Bill Text: NY S04058 | 2023-2024 | General Assembly | Introduced
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: Slight Partisan Bill (Republican 2-1)
Status: (Introduced) 2024-01-03 - REFERRED TO CODES [S04058 Detail]
Download: New_York-2023-S04058-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4058 2023-2024 Regular Sessions IN SENATE February 2, 2023 ___________ Introduced by Sens. MANNION, PALUMBO -- read twice and ordered printed, and when printed to be committed to the Committee on Codes 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; 17 (vii) criminal sale of a controlled substance to a child in the second 18 degree as defined in section 220.48 of this chapter; (viii) criminal 19 sale of a prescription for a controlled substance, a blank prescription EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07747-01-3S. 4058 2 1 form or of a controlled substance by a practitioner or pharmacist as 2 defined in section 220.65 of this chapter; or (ix) operating as a major 3 trafficker as defined in section 220.77 of this chapter; and 4 (b) The injection, inhalation, absorption, or ingestion of the 5 controlled substance sold causes, or contributes to, the death of the 6 person to whom the controlled substance was sold. 7 2. For purposes of this section, a person's act of manufacturing, 8 distributing, or dispensing a controlled substance is the cause of a 9 death when: the injection, inhalation, absorption, or ingestion of the 10 controlled substance is an antecedent but for which the death would not 11 have occurred. 12 3. It shall not be a defense to a prosecution under this section that 13 the decedent contributed to their own death by such decedent's purpose- 14 ful, knowing, reckless, or negligent injection, inhalation, absorption, 15 or ingestion of the substance or by such decedent's consenting to the 16 administration of the controlled substance by another. Nothing in this 17 section shall be construed to preclude or limit any other prosecution 18 under this article or article two hundred twenty of this chapter. 19 4. An indeterminate sentence of imprisonment is mandatory. 20 Homicide due to criminal sale of a controlled substance in the second 21 degree is a class B felony. 22 § 125.29 Homicide due to criminal sale of a controlled substance in the 23 first degree. 24 A person is guilty of homicide due to criminal sale of a controlled 25 substance in the first degree when such person: 26 1. (a) Commits the offense of: (i) criminal sale of a controlled 27 substance in the fifth degree as defined in section 220.31 of this chap- 28 ter; (ii) criminal sale of a controlled substance in the fourth degree 29 as defined in section 220.34 of this chapter; (iii) criminal sale of a 30 controlled substance in the third degree as defined in section 220.39 of 31 this chapter; (iv) criminal sale of a controlled substance in the second 32 degree as defined in section 220.41 of this chapter; (v) criminal sale 33 of a controlled substance in the first degree as defined in section 34 220.43 of this chapter; (vi) criminal sale of a controlled substance in 35 or near school grounds as defined in section 220.44 of this chapter; 36 (vii) criminal sale of a controlled substance to a child in the second 37 degree as defined in section 220.48 of this chapter; (viii) criminal 38 sale of a controlled substance to a child in the first degree as defined 39 in section 220.49 of this chapter; (ix) criminal sale of a prescription 40 for a controlled substance, a blank prescription form or of a controlled 41 substance by a practitioner or pharmacist as defined in section 220.65 42 of this chapter; or (x) operating as a major trafficker as defined in 43 section 220.77 of this chapter; 44 (b) The injection, inhalation, absorption, or ingestion of the 45 controlled substance sold causes, or contributes to, the death of the 46 person to whom the controlled substance was sold; and 47 (c)(i) The controlled substance is listed in subdivision (c) or (d) of 48 schedule II of section thirty-three hundred six of the public health 49 law, other than methadone; (ii) an additional substance was added to the 50 controlled substance sold which enhances the effects of the controlled 51 substance and/or increases the danger of ingestion; (iii) the person to 52 whom the controlled substance was sold was impaired by one or more 53 substances at the time of the sale; (iv) the person knew, or had reason 54 to know, that the person to whom the controlled substance was sold was 55 using, or intended to use, one or more other substances in conjunction 56 with the controlled substance sold; (v) the person knew, or had reasonS. 4058 3 1 to know, that the person to whom the controlled substance was sold had 2 completed a rehabilitation program, or overdosed, within thirty days of 3 the sale; or (vi) the person, being over twenty-one years old, sold a 4 controlled substance to a person less than eighteen years old. 5 2. For purposes of this section, a person's act of manufacturing, 6 distributing, or dispensing a controlled substance is the cause of a 7 death when: the injection, inhalation, absorption, or ingestion of the 8 controlled substance is an antecedent but for which the death would not 9 have occurred. 10 3. It shall not be a defense to a prosecution under this section that 11 the decedent contributed to their own death by such decedent's purpose- 12 ful, knowing, reckless, or negligent injection, inhalation, absorption, 13 or ingestion of the substance or by such decedent's consenting to the 14 administration of the substance by another. Nothing in this section 15 shall be construed to preclude or limit any other prosecution under this 16 article or article two hundred twenty of this chapter. 17 4. An indeterminate sentence of imprisonment is mandatory. 18 Homicide due to criminal sale of a controlled substance in the first 19 degree is a class A felony. 20 § 2. Subdivision 13 of section 220.16 of the penal law, as amended by 21 chapter 75 of the laws of 1995, is amended and a new subdivision 14 is 22 added to read as follows: 23 13. phencyclidine and said phencyclidine weighs one thousand two 24 hundred fifty milligrams or more[.]; or 25 14. one or more preparations, compounds, mixtures or substances 26 containing heroin and said preparations, compounds, mixtures or 27 substances are of an aggregate weight of one and one-half grams or more, 28 or such preparations, compounds, mixtures or substances are packaged in 29 fifty or more containers, packets or "decks". 30 § 3. Subdivision 7 of section 220.18 of the penal law, as amended by 31 chapter 75 of the laws of 1995, is amended and a new subdivision 8 is 32 added to read as follows: 33 7. methadone and said methadone weighs two thousand eight hundred 34 eighty milligrams or more[.]; or 35 8. one or more preparations, compounds, mixtures or substances 36 containing heroin and said preparations, compounds, mixtures or 37 substances are of an aggregate weight of twelve grams or more, or such 38 preparations, compounds, mixtures or substances are packaged in four 39 hundred or more containers, packets or "decks". 40 § 4. Subdivision 2 of section 220.21 of the penal law, as amended by 41 chapter 75 of the laws of 1995, is amended and a new subdivision 3 is 42 added to read as follows: 43 2. methadone and said methadone weighs five thousand seven hundred 44 sixty milligrams or more[.]; or 45 3. one or more preparations, compounds, mixtures or substances 46 containing heroin and said preparations, compounds, mixtures or 47 substances are of an aggregate weight of twenty-four grams or more, or 48 such preparations, compounds, mixtures or substances are packaged in 49 eight hundred or more containers, packets or "decks". 50 § 5. Subdivision 7 of section 220.41 of the penal law, as amended by 51 chapter 75 of the laws of 1995, is amended and a new subdivision 8 is 52 added to read as follows: 53 7. methadone and the methadone weighs three hundred sixty milligrams 54 or more[.]; or 55 8. one or more preparations, compounds, mixtures or substances 56 containing heroin and the preparations, compounds, mixtures orS. 4058 4 1 substances are of an aggregate weight of one and one-half grams or more, 2 or such preparations, compounds, mixtures or substances are packaged in 3 fifty or more containers, packets or "decks". 4 § 6. Subdivision 2 of section 220.43 of the penal law, as amended by 5 chapter 75 of the laws of 1995, is amended and a new subdivision 3 is 6 added to read as follows: 7 2. methadone and the methadone weighs two thousand eight hundred 8 eighty milligrams or more[.]; or 9 3. one or more preparations, compounds, mixtures or substances 10 containing heroin and the preparations, compounds, mixtures or 11 substances are of an aggregate weight of six grams or more, or such 12 preparations, compounds, mixtures or substances are packaged in two 13 hundred or more containers, packets or "decks". 14 § 7. Section 220.48 of the penal law, as added by section 28 of part 15 AAA of chapter 56 of the laws of 2009, is amended to read as follows: 16 § 220.48 Criminal sale of a controlled substance to a child in the 17 second degree. 18 A person is guilty of criminal sale of a controlled substance to a 19 child in the second degree when, being over twenty-one years old, he or 20 she knowingly and unlawfully sells without consideration or other bene- 21 fit or gain a controlled substance in violation of section 220.34 or 22 220.39 of this article to a person less than [seventeen] eighteen years 23 old. 24 Criminal sale of a controlled substance to a child in the second 25 degree is a class B felony. 26 § 8. The penal law is amended by adding a new section 220.49 to read 27 as follows: 28 § 220.49 Criminal sale of a controlled substance to a child in the first 29 degree. 30 A person is guilty of criminal sale of a controlled substance to a 31 child in the first degree when, being over twenty-one years old, he or 32 she knowingly and unlawfully sells a controlled substance for consider- 33 ation or other benefit or gain in violation of section 220.34 or 220.39 34 of this article to a person less than eighteen years old. 35 Criminal sale of a controlled substance to a child in the first degree 36 is a class A-II felony. 37 § 9. The closing paragraph of section 220.50 of the penal law, as 38 amended by chapter 627 of the laws of 1990, is amended to read as 39 follows: 40 Criminally using drug paraphernalia in the second degree is a class [A41misdemeanor] E felony. 42 § 10. Section 220.55 of the penal law, as added by chapter 970 of the 43 laws of 1971, is amended to read as follows: 44 § 220.55 Criminally using drug paraphernalia in the first degree. 45 A person is guilty of criminally using drug paraphernalia in the first 46 degree when he commits the crime of criminally using drug paraphernalia 47 in the second degree and he has previously been convicted of criminally 48 using drug paraphernalia in the second degree. 49 Criminally using drug paraphernalia in the first degree is a class [D] 50 C felony. 51 § 11. Subdivision 15 of section 220.00 of the penal law, as added by 52 chapter 118 of the laws of 1986, is amended to read as follows: 53 15. "Prescription for a controlled substance" means a direction or 54 authorization, by means of an official New York state prescription form, 55 an electronic prescription, a written prescription form or an oralS. 4058 5 1 prescription, which will permit a person to lawfully obtain a controlled 2 substance from any person authorized to dispense controlled substances. 3 § 12. Section 220.65 of the penal law, as amended by chapter 31 of the 4 laws of 2014, is amended to read as follows: 5 § 220.65 Criminal sale of a prescription for a controlled substance, a 6 blank prescription form or of a controlled substance by a 7 practitioner or pharmacist. 8 A person is guilty of criminal sale of a prescription for a controlled 9 substance, a blank prescription form or of a controlled substance by a 10 practitioner or pharmacist when: 1. being a practitioner, as that term 11 is defined in section thirty-three hundred two of the public health law, 12 he or she knowingly and unlawfully sells a prescription for a controlled 13 substance or a blank prescription form. For the purposes of this 14 section, a person sells a prescription for a controlled substance or a 15 blank prescription form unlawfully when he or she does so other than in 16 good faith in the course of his or her professional practice; or 17 2. being a practitioner or pharmacist, as those terms are defined in 18 section thirty-three hundred two of the public health law, he or she, 19 acting other than in good faith, while purporting to act within the 20 scope of the power, authority and privileges of his or her license, as 21 that term is defined in section thirty-three hundred two of the public 22 health law, knowingly and unlawfully sells a controlled substance or a 23 blank prescription form. 24 Criminal sale of a prescription for a controlled substance, a blank 25 prescription form or of a controlled substance by a practitioner or 26 pharmacist is a class [C] B felony. 27 § 13. This act shall take effect on the first of November next 28 succeeding the date upon which it shall have become a law.
