A crime that has been on the rise as of late is the offense of Criminal Diversion of Prescription Medication pursuant to Article 178 of the New York Penal Law. While street level dealers are often involved in this crime, Criminal Diversion of Prescription Medication can arguably be viewed as the “white collar” crime of the narcotics world. Recently, in a case pending in Manhattan Supreme Court, a judge addressed the issue regarding the means by which the prosecution must establish the presence of a particular prescription medication. The question raised was whether or not it is sufficient to establish that a particular substance is a prescription medication if that fact is established solely by the statements of the accused and without further corroboration. In other words, has the prosecution met its burden by using the statements of a “seller” who says the drugs are a particular prescription medication without expert testimony or a laboratory report?
According to Judge Marcy Kahn, in People v. Khan, 3299/2008:
“‘[I]n a drug-related prosecution, the People’s case is legally sufficient if the evidence provides a ‘reliable basis’ for inferring the presence’ of the drug. (People v. Swamp, 84 NY2d 725, 730 , citing People v. Kenny, 30 NY2d 154, 157 ). Expert testimony is sufficient, but not necessary, for this purpose. “More than conclusory assertions” are required, however, to meet the legal sufficiency standard. (Id., [additional citation omitted]). That said, the substance itself need not be produced at trial (People v. Czarnowski, 268 AD2d 701, 702 [3d Dept. 2000]), nor need it necessarily have been subjected to laboratory analysis, the results of which are introduced at trial. (People v. Houston, 72 AD2d 369, 379 [2d Dept. 1980]). The nature of the drug may be proved circumstantially (id.), and where the substance is not available for analysis, consumers who are familiar with the substance, from their own actual use of the drug, or from observation or study, may be competent to give testimony identifying it. (People v. Lynch, 85 AD2d 126, 128 [4th Dept. 1982]; see People v. Christopher, 161 AD2d 896 [3d Dept.], lv. denied, 76 NY2d 786 ). ‘The test…in situations where the illegal substance is not available for analysis, is the experience of the witness and the nature of [his or her] qualifications to identify the substance at issue.’ (People v. Lynch, supra, 85 AD2d at 128). Where purchasers of prescription medication merely offer conclusory statements as to the nature of the drug, the evidence is insufficient to establish its identity. (People v. O’Neill, 285 AD2d 669 [3d Dept. 2001]). While a pharmacist may offer expert testimony identifying a drug by its physical appearance, based upon his or her training and experience (People v. Czarnowski, supra), the prosecution’s reliance solely on identifying statements made by a defendant is insufficient to prove the nature of the drug, absent corroborating evidence. (People v. Ross, 12 Misc.3d 755, 760 [Crim. Ct. Kings Co. 2006] [citing CPL ､60.50]).
Judge Kahn’s assessment of the necessary requirements for corroboration are clear. A layperson alone can not establish the nature of the narcotic or prescription medication especially if belief is an unsupported conclusion. The basis of that conclusion, supporting testimony, laboratory tests, expert analysis or other elements are necessary for corroboration.