Criminal diversion primarily refers to a broad category of crimes that, in simple terms, involve the unauthorized transfer, sale, exchange, or receipt of prescriptions, prescription medication and medical devices, controlled substances, and medical marijuana.

Depending on the circumstances of the crime, you may be criminally liable for up to a class C felony and face up to fifteen years in prison.

Examples

The following are examples of situations where charges of criminal diversion may be filed.

•  Kate buys prescription medication from Scott, who she knows is neither a pharmacist or a doctor.
• Kate, who is not a doctor or pharmacist, sells her prescription medication to Scott.  She doesn’t know why he wants the medication, but Scott does not appear ill.
• Scott, a doctor, issues a prescription for Kate in exchange for money.
• Scott, a doctor, issues a prescription for Kate even though she is not suffering from any illnesses or conditions requiring the prescribed medication.
• Scott, a doctor, issues certification for the use of medical marijuana to Kate, even though he knows that Kate will not use marijuana for a medical purpose.

If you believe you may have committed criminal diversion, this article provides valuable information regarding the types of criminal diversion, the elements of the crime, the numerous statutory and legal defenses available, as well as how to minimize your criminal liability best.

Statutes Defining Criminal Diversion in New York

There are two main types of criminal diversion: (1) criminal diversion of prescription medications and prescriptions (defined in NY Penal Law §§ 178.00 et seq.), and (2) criminal diversion of medical marijuana (defined in NY Penal Law §§ 179.00 et seq.).

Criminal Diversion of Prescription Medications and Prescriptions 

•     NY Penal Law § 178.10 – Criminal diversion of prescription medications and prescriptions in the fourth degree:  This occurs when a person, knowingly and in exchange for anything of monetary value and:

1. transfers prescription medication or medical device knowing that the recipient has no medical need for it, or
2. receives prescription medication or medical device knowing that the transferor has no legal authority to transfer it, or
3. transfers or receives a prescription in exchange for money.

This is a class A misdemeanor.

•   NY Penal Law § 178.15 – Criminal diversion of prescription medications and prescriptions in the third degree:  This occurs when a person commits fourth-degree criminal diversion of prescription medications and prescriptions wherein:

1. the benefit exchanged is $1,000 or more, or
2. the person has a previous conviction for fourth-degree criminal diversion of prescription medications and prescriptions.

This is a class E felony.

•     NY Penal Law § 178.20 – Criminal diversion of prescription medications and prescriptions in the second degree:  This occurs when a person commits fourth-degree criminal diversion of prescription medications, and prescriptions where the benefit exchanged, is $3,000 or more.  This is a class D felony.
•     NY Penal Law § 178.25 – Criminal diversion of prescription medications, and prescriptions in the first degree:  This occurs when a person commits fourth-degree criminal diversion of prescription medications and prescriptions, where the benefit exchanged, is $50,000 or more.  This is a class C felony.

Criminal Diversion of Medical Marihuana 

•     NY Penal Law § 179.10 – Criminal diversion of medical marihuana in the first degree:  This occurs when a medical practitioner authorized to issue certifications for medical marijuana knowingly issues such a certification

1. to a person who does not have any medical need for marijuana or;
2. for a purpose other than to treat a serious medical condition.

This is a class E felony.

•     NY Penal Law § 179.11 – Criminal diversion of medical marihuana in the second degree:  This occurs when someone knowingly provides medical marijuana to someone who is not lawfully registered for medical marijuana use.  This is a class B misdemeanor.

The Elements of Criminal Diversion of Prescription Medications and Prescriptions

The “elements” of an offense are the things that the prosecutor must prove in order for you to be found guilty of the offense.  Normally, a statute defines one set of elements that must be proven at trial.  However, for criminal diversion of prescription medications and prescriptions, there are four different offense conducts that satisfy the elements of the crime.

Offense Conduct A

1. You must knowingly transfer prescription medication or device to another; AND
2. You must know, or have reason to know, that the recipient does not need the medication or device; AND
3. You must receive something of monetary value for the prescription medication or device.

Offense Conduct B

1. You must knowingly receive prescription medication or device from another; AND
2. You must know, or have reason to know, that the transferor is not legally authorized to transfer the medication or device; AND
3. You must give something of monetary value for the prescription medication or device.

 Offense Conduct C

1.  You must knowingly transfer a prescription to another; AND
2. You must knowingly receive something of monetary value for the prescription.

 Offense Conduct D

1.  You must knowingly receive a prescription from another; AND
2. You must knowingly give something of monetary value for the prescription.

Please see the chart below to see what must be proven at trial to be convicted of criminal diversion of prescription medications and prescriptions in the fourth degree:

Elements of Conduct A 

Element #1: Transfer of prescription medication or device to another

This element is satisfied if you physically transfer any prescription medication or medical device to another person.  This would include in-person transfers or delivery through mail or through an intermediary.

However, you must know that you are transferring the medication or device.  In other words, if you inadvertently give the medication to another but do not realize that you are doing so, your conduct will not satisfy this element.

• Kate mails some prescription drugs to Scott’s address.
• Kate hides some prescription drugs in her backyard and tells Scott to pick it up there.
• Kate tells Scott to carry a box containing prescription drugs to John.

Element #2: Knowledge that the recipient does not medically need the medication or device

This element is tricky because it does not require that you have affirmative knowledge that the recipient does not need the medication or device for a medical purpose. As long as you have reasonable grounds such that you should have known that the recipient did not medically need the medication or device, you satisfy this element.

• Kate gives Scott some fentanyl (a prescription pain killer).  However, Scott does not appear to be in any pain.
• Kate gives Scott fentanyl.  Scott does not explain why he needs the medication and has told her in the past that he can sell drugs on the black market for a lot of money.
• Kate gives Scott some fentanyl.  Kate knows that Scott is addicted to fentanyl.

Element #3: Receipt of something of monetary value

This element is satisfied if you receive something in exchange for the prescription medication or device, and that thing has a monetary value.  Of course, receiving money will satisfy this element.  However, receiving a sign of appreciation with no monetary value, such as a thank you letter, will not satisfy this element.

• Kate receives a $500 check from Scott.
• Kate receives a $500 gift card to her favorite store from Scott.

Elements of Conduct B

Element #1: Receipt of prescription medication or device from another 

Similar to Element #1 under conduct A, this element is satisfied if you knowingly and physically receive any prescription medication or device.  Thus, if you receive what you believe is non-prescription medication but is, in fact, prescription medication, you will not satisfy this element.

Conversely, if you receive a package which you reasonably should know contains prescription medication (but you simply refuse to check what’s inside), you may be found to have satisfied this element.

• Kate receives prescription medication from Scott.
• Kate receives prescription medication in the mail, which was sent by Scott.

Element #2: Knowledge that the transferor is not legally authorized to transfer the medication or device 

If you are receiving your prescription medication from someone who is not a doctor or a pharmacist, you likely know that the person is not legally authorized to provide prescription medication.

Additionally, if your source is a shady individual and you have strong reasons to suspect that he is not legally authorized to transfer the prescription medication, you may satisfy this element even though you lacked affirmative knowledge that the person did not have legal authorization.

• Kate receives prescription medication from Scott.  Kate knows that Scott is neither a doctor nor a pharmacist.
• Kate buys fentanyl from Scott, who tells her that fentanyl can be purchased over-the-counter.  Kate strongly suspects that Scott is not telling the truth because she knows that fentanyl is a prescription drug.

Element #3: Transfer of something of monetary value

This element is satisfied if you give something in exchange for the prescription medication or device, and that thing has a monetary value.

• Kate sends a $500 check to Scott.
• Kate gives Scott a $500 gift card to his favorite restaurant.

Elements of Conduct C

Element #1: Knowing the transfer of a prescription

This element is satisfied by the physical transfer of a filled-out prescription form to another person.  Like above, you need to know that you are transferring the prescription; if you accidentally include it with a bunch of other documents, you may not have satisfied the knowledge required for this offense.

• Kate fills out a prescription for fentanyl for Scott

Element #2: Knowing receipt of something of monetary value

This element is satisfied if you receive something in exchange for the prescription, and that thing has a monetary value.

• Kate receives a $500 check from Scott.
• Kate receives a $500 gift card to her favorite store from Scott.

Elements of Conduct D 

Element #1: Knowing receipt of a prescription

This element is satisfied if you receive a filled-out prescription form from another person.  Like above, you need to know that you are receiving the prescription.  If you receive some paper, but you do not realize that it is a prescription, you may not have met the knowledge required for this offense.

• Kate receives a prescription for fentanyl from Scott, her primary care physician.
• Kate receives a prescription for fentanyl in the mail, sent by Scott, her friend, who is a doctor.

Element #2: Knowing the transfer of something of monetary value

This element is satisfied if you transfer something in exchange for the prescription, and that thing has a monetary value.

• Kate sends a $500 check to Scott.
• Kate gives Scott a $500 gift card to his favorite restaurant.

Finally, as discussed above, the amount (or money value) exchanged for the medication, and whether you have previously been convicted of fourth-degree criminal diversion of prescription medications or prescriptions, will determine the degree of the crime charged.

The Elements of Criminal Diversion of Medical Marijuana in the First Degree 

To be found guilty of first-degree criminal diversion of medical marijuana, the following must be proven at trial:

1. You must knowingly issue a certification for medical marijuana; AND
2. You must know, or have grounds to know, that the person receiving the certification has no medical need for medical marijuana; OR
3. You must know, or have reason to know that medical marijuana will not be used for a medical purpose.

Element #1: Issue a certification for medical marijuana 

This element can be satisfied only if you are a doctor authorized to issue certification for medical marijuana use, and you issue that certification to a patient.  Of course, you have to issue the certificate knowingly, but it’s highly improbable that you could issue one without knowing that you are doing so!

Element #2: Knowledge that the person has no medical need for marijuana 

This element is satisfied if you know that the person receiving the certification does not have a medical need for marijuana. However, you do not need affirmative knowledge that the recipient absolutely does not have a medical need. If you have reasonable grounds to know that the person does not need medical marijuana, then you satisfy this element.

Examples:

• Kate is asked for certification for medical marijuana from Scott.  She knows that he will use marijuana for recreational, not medical, use.

• Kate is asked for certification for medical marijuana from Scott.  She knows that his condition does not need marijuana for treatment.

The Elements of Criminal Diversion of Medical Marijuana in the Second Degree 

To be found guilty of second-degree criminal diversion of medical marijuana, the following must be proven at trial:

1. You must provide medical marijuana to another; AND
2. You must know, or have reason to know, that the recipient is not registered to possess medical marijuana lawfully. 

Element #1: Provide medical marijuana to another 

This element is satisfied if you physically give or transfer medical marijuana to someone.  This has to be done knowingly, so if you don’t realize that you are giving away medical marijuana, you will not satisfy this element.  Also, medical marijuana may be distinguishable from regular, non-medical marijuana because medical marijuana has been certified for medical use.

Examples:

• Kate runs a registered medical marijuana dispensary in New York. She provides certified medical marijuana to a patient.

• Kate is a registered patient who has medical marijuana.  She gives some of it to her friend Scott.

Element #2: Knowledge that the recipient is not registered to possess medical marijuana lawfully

This element is satisfied if you know that the person receiving medical marijuana is not a registered patient or organization for receiving medical marijuana. Again, you do not need affirmative knowledge of this; merely having good reason to know is enough.

If the recipient fails to furnish or display his or her registration card, and you provide the medical marijuana anyway, you will likely satisfy this element.

Examples: 

• Kate runs a registered medical marijuana dispensary in New York.  A patient asks to purchase medical marijuana but says she left her registration card at home.

• Kate is a registered patient who has medical marijuana.  She gives some of it to her friend Scott, who she knows is not registered to obtain medical marijuana legally. 

Related Offenses to Criminal Diversion

• NY Penal Law § 179.15 

Criminal retention of medical marihuana:  This occurs when a certified patient knowingly possesses more medical marijuana than she is authorized to possess.  This is a class A misdemeanor.

• NY Penal Law § 178.26 

Fraud and deceit related to controlled substances: This occurs when someone obtains a controlled substance, a prescription for a controlled substance, or the New York State prescription form, through fraud, deceit, misinformation, subterfuge, or concealment.  This is a class A misdemeanor.

•     You may also be charged with attempt or conspiracy to commit any of the above crimes.

Case Law that Further Explains the Elements of Criminal Diversion 

• People v. Medinas, 689 N.Y.S.2d 345 (Sup. Ct. 1999): Held that, for criminal diversion of prescription medication or prescriptions higher than the fourth-degree, the amount of money (or money value) exchanged does not include the value of the medication itself.

Penalties

• Criminal diversion of prescription medications and prescriptions in the fourth degree is a class A misdemeanor, with a maximum sentence of a year and a maximum fine of $1,000.

• Criminal diversion of prescription medications and prescriptions in the third degree is a class E felony, with a maximum sentence of 4 years, and a maximum fine of $5,000 or double the amount gained from the crime, whichever is higher.

• Criminal diversion of prescription medications and prescriptions in the second degree is a class D felony, with a maximum sentence of 7 years, and a maximum fine of $5,000 or double the amount gained from the crime, whichever is higher.

• Criminal diversion of prescription medications and prescriptions in the first degree is a class C felony, with a maximum sentence of 15 years, and a maximum fine of $15,000 or double the amount gained from the crime, whichever is higher.

• Criminal diversion of medical marihuana in the first degree is a class E felony, with a maximum sentence of 4 years, and a maximum fine of $5,000 or double the amount gained from the crime, whichever is higher.

• Criminal diversion of medical marihuana in the second degree is a class B misdemeanor, with a maximum sentence of 3 months and a maximum fine of $500.

Sentencing Enhancements

Your sentence can significantly increase if you have a prior felony conviction. For example, if you are found guilty of first-degree criminal diversion of medical marijuana, a class E felony, someone with no prior felony offense could receive no jail time.

However, a second felony offender will receive at least an 18-month sentence. Under New York’s three-strikes law, someone with two prior felony convictions will face at least a 15-year sentence for the same offense.

A felony conviction also has various other collateral consequences. They include:

•     Reputational harm and loss of job
•     Time and money spent defending yourself in court
•     Loss of gun ownership rights
•     Potential deportation if you are an immigrant
•     Inability to obtain job-related licenses and certifications.
•     The increased sentence for future convictions

Navigating the relevant sentencing rules is extremely consequential.  You should retain and consult with an attorney as soon as possible to understand your sentencing risk should you be found guilty of an offense.

Legal Defenses to Criminal Diversion 

There are several powerful defenses that a skilled attorney can use to minimize your risk and win an acquittal.

Defense #1: Good Faith Conduct 

• New York Penal Law § 178.05 

Provides a statutory defense to anyone who, in good faith, issues, provides, or receives a prescription, prescription medication, or medical device.

• If you are a doctor who issues a prescription in good faith to a patient that you believe has a medical need for the prescription medication or device, or
• A pharmacist who provides prescription medication or device in good faith to a patient with a facially valid prescription, or
• A patient who is in good faith seeking medical treatment for yourself or someone else who needs medical treatment, you may be entitled to this statutory defense.

• New York Penal Law § 179.05 

Provides a statutory defense to anyone who, in good faith, issues certification for medical marijuana or receives medical marijuana.

• If you are a doctor who issues certification in good faith to a patient that you believe has a medical need for medical marijuana, or
• A patient who is in good faith seeking medical treatment for yourself or
• Someone else who needs medical treatment, you may be entitled to this statutory defense.

However, it will be difficult to establish good faith conduct if you had the knowledge, or had reason to know that your conduct was unlawful.  Thus, this defense is consistent with the knowledge element of the crime.

Defense #2: Lack of Knowledge 

Related to defense #1, if you lack knowledge that you are :

• Issuing, providing, or receiving a certification, prescription, or prescription medication or device, or
• If you do not know that the transferor does not have the legal authority to provide the medication or device,
• The recipient does not have a medical need for the prescription medication or device, the recipient of certification for medical marijuana does not have a medical need for the certification, or
• The recipient of medical marijuana is not lawfully registered to obtain medical marijuana legally, and you cannot be found guilty of criminal diversion.

Defense #3: Prescription medication or device can be obtained without a prescription 

In People v. Barnes, 984 N.Y.S.2d 693 (3d Dep’t 2014), the Third Department held that a defendant could not be found guilty of criminal diversion where he used someone else’s prescription, because the medicine obtained with that prescription could have been obtained without a prescription.

Therefore, if the medication that you obtained with a fraudulent prescription could be obtained without a prescription, you may not be criminally liable for criminal diversion.

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