Bill Text: NY S06818 | 2019-2020 | 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 and includes electronic prescriptions and blank prescription forms in the definition of certain controlled substance offenses.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO CODES [S06818 Detail]
Download: New_York-2019-S06818-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6818 2019-2020 Regular Sessions IN SENATE October 28, 2019 ___________ Introduced by Sen. KAMINSKY -- read twice and ordered printed, and when printed to be committed to the Committee on Rules 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 three new sections 2 125.28, 125.29 and 125.30 to read as follows: 3 § 125.28 Homicide due to criminal sale of a controlled substance in the 4 third degree. 5 A person is guilty of homicide due to criminal sale of a controlled 6 substance in the third degree when he or she: 7 1. Commits the offense of: (a) (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; or (v) criminal 14 sale of a controlled substance in the first degree as defined in section 15 220.43 of this chapter; and 16 (b) the controlled substance sold causes, or contributes to, the death 17 of the person to whom the controlled substance was sold. 18 2. It shall be a rebuttable presumption that the controlled substance 19 sold pursuant to subdivision one of this section caused or contributed EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD14002-01-9S. 6818 2 1 to the death of the person where the type of controlled substance sold, 2 alone or in combination with other substances, is determined to be the 3 cause of death of the person when the death occurs within twenty-four 4 hours of the sale. 5 3. The provisions of article two hundred sixteen of the criminal 6 procedure law shall not apply to a violation of this section. Nothing 7 contained in this section shall prevent the court from sentencing a 8 person convicted under this section to any other sentence authorized by 9 law under articles sixty-five and seventy of this chapter. 10 4. Where a person (hereinafter "seller") violates the provisions of 11 paragraph (a) of subdivision one of this section but the seller, in good 12 faith, sought health care for the other person whose death resulted from 13 the ingestion of the controlled substance sold, while that other person 14 was experiencing the drug or alcohol overdose or other life threatening 15 medical emergency that led to that person's death, the seller shall not 16 be charged or prosecuted under this section or article two hundred twen- 17 ty of this chapter when the sale was not for consideration or other 18 benefit or gain. 19 5. It shall be an affirmative defense to a violation of this section 20 or a violation of article two hundred twenty of this chapter where a 21 seller violates paragraph (a) of subdivision one of this section and the 22 sale was for consideration or other benefit or gain, but the seller, in 23 good faith, sought health care for the other person whose death resulted 24 from the ingestion of the controlled substance sold, while that other 25 person was experiencing a drug or alcohol overdose or other life threat- 26 ening medical emergency that led to that person's death, and the defend- 27 ant has no prior conviction for the commission or attempted commission 28 of a class A-I, A-II or B felony under article two hundred twenty of 29 this chapter. 30 Homicide due to criminal sale of a controlled substance in the third 31 degree is a class D felony. 32 § 125.29 Homicide due to criminal sale of a controlled substance in the 33 second degree. 34 A person is guilty of homicide due to criminal sale of a controlled 35 substance in the second degree when he or she: 36 1. Commits the offense of: (a) (i) criminal sale of a controlled 37 substance in the fifth degree as defined in section 220.31 of this chap- 38 ter; (ii) criminal sale of a controlled substance in the fourth degree 39 as defined in section 220.34 of this chapter; (iii) criminal sale of a 40 controlled substance in the third degree as defined in section 220.39 of 41 this chapter; (iv) criminal sale of a controlled substance in the second 42 degree as defined in section 220.41 of this chapter; or (v) criminal 43 sale of a controlled substance in the first degree as defined in section 44 220.43 of this chapter; and 45 (b) the controlled substance sold causes, or contributes, to the death 46 of the person to whom the controlled substance was sold; and 47 (c) (i) an additional substance was added to the controlled substance 48 sold which enhances the effects of the controlled substance and/or 49 increases the danger of ingestion; or 50 (ii) the person to whom the controlled substance was sold was impaired 51 by one or more substances at the time of the sale; or 52 (iii) the person knew, or had reason to know, that the person to whom 53 the controlled substance was sold was using, or intended to use, one or 54 more other substances in conjunction with the controlled substance sold; 55 orS. 6818 3 1 (iv) the person knew, or had reason to know, that the person to whom 2 the controlled substance was sold had completed a rehabilitation 3 program, or overdosed, within thirty days of the sale. 4 2. It shall be a rebuttable presumption that the controlled substance 5 sold pursuant to subdivision one of this section caused or contributed 6 to the death of the person where the type of controlled substance sold, 7 alone or in combination with other substances, is determined to be the 8 cause of death of the person when the death occurs within twenty-four 9 hours of the sale. 10 3. The provisions of article two hundred sixteen of the criminal 11 procedure law shall not apply to a violation of this section. Nothing 12 contained in this section shall prevent the court from sentencing a 13 person convicted under this section to any other sentence authorized by 14 law under articles sixty-five and seventy of this chapter. 15 4. Where a person (hereinafter "seller") violates the provisions of 16 subdivision one of this section but the seller, in good faith, sought 17 health care for the other person whose death resulted from the ingestion 18 of the controlled substance sold, while that other person was experienc- 19 ing the drug or alcohol overdose or other life threatening medical emer- 20 gency that led to that person's death, the seller shall not be charged 21 or prosecuted under this section or article two hundred twenty of this 22 chapter when the sale was not for consideration or other benefit or 23 gain. 24 5. It shall be an affirmative defense to a violation of this section 25 or a violation of article two hundred twenty of this chapter where a 26 seller violates the provisions of subdivision one of this section and 27 the sale was for consideration or other benefit or gain, but the seller, 28 in good faith, sought health care for the other person whose death 29 resulted from the ingestion of the controlled substance sold, while that 30 other person was experiencing a drug or alcohol overdose or other life 31 threatening medical emergency that led to that person's death, and the 32 defendant has no prior conviction for the commission or attempted 33 commission of a class A-I, A-II or B felony under article two hundred 34 twenty of this chapter. 35 Homicide due to criminal sale of a controlled substance in the second 36 degree is a class C felony. 37 § 125.30 Homicide due to criminal sale of a controlled substance in the 38 first degree. 39 A person is guilty of homicide due to criminal sale of a controlled 40 substance in the first degree when he or she: 41 1. Commits the offense of criminal sale of a controlled substance to a 42 child in the first degree as defined in section 220.49 of this chapter 43 and the controlled substance sold causes, or contributes, to the death 44 of the person to whom the controlled substance was sold. 45 2. It shall be a rebuttable presumption that the controlled substance 46 sold pursuant to subdivision one of this section caused or contributed 47 to the death of the person where the type of controlled substance sold, 48 alone or in combination with other substances, is determined to be the 49 cause of death of the person when the death occurs within twenty-four 50 hours of the sale. 51 3. The provisions of article two hundred sixteen of the criminal 52 procedure law shall not apply to a violation of this section. Nothing 53 contained in this section shall prevent the court from sentencing a 54 person convicted under this section to any other sentence authorized by 55 law under articles sixty-five and seventy of this chapter.S. 6818 4 1 4. It shall be an affirmative defense to a violation of this section 2 or a violation of article two hundred twenty of this chapter where a 3 person (hereinafter "seller") violates subdivision one of this section 4 and the sale was for consideration or other benefit or gain, but the 5 seller, in good faith, sought health care for the other person whose 6 death resulted from the ingestion of the controlled substance sold, 7 while that other person was experiencing a drug or alcohol overdose or 8 other life threatening medical emergency that led to that person's 9 death, and the defendant has no prior conviction for the commission or 10 attempted commission of a class A-I, A-II or B felony under article two 11 hundred twenty of this chapter. 12 Homicide due to criminal sale of a controlled substance in the first 13 degree is a class B felony. 14 § 2. Subdivision 13 of section 220.16 of the penal law, as amended by 15 chapter 75 of the laws of 1995, is amended and a new subdivision 14 is 16 added to read as follows: 17 13. phencyclidine and said phencyclidine weighs one thousand two 18 hundred fifty milligrams or more[.]; or 19 14. one or more preparations, compounds, mixtures or substances 20 containing heroin and said preparations, compounds, mixtures or 21 substances are of an aggregate weight of 1.5 grams or more, or such 22 preparations, compounds, mixtures or substances are packaged in fifty or 23 more containers, packets or "decks". 24 § 3. Subdivision 7 of section 220.18 of the penal law, as amended by 25 chapter 75 of the laws of 1995, is amended and a new subdivision 8 is 26 added to read as follows: 27 7. methadone and said methadone weighs two thousand eight hundred 28 eighty milligrams or more[.]; or 29 8. one or more preparations, compounds, mixtures or substances 30 containing heroin and said preparations, compounds, mixtures or 31 substances are of an aggregate weight of twelve grams or more, or such 32 preparations, compounds, mixtures or substances are packaged in four 33 hundred or more containers, packets or "decks". 34 § 4. Subdivision 2 of section 220.21 of the penal law, as amended by 35 chapter 75 of the laws of 1995, is amended and a new subdivision 3 is 36 added to read as follows: 37 2. methadone and said methadone weighs five thousand seven hundred 38 sixty milligrams or more[.]; or 39 3. one or more preparations, compounds, mixtures or substances 40 containing heroin and said preparations, compounds, mixtures or 41 substances are of an aggregate weight of twenty-four grams or more, or 42 such preparations, compounds, mixtures or substances are packaged in 43 eight hundred or more containers, packets or "decks". 44 § 5. Subdivision 7 of section 220.41 of the penal law, as amended by 45 chapter 75 of the laws of 1995, is amended and a new subdivision 8 is 46 added to read as follows: 47 7. methadone and the methadone weighs three hundred sixty milligrams 48 or more[.]; or 49 8. one or more preparations, compounds, mixtures or substances 50 containing heroin and the preparations, compounds, mixtures or 51 substances are of an aggregate weight of 1.5 grams or more, or such 52 preparations, compounds, mixtures or substances are packaged in fifty or 53 more containers, packets or "decks". 54 § 6. Subdivision 2 of section 220.43 of the penal law, as amended by 55 chapter 75 of the laws of 1995, is amended and a new subdivision 3 is 56 added to read as follows:S. 6818 5 1 2. methadone and the methadone weighs two thousand eight hundred 2 eighty milligrams or more[.]; or 3 3. 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 six grams or more, or such 6 preparations, mixtures or substances are packaged in two hundred or more 7 containers, packets or "decks". 8 § 7. Section 220.48 of the penal law, as added by section 28 of part 9 AAA of chapter 56 of the laws of 2009, is amended to read as follows: 10 § 220.48 Criminal sale of a controlled substance to a child in the 11 second degree. 12 A person is guilty of criminal sale of a controlled substance to a 13 child in the second degree when, being over twenty-one years old, he or 14 she knowingly and unlawfully sells without consideration or other bene- 15 fit or gain a controlled substance in violation of section 220.34 or 16 220.39 of this article to a person less than seventeen years old. 17 Criminal sale of a controlled substance to a child in the second 18 degree is a class B felony. 19 § 8. The penal law is amended by adding a new section 220.49 to read 20 as follows: 21 § 220.49 Criminal sale of a controlled substance to a child in the first 22 degree. 23 A person is guilty of criminal sale of a controlled substance to a 24 child in the first degree when, being over twenty-one years old, he or 25 she knowingly and unlawfully sells a controlled substance for consider- 26 ation or other benefit or gain in violation of section 220.34 or 220.39 27 of this article to a person less than seventeen years old. 28 Criminal sale of a controlled substance to a child in the first degree 29 is a class A-II felony. 30 § 9. The closing paragraph of section 220.50 of the penal law, as 31 amended by chapter 627 of the laws of 1990, is amended to read as 32 follows: 33 Criminally using drug paraphernalia in the second degree is a class [A34misdemeanor] E felony. 35 § 10. Section 220.55 of the penal law, as added by chapter 970 of the 36 laws of 1971, is amended to read as follows: 37 § 220.55 Criminally using drug paraphernalia in the first degree. 38 A person is guilty of criminally using drug paraphernalia in the first 39 degree when he commits the crime of criminally using drug paraphernalia 40 in the second degree and he has previously been convicted of criminally 41 using drug paraphernalia in the second degree. 42 Criminally using drug paraphernalia in the first degree is a class [D] 43 C felony. 44 § 11. Subdivision 15 of section 220.00 of the penal law, as added by 45 chapter 118 of the laws of 1986, is amended to read as follows: 46 15. "Prescription for a controlled substance" means a direction or 47 authorization, by means of an official New York state prescription form, 48 an electronic prescription, a written prescription form or an oral 49 prescription, which will permit a person to lawfully obtain a controlled 50 substance from any person authorized to dispense controlled substances. 51 § 12. Section 220.65 of the penal law, as amended by chapter 31 of the 52 laws of 2014, is amended to read as follows: 53 § 220.65 Criminal sale of a prescription for a controlled substance, a 54 blank prescription form or of a controlled substance by a 55 practitioner or pharmacist.S. 6818 6 1 A person is guilty of criminal sale of a prescription for a controlled 2 substance, a blank prescription form or of a controlled substance by a 3 practitioner or pharmacist when: 1. being a practitioner, as that term 4 is defined in section thirty-three hundred two of the public health law, 5 he or she knowingly and unlawfully sells a prescription for a controlled 6 substance or a blank prescription form. For the purposes of this 7 section, a person sells a prescription for a controlled substance or a 8 blank prescription form unlawfully when he or she does so other than in 9 good faith in the course of his or her professional practice; or 10 2. being a practitioner or pharmacist, as those terms are defined in 11 section thirty-three hundred two of the public health law, he or she, 12 acting other than in good faith, while purporting to act within the 13 scope of the power, authority and privileges of his or her license, as 14 that term is defined in section thirty-three hundred two of the public 15 health law, knowingly and unlawfully sells a controlled substance or a 16 blank prescription form. 17 Criminal sale of a prescription for a controlled substance, a blank 18 prescription form or of a controlled substance by a practitioner or 19 pharmacist is a class [C] B felony. 20 § 13. This act shall take effect on the first of November next 21 succeeding the date upon which it shall have become a law.
