Bill Text: NY S01017 | 2021-2022 | General Assembly | Amended
Bill Title: Establishes certain offenses based on homicide due to criminal sale of a controlled substance; establishes the offense of criminal sale of a controlled substance to a child in the first degree; expands the definition of controlled substances with respect to certain offenses; increases the felony classification of certain controlled substance offenses; includes electronic prescriptions and blank prescription forms in the definition of certain controlled substance offenses.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2022-01-05 - REFERRED TO CODES [S01017 Detail]
Download: New_York-2021-S01017-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 1017--A 2021-2022 Regular Sessions IN SENATE (Prefiled) January 6, 2021 ___________ Introduced by Sen. KAMINSKY -- 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 establishing certain offenses based on homicide due to criminal sale of a controlled substance, establishing the offense of criminal sale of a controlled substance to a child in the first degree, expanding the definition of controlled substances with respect to certain offenses, increasing the felony classification of certain controlled substance offenses and including electronic prescriptions and blank prescription forms in the definition of certain controlled substance offenses The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The penal law is amended by adding two new sections 125.28 2 and 125.29 to read as follows: 3 § 125.28 Homicide due to criminal sale of a controlled substance in the 4 second degree. 5 A person is guilty of homicide due to criminal sale of a controlled 6 substance in the second degree when such person: 7 1. (a) Commits the offense of: (i) criminal sale of a controlled 8 substance in the fifth degree as defined in section 220.31 of this chap- 9 ter; (ii) criminal sale of a controlled substance in the fourth degree 10 as defined in section 220.34 of this chapter; (iii) criminal sale of a 11 controlled substance in the third degree as defined in section 220.39 of 12 this chapter; (iv) criminal sale of a controlled substance in the second 13 degree as defined in section 220.41 of this chapter; (v) criminal sale 14 of a controlled substance in the first degree as defined in section 15 220.43 of this chapter; (vi) criminal sale of a controlled substance in 16 or near school grounds as defined in section 220.44 of this chapter; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01163-03-1S. 1017--A 2 1 (vii) criminal sale of a controlled substance to a child in the second 2 degree as defined in section 220.48 of this chapter; (viii) criminal 3 sale of a prescription for a controlled substance, a blank prescription 4 form or of a controlled substance by a practitioner or pharmacist as 5 defined in section 220.65 of this chapter; or (ix) operating as a major 6 trafficker as defined in section 220.77 of this chapter; and 7 (b) The injection, inhalation, absorption, or ingestion of the 8 controlled substance sold causes, or contributes to, the death of the 9 person to whom the controlled substance was sold. 10 2. For purposes of this section, a person's act of manufacturing, 11 distributing, or dispensing a controlled substance is the cause of a 12 death when: the injection, inhalation, absorption, or ingestion of the 13 controlled substance is an antecedent but for which the death would not 14 have occurred. 15 3. It shall not be a defense to a prosecution under this section that 16 the decedent contributed to their own death by such decedent's purpose- 17 ful, knowing, reckless, or negligent injection, inhalation, absorption, 18 or ingestion of the substance or by such decedent's consenting to the 19 administration of the controlled substance by another. Nothing in this 20 section shall be construed to preclude or limit any other prosecution 21 under this article or article two hundred twenty of this chapter. 22 4. An indeterminate sentence of imprisonment is mandatory. 23 Homicide due to criminal sale of a controlled substance in the second 24 degree is a class B felony. 25 § 125.29 Homicide due to criminal sale of a controlled substance in the 26 first degree. 27 A person is guilty of homicide due to criminal sale of a controlled 28 substance in the first degree when such person: 29 1. (a) Commits the offense of: (i) criminal sale of a controlled 30 substance in the fifth degree as defined in section 220.31 of this chap- 31 ter; (ii) criminal sale of a controlled substance in the fourth degree 32 as defined in section 220.34 of this chapter; (iii) criminal sale of a 33 controlled substance in the third degree as defined in section 220.39 of 34 this chapter; (iv) criminal sale of a controlled substance in the second 35 degree as defined in section 220.41 of this chapter; (v) criminal sale 36 of a controlled substance in the first degree as defined in section 37 220.43 of this chapter; (vi) criminal sale of a controlled substance in 38 or near school grounds as defined in section 220.44 of this chapter; 39 (vii) criminal sale of a controlled substance to a child in the second 40 degree as defined in section 220.48 of this chapter; (viii) criminal 41 sale of a controlled substance to a child in the first degree as defined 42 in section 220.49 of this chapter; (ix) criminal sale of a prescription 43 for a controlled substance, a blank prescription form or of a controlled 44 substance by a practitioner or pharmacist as defined in section 220.65 45 of this chapter; or (x) operating as a major trafficker as defined in 46 section 220.77 of this chapter; 47 (b) The injection, inhalation, absorption, or ingestion of the 48 controlled substance sold causes, or contributes to, the death of the 49 person to whom the controlled substance was sold; and 50 (c)(i) The controlled substance is listed in subdivision (c) or (d) of 51 schedule II of section thirty-three hundred six of the public health 52 law, other than methadone; (ii) an additional substance was added to the 53 controlled substance sold which enhances the effects of the controlled 54 substance and/or increases the danger of ingestion; (iii) the person to 55 whom the controlled substance was sold was impaired by one or more 56 substances at the time of the sale; (iv) the person knew, or had reasonS. 1017--A 3 1 to know, that the person to whom the controlled substance was sold was 2 using, or intended to use, one or more other substances in conjunction 3 with the controlled substance sold; (v) the person knew, or had reason 4 to know, that the person to whom the controlled substance was sold had 5 completed a rehabilitation program, or overdosed, within thirty days of 6 the sale; or (vi) the person, being over twenty-one years old, sold a 7 controlled substance to a person less than eighteen years old. 8 2. For purposes of this section, a person's act of manufacturing, 9 distributing, or dispensing a controlled substance is the cause of a 10 death when: the injection, inhalation, absorption, or ingestion of the 11 controlled substance is an antecedent but for which the death would not 12 have occurred. 13 3. It shall not be a defense to a prosecution under this section that 14 the decedent contributed to their own death by such decedent's purpose- 15 ful, knowing, reckless, or negligent injection, inhalation, absorption, 16 or ingestion of the substance or by such decedent's consenting to the 17 administration of the substance by another. Nothing in this section 18 shall be construed to preclude or limit any other prosecution under this 19 article or article two hundred twenty of this chapter. 20 4. An indeterminate sentence of imprisonment is mandatory. 21 Homicide due to criminal sale of a controlled substance in the first 22 degree is a class A felony. 23 § 2. Subdivision 13 of section 220.16 of the penal law, as amended by 24 chapter 75 of the laws of 1995, is amended and a new subdivision 14 is 25 added to read as follows: 26 13. phencyclidine and said phencyclidine weighs one thousand two 27 hundred fifty milligrams or more[.]; or 28 14. one or more preparations, compounds, mixtures or substances 29 containing heroin and said preparations, compounds, mixtures or 30 substances are of an aggregate weight of one and one-half grams or more, 31 or such preparations, compounds, mixtures or substances are packaged in 32 fifty or more containers, packets or "decks". 33 § 3. Subdivision 7 of section 220.18 of the penal law, as amended by 34 chapter 75 of the laws of 1995, is amended and a new subdivision 8 is 35 added to read as follows: 36 7. methadone and said methadone weighs two thousand eight hundred 37 eighty milligrams or more[.]; or 38 8. one or more preparations, compounds, mixtures or substances 39 containing heroin and said preparations, compounds, mixtures or 40 substances are of an aggregate weight of twelve grams or more, or such 41 preparations, compounds, mixtures or substances are packaged in four 42 hundred or more containers, packets or "decks". 43 § 4. Subdivision 2 of section 220.21 of the penal law, as amended by 44 chapter 75 of the laws of 1995, is amended and a new subdivision 3 is 45 added to read as follows: 46 2. methadone and said methadone weighs five thousand seven hundred 47 sixty milligrams or more[.]; or 48 3. one or more preparations, compounds, mixtures or substances 49 containing heroin and said preparations, compounds, mixtures or 50 substances are of an aggregate weight of twenty-four grams or more, or 51 such preparations, compounds, mixtures or substances are packaged in 52 eight hundred or more containers, packets or "decks". 53 § 5. Subdivision 7 of section 220.41 of the penal law, as amended by 54 chapter 75 of the laws of 1995, is amended and a new subdivision 8 is 55 added to read as follows:S. 1017--A 4 1 7. methadone and the methadone weighs three hundred sixty milligrams 2 or more[.]; or 3 8. one or more preparations, compounds, mixtures or substances 4 containing heroin and the preparations, compounds, mixtures or 5 substances are of an aggregate weight of one and one-half grams or more, 6 or such preparations, compounds, mixtures or substances are packaged in 7 fifty or more containers, packets or "decks". 8 § 6. Subdivision 2 of section 220.43 of the penal law, as amended by 9 chapter 75 of the laws of 1995, is amended and a new subdivision 3 is 10 added to read as follows: 11 2. methadone and the methadone weighs two thousand eight hundred 12 eighty milligrams or more[.]; or 13 3. one or more preparations, compounds, mixtures or substances 14 containing heroin and the preparations, compounds, mixtures or 15 substances are of an aggregate weight of six grams or more, or such 16 preparations, compounds, mixtures or substances are packaged in two 17 hundred or more containers, packets or "decks". 18 § 7. Section 220.48 of the penal law, as added by section 28 of part 19 AAA of chapter 56 of the laws of 2009, is amended to read as follows: 20 § 220.48 Criminal sale of a controlled substance to a child in the 21 second degree. 22 A person is guilty of criminal sale of a controlled substance to a 23 child in the second degree when, being over twenty-one years old, he or 24 she knowingly and unlawfully sells without consideration or other bene- 25 fit or gain a controlled substance in violation of section 220.34 or 26 220.39 of this article to a person less than [seventeen] eighteen years 27 old. 28 Criminal sale of a controlled substance to a child in the second 29 degree is a class B felony. 30 § 8. The penal law is amended by adding a new section 220.49 to read 31 as follows: 32 § 220.49 Criminal sale of a controlled substance to a child in the first 33 degree. 34 A person is guilty of criminal sale of a controlled substance to a 35 child in the first degree when, being over twenty-one years old, he or 36 she knowingly and unlawfully sells a controlled substance for consider- 37 ation or other benefit or gain in violation of section 220.34 or 220.39 38 of this article to a person less than eighteen years old. 39 Criminal sale of a controlled substance to a child in the first degree 40 is a class A-II felony. 41 § 9. The closing paragraph of section 220.50 of the penal law, as 42 amended by chapter 627 of the laws of 1990, is amended to read as 43 follows: 44 Criminally using drug paraphernalia in the second degree is a class [A45misdemeanor] E felony. 46 § 10. Section 220.55 of the penal law, as added by chapter 970 of the 47 laws of 1971, is amended to read as follows: 48 § 220.55 Criminally using drug paraphernalia in the first degree. 49 A person is guilty of criminally using drug paraphernalia in the first 50 degree when he commits the crime of criminally using drug paraphernalia 51 in the second degree and he has previously been convicted of criminally 52 using drug paraphernalia in the second degree. 53 Criminally using drug paraphernalia in the first degree is a class [D] 54 C felony. 55 § 11. Subdivision 15 of section 220.00 of the penal law, as added by 56 chapter 118 of the laws of 1986, is amended to read as follows:S. 1017--A 5 1 15. "Prescription for a controlled substance" means a direction or 2 authorization, by means of an official New York state prescription form, 3 an electronic prescription, a written prescription form or an oral 4 prescription, which will permit a person to lawfully obtain a controlled 5 substance from any person authorized to dispense controlled substances. 6 § 12. Section 220.65 of the penal law, as amended by chapter 31 of the 7 laws of 2014, is amended to read as follows: 8 § 220.65 Criminal sale of a prescription for a controlled substance, a 9 blank prescription form or of a controlled substance by a 10 practitioner or pharmacist. 11 A person is guilty of criminal sale of a prescription for a controlled 12 substance, a blank prescription form or of a controlled substance by a 13 practitioner or pharmacist when: 1. being a practitioner, as that term 14 is defined in section thirty-three hundred two of the public health law, 15 he or she knowingly and unlawfully sells a prescription for a controlled 16 substance or a blank prescription form. For the purposes of this 17 section, a person sells a prescription for a controlled substance or a 18 blank prescription form unlawfully when he or she does so other than in 19 good faith in the course of his or her professional practice; or 20 2. being a practitioner or pharmacist, as those terms are defined in 21 section thirty-three hundred two of the public health law, he or she, 22 acting other than in good faith, while purporting to act within the 23 scope of the power, authority and privileges of his or her license, as 24 that term is defined in section thirty-three hundred two of the public 25 health law, knowingly and unlawfully sells a controlled substance or a 26 blank prescription form. 27 Criminal sale of a prescription for a controlled substance, a blank 28 prescription form or of a controlled substance by a practitioner or 29 pharmacist is a class [C] B felony. 30 § 13. This act shall take effect on the first of November next 31 succeeding the date upon which it shall have become a law.
