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.
LBD14002-01-9
S. 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 or
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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.
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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:
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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 [A
34 misdemeanor] 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.
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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.