What's happening
This bill creates new homicide offenses related to drug sales causing death, increases drug offense penalties, and expands definitions of controlled substance crimes.
Why it matters
Creates new homicide charges for drug sales resulting in death. , establishing serious criminal liability for sellers when a sold controlled substance directly or indirectly causes a fatal overdose within 24 hours. This could significantly increase the legal risks for anyone involved in drug distribution, potentially impacting both large-scale and small-scale sellers.
Establishes harsher penalties based on the circumstances and victim. The bill creates three degrees of homicide due to drug sales, with the most severe penalties (up to a class B felony) if the victim is a child and the sale was for profit. This focuses additional punishment on those selling to minors or in situations where the seller should have known the recipient was particularly vulnerable (e.g., post-rehab, already impaired).
Expands what counts as a serious drug offense. , including new thresholds for heroin quantity and new forms of criminal sale (e.g., electronic and blank prescription forms), as well as making paraphernalia charges more serious felonies. This broadens the scope of prosecutable behavior and may lead to longer sentences for a wider range of drug-related conduct.
Includes some protections for those seeking medical help during an overdose. , offering immunity or an affirmative defense for sellers who, in good faith, seek emergency assistance for someone overdosing, particularly if the sale was not for profit and the seller has no prior serious drug convictions. This could encourage life-saving intervention but requires the seller to meet specific criteria.
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Who cares
District attorneys and criminal defense lawyers
The bill would create three drug-sale homicide offenses, with a rebuttable causation presumption for certain deaths within 24 hours of a sale and specified protections for sellers who seek medical help.
Adults over 21 selling drugs to children under 17
Qualifying sales for payment or other gain would become a new class A-II felony, while qualifying transfers without gain would remain class B felonies.
People charged with heroin or drug paraphernalia offenses
The bill would add heroin weight and package-count thresholds to possession and sale offenses and increase felony classifications for criminally using drug paraphernalia.
Prescribers and pharmacists
The bill would include electronic prescriptions in the controlled-substance prescription definition, extend unlawful-sale provisions to blank prescription forms and raise the practitioner-or-pharmacist sale offense from a class C to a class B felony.
Headline styles
New Drug Homicide Penalties
Plain English, a few words. Used as the page title.
Sponsors
1 Co-sponsor
History
- Referred to codes
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Charge Dealers for Overdose Deaths
In Senate Committee · Codes · Sponsor Elaine Phillips
Full text
6 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
9656
IN ASSEMBLY
January 30, 2018
Introduced by M. of A. LAVINE -- read once and referred 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 Assembly, do enact as follows:
Section 1. The penal law is amended by adding three new sections 125.28, 125.29 and 125.30 to read as follows: § 125.28 Homicide due to criminal sale of a controlled substance in the
third degree.
A person is guilty of homicide due to criminal sale of a controlled substance in the third degree when he or she:
1. Commits the offense of: (a) (i) criminal sale of a controlled substance in the fifth degree as defined in section 220.31 of this chapter; (ii) criminal sale of a controlled substance in the fourth degree as defined in section 220.34 of this chapter; (iii) criminal sale of a controlled substance in the third degree as defined in section 220.39 of this chapter; (iv) criminal sale of a controlled substance in the second degree as defined in section 220.41 of this chapter; or (v) criminal sale of a controlled substance in the first degree as defined in section 220.43 of this chapter; and
(b) the controlled substance sold causes, or contributes to, the death of the person to whom the controlled substance was sold.
2. It shall be a rebuttable presumption that the controlled substance sold pursuant to subdivision one of this section caused or contributed to the death of the person where the type of controlled substance sold, alone or in combination with other substances, is determined to be the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06096-02-7
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cause of death of the person when the death occurs within twenty-four hours of the sale.
3. The provisions of article two hundred sixteen of the criminal procedure law shall not apply to a violation of this section. Nothing contained in this section shall prevent the court from sentencing a person convicted under this section to any other sentence authorized by law under articles sixty-five and seventy of this chapter.
4. Where a person (hereinafter "seller") violates the provisions of paragraph (a) of subdivision one of this section but the seller, in good faith, sought health care for the other person whose death resulted from the ingestion of the controlled substance sold, while that other person was experiencing the drug or alcohol overdose or other life threatening medical emergency that led to that person's death, the seller shall not be charged or prosecuted under this section or article two hundred twenty of this chapter when the sale was not for consideration or other benefit or gain.
5. It shall be an affirmative defense to a violation of this section or a violation of article two hundred twenty of this chapter where a seller violates paragraph (a) of subdivision one of this section and the sale was for consideration or other benefit or gain, but the seller, in good faith, sought health care for the other person whose death resulted from the ingestion of the controlled substance sold, while that other person was experiencing a drug or alcohol overdose or other life threatening medical emergency that led to that person's death, and the defendant has no prior conviction for the commission or attempted commission of a class A-I, A-II or B felony under article two hundred twenty of this chapter.
Homicide due to criminal sale of a controlled substance in the third degree is a class D felony. § 125.29 Homicide due to criminal sale of a controlled substance in the
second degree.
A person is guilty of homicide due to criminal sale of a controlled substance in the second degree when he or she:
1. Commits the offense of: (a) (i) criminal sale of a controlled substance in the fifth degree as defined in section 220.31 of this chapter; (ii) criminal sale of a controlled substance in the fourth degree as defined in section 220.34 of this chapter; (iii) criminal sale of a controlled substance in the third degree as defined in section 220.39 of this chapter; (iv) criminal sale of a controlled substance in the second degree as defined in section 220.41 of this chapter; or (v) criminal sale of a controlled substance in the first degree as defined in section 220.43 of this chapter; and
(b) the controlled substance sold causes, or contributes, to the death of the person to whom the controlled substance was sold; and
(c) (i) an additional substance was added to the controlled substance sold which enhances the effects of the controlled substance and/or increases the danger of ingestion; or
(ii) the person to whom the controlled substance was sold was impaired by one or more substances at the time of the sale; or
(iii) the person knew, or had reason to know, that the person to whom the controlled substance was sold was using, or intended to use, one or more other substances in conjunction with the controlled substance sold; or
(iv) the person knew, or had reason to know, that the person to whom the controlled substance was sold had completed a rehabilitation program, or overdosed, within thirty days of the sale.
A. 9656 3
2. It shall be a rebuttable presumption that the controlled substance sold pursuant to subdivision one of this section caused or contributed to the death of the person where the type of controlled substance sold, alone or in combination with other substances, is determined to be the cause of death of the person when the death occurs within twenty-four hours of the sale.
3. The provisions of article two hundred sixteen of the criminal procedure law shall not apply to a violation of this section. Nothing contained in this section shall prevent the court from sentencing a person convicted under this section to any other sentence authorized by law under articles sixty-five and seventy of this chapter.
4. Where a person (hereinafter "seller") violates the provisions of subdivision one of this section but the seller, in good faith, sought health care for the other person whose death resulted from the ingestion of the controlled substance sold, while that other person was experiencing the drug or alcohol overdose or other life threatening medical emergency that led to that person's death, the seller shall not be charged or prosecuted under this section or article two hundred twenty of this chapter when the sale was not for consideration or other benefit or gain.
5. It shall be an affirmative defense to a violation of this section or a violation of article two hundred twenty of this chapter where a seller violates the provisions of subdivision one of this section and the sale was for consideration or other benefit or gain, but the seller, in good faith, sought health care for the other person whose death resulted from the ingestion of the controlled substance sold, while that other person was experiencing a drug or alcohol overdose or other life threatening medical emergency that led to that person's death, and the defendant has no prior conviction for the commission or attempted commission of a class A-I, A-II or B felony under article two hundred twenty of this chapter.
Homicide due to criminal sale of a controlled substance in the second degree is a class C felony. § 125.30 Homicide due to criminal sale of a controlled substance in the
first degree.
A person is guilty of homicide due to criminal sale of a controlled substance in the first degree when he or she:
1. Commits the offense of criminal sale of a controlled substance to a child in the first degree as defined in section 220.49 of this chapter and the controlled substance sold causes, or contributes, to the death of the person to whom the controlled substance was sold.
2. It shall be a rebuttable presumption that the controlled substance sold pursuant to subdivision one of this section caused or contributed to the death of the person where the type of controlled substance sold, alone or in combination with other substances, is determined to be the cause of death of the person when the death occurs within twenty-four hours of the sale.
3. The provisions of article two hundred sixteen of the criminal procedure law shall not apply to a violation of this section. Nothing contained in this section shall prevent the court from sentencing a person convicted under this section to any other sentence authorized by law under articles sixty-five and seventy of this chapter.
4. It shall be an affirmative defense to a violation of this section or a violation of article two hundred twenty of this chapter where a person (hereinafter "seller") violates subdivision one of this section and the sale was for consideration or other benefit or gain, but the
A. 9656 4
seller, in good faith, sought health care for the other person whose death resulted from the ingestion of the controlled substance sold, while that other person was experiencing a drug or alcohol overdose or other life threatening medical emergency that led to that person's death, and the defendant has no prior conviction for the commission or attempted commission of a class A-I, A-II or B felony under article two hundred twenty of this chapter.
Homicide due to criminal sale of a controlled substance in the first degree is a class B felony.
§ 2. Subdivision 13 of section 220.16 of the penal law, as amended by chapter 75 of the laws of 1995, is amended and a new subdivision 14 is added to read as follows:
13. phencyclidine and said phencyclidine weighs one thousand two hundred fifty milligrams or more[.]; or
14. one or more preparations, compounds, mixtures or substances containing heroin and said preparations, compounds, mixtures or substances are of an aggregate weight of 1.5 grams or more, or such preparations, compounds, mixtures or substances are packaged in fifty or more containers, packets or "decks".
§ 3. Subdivision 7 of section 220.18 of the penal law, as amended by chapter 75 of the laws of 1995, is amended and a new subdivision 8 is added to read as follows:
7. methadone and said methadone weighs two thousand eight hundred eighty milligrams or more[.]; or
8. one or more preparations, compounds, mixtures or substances containing heroin and said preparations, compounds, mixtures or substances are of an aggregate weight of twelve grams or more, or such preparations, compounds, mixtures or substances are packaged in four hundred or more containers, packets or "decks".
§ 4. Subdivision 2 of section 220.21 of the penal law, as amended by chapter 75 of the laws of 1995, is amended and a new subdivision 3 is added to read as follows:
2. methadone and said methadone weighs five thousand seven hundred sixty milligrams or more[.]; or
3. one or more preparations, compounds, mixtures or substances containing heroin and said preparations, compounds, mixtures or substances are of an aggregate weight of twenty-four grams or more, or such preparations, compounds, mixtures or substances are packaged in eight hundred or more containers, packets or "decks".
§ 5. Subdivision 7 of section 220.41 of the penal law, as amended by chapter 75 of the laws of 1995, is amended and a new subdivision 8 is added to read as follows:
7. methadone and the methadone weighs three hundred sixty milligrams or more[.]; or
8. one or more preparations, compounds, mixtures or substances containing heroin and the preparations, compounds, mixtures or substances are of an aggregate weight of 1.5 grams or more, or such preparations, compounds, mixtures or substances are packaged in fifty or more containers, packets or "decks".
§ 6. Subdivision 2 of section 220.43 of the penal law, as amended by chapter 75 of the laws of 1995, is amended and a new subdivision 3 is added to read as follows:
2. methadone and the methadone weighs two thousand eight hundred eighty milligrams or more[.]; or
3. one or more preparations, compounds, mixtures or substances containing heroin and the preparations, compounds, mixtures or
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substances are of an aggregate weight of six grams or more, or such preparations, mixtures or substances are packaged in two hundred or more containers, packets or "decks".
§ 7. Section 220.48 of the penal law, as added by section 28 of part AAA of chapter 56 of the laws of 2009, is amended to read as follows: § 220.48 Criminal sale of a controlled substance to a child in the
second degree.
A person is guilty of criminal sale of a controlled substance to a child in the second degree when, being over twenty-one years old, he or she knowingly and unlawfully sells without consideration or other benefit or gain a controlled substance in violation of section 220.34 or 220.39 of this article to a person less than seventeen years old.
Criminal sale of a controlled substance to a child in the second degree is a class B felony.
§ 8. The penal law is amended by adding a new section 220.49 to read as follows: § 220.49 Criminal sale of a controlled substance to a child in the first
degree.
A person is guilty of criminal sale of a controlled substance to a child in the first degree when, being over twenty-one years old, he or she knowingly and unlawfully sells a controlled substance for consideration or other benefit or gain in violation of section 220.34 or 220.39 of this article to a person less than seventeen years old.
Criminal sale of a controlled substance to a child in the first degree is a class A-II felony.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
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