupt the illegal trade and sale of these drugs. That is where the crime of Criminal Diversion of Prescription Medication and Prescriptions, New York Penal Law Article 178, becomes part of law enforcement’s arsenal to combat the illegal sale, possession and trade of prescription drugs.

This blog entry will identify and address the differences between the varying degrees of Criminal Diversion of Prescription Medication – NY PL 178.10, NY PL 178.15, NY PL 178.20, NY PL 178.25 – and potential punishment associated with each crime.

The lease serious offense, Fourth Degree Criminal Diversion of Prescription Medication, is a class “A” misdemeanor. This means that a conviction for New York Penal Law 178.10 will land a defendant in an orange jumpsuit for up to one year. If you commit a “criminal diversion act,” regardless of how much or what you receive in exchange, you have committed this crime. A act that qualifies as “criminal diversion” would include the sale of a prescription to someone who the seller knows is not in need of the medication or has reasonable grounds to believe the recipient is not in need of the particular drug. Nothing prevents the unlawful possessor of the illegal drug to also be charged with Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03.

The other degrees of Criminal Diversion of Prescription Medication range from class “E” to “C” felonies. These crimes are elevated based on the value of the exchanged benefit. If the benefit is in excess of $1,000.00, then the crime is Third Degree Criminal Diversion of Prescription Medication and Prescriptions, New York Penal Law 178.15. If the value is more than $3,000.00, then the offense is Second Degree Criminal Diversion of Prescription Medication and Prescriptions, New York Penal Law 178.20. This crime is a class “D” felony. The most serious of these prescription drug offenses is First Degree Criminal Diversion of Prescription Medication and Prescriptions, New York Penal Law 178.25. This last offense is a class “C” felony and involves the benefit exceeding $50,000.00. Class “E,” “C,” and “D” felonies are punishable by as much as four, seven and fifteen years respectively.

Remember, nothing in the law prevents the provider of illegal prescriptions or the receiver of the same from being charged with far more serious New York drug crimes or, where there is more nefarious organized illegality, Money Laundering and Enterprise Corruption.

Regardless of the crime or crimes you may face that involve controlled substances and prescription medications, know that education about the law is fundamental. Certainly, having a full grasp of New York crimes can help you avoid prosecution and running afoul of the law, but it can also help you and your criminal defense attorney to identify and implement the best defense to a Criminal Diversion of Prescription Medication arrest, indictment or trial.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The two founding criminal defense lawyers at Crotty Saland PC represent clients in drug related crimes – both street and prescription – throughout the New York City and Hudson Valley region.

Updated: