What's happening
This bill creates new homicide charges for deaths caused by drug sales, increases penalties for certain drug offenses, and expands definitions related to controlled substances and prescriptions.
Why it matters
Introduces new homicide charges against drug sellers. The bill creates graduated homicide offenses tied to selling drugs that result in a person’s death, including specific provisions for cases involving children. This means drug dealers can now face homicide charges if the drugs they sell contribute to a fatal overdose, increasing criminal liability and potential sentences.
Shifts legal presumptions and defenses. There is a rebuttable presumption that a drug sold caused or contributed to a death if it occurs within 24 hours of the sale, which could make prosecutions easier. However, exceptions and affirmative defenses exist for those who, in good faith, seek medical help for overdose victims—especially if the sale was not for profit or the seller has no serious prior convictions.
Expands and increases penalties for heroin and paraphernalia offenses. The bill lowers thresholds and/or adds new criteria (such as number of packages or aggregate weight) for higher-level heroin offenses, and raises the penalty for criminal possession and sale of drug paraphernalia from a misdemeanor to a felony. This could result in longer prison sentences and more prosecutions for lower-level conduct.
Targets prescription-related offenses and expands definitions. By including electronic and blank prescription forms in the definition of controlled substance offenses, and increasing penalties for practitioners or pharmacists who unlawfully sell prescriptions, the bill aims to address prescription drug diversion and fraud more aggressively. This reflects a broader approach to the opioid crisis, covering both illicit street sales and prescription abuse.
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Who cares
Headline styles
Charge Dealers for Overdose Deaths
Plain English, a few words. Used as the page title.
Sponsors
Senator · Senate District 7
2 Co-sponsors
History
- Referred to codes
- 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.
New Drug Homicide Penalties
In Assembly Committee · Codes · Sponsor Charles Lavine
Full text
6 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
4313
2017-2018 Regular Sessions
IN SENATE
February 9, 2017
Introduced by Sen. PHILLIPS -- 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 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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06096-02-7
S. 4313 2
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 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
S. 4313 3
(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.
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.
S. 4313 4
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 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:
S. 4313 5
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 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.
Sponsor's memo
Title of bill
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
Purpose
Establishes certain offenses based on homicide due to criminal sale of a controlled substance and to the criminal sale of a controlled substance to a child in the first degree.
Summary of provisions
Section 1. The penal law is amended by adding three new sections 125.28, 125.29 and 125.30.
Read the full memo (957 words)
Section 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.
Section 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.
Section 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.
Section 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.
Section 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.
Section 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.
Section 8. The penal law is amended by adding a new section 220.49.
Section 9. The closing paragraph of section 220.50 of the penal law, as amended by chapter 627 of the laws of 1990, is amended.
Section 10. Section 220.55 of the penal law, as added by chapter 970 of the laws of 1971, is amended.
Section 11. Subdivision 15 of section 220.00 of the penal law, as added by chapter 118 of the laws of 1986, is amended.
Section 12. Section 220.65 of the penal law, as amended by chapter 31 of the laws of 2014, is amended.
Section 13. This act shall take effect on the first of November next succeeding the date upon which it shall have become a law.
Justification
In 2014, Governor Cuomo launched the "Combat Heroin Campaign," which aims to reduce the number of lives lost to substance abuse overdoses. New York State is in the middle of an unprecedented heroin epidemic. With record numbers of illegal drug sales each year, this issue reaches past just heroin. There have been far too many deaths from prescription pills and heroin, notably amongst youth in our state. We must hold those who sell illegal substances accountable for the consequences of their actions, especially when it leads to the death of another individual. This includes stronger penalties and broader ability to prosecute felony charges when illegal substances are involved.
In 1972, precedent was established on this issue. In The People of the State of New York v. Pinckney, a defendant was found not guilty of homicide and also of manslaughter, despite selling heroin, and the instruments to inject heroin, to the individual who died the same day from a heroin overdose. The County Court held, "the Penal Law does not contain any provision whereby the sale of a dangerous drug and the means of injecting it, thereby resulting in the death of the user, constitute the crime of manslaughter or criminally negligent homicide."
This bill will reverse the outdated precedent and hold sellers responsible for the deaths they caused by their distribution of illegal drugs. It will allow for the prosecution of drug dealers whose sale leads to the death of an individual to be charged with criminally negligent homicide and/or manslaughter. It will also strengthen the penalty for the sale of illegal substances to minors, especially in the case of death.
Another important provision is to amend the weight requirements for heroin in order to be charged with criminal possession or sale. The average dose of heroin is just 0.03 grams, which means that even an extremely small amount can be deadly. This bill will decrease the weight requirements so that individuals who carry and distribute small, but lethal, amounts of heroin can be charged with a crime.
Finally, it will include the abuse of electronic prescriptions and blank prescription forms as punishable offenses. Currently, neither the sale of an electronic prescription, nor the sale of a blank prescription from a medical provider is included in the criminal sale of prescriptions statue. The addition of these provisions will further limit the ability for abuse from providers and patients in purchasing prescription drugs.
The scourge of illegal drug sales and usage is a complex and widespread problem in our communities. In addition to expanding prevention and treatment services, the penalty for selling drugs that lead to death, especially the deaths of minors, must be strong enough to reflect the severity of the crime. Statues must also reflect and criminalize the full range of mechanisms through which drug dealers can acquire and sell illegal substances. This bill will further these goals and is an important step forward in solving the epidemic of substance abuse in our state.
Effective date
This act shall take effect on the first of November next succeeding the date upon which it shall have become law.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.