CJI2d[NY] Penal Law § 178.10

The (specify) count is Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree.

Under our law, a person is guilty of criminal diversion of prescription medications and prescriptions in the fourth degree when he or she commits a criminal diversion act.

The following terms used in that definition have a special meaning:

CRIMINAL DIVERSION ACT means an act or acts in which a person knowingly:

Select appropriate alternative(s):

(a) transfers or delivers, in exchange for anything of pecuniary value, a prescription medication or device with knowledge or reasonable grounds to know that the recipient has no medical need for it; or

(b) receives, in exchange for anything of pecuniary value, a prescription medication or device with knowledge or reasonable grounds to know that the seller or transferor is not authorized by law to sell or transfer such prescription medication or device; or

(c) transfers or delivers a prescription in exchange for anything of pecuniary value; or

(a) receives a prescription in exchange for anything of pecuniary value.¹

PRESCRIPTION MEDICATION OR DEVICE means any article for which a prescription is required in order to be lawfully sold, delivered or distributed by any person authorized by law to engage in the practice of the profession of pharmacy.²

PRESCRIPTION means a direction or authorization by means of a written prescription form or an oral prescription which permits a person to lawfully obtain a prescription medication or device from any person authorized to dispense such prescription medication or device.³

A person KNOWINGLY acts with respect to conduct or to a circumstance when that person is aware that his or her conduct is of such nature or that such circumstance exists.⁴

If one of the following is placed in issue,

add appropriate provision:

The conduct prohibited by this law does not apply to

a duly licensed physician or other person authorized to issue a prescription acting in good faith in the lawful course of his or her profession;

a duly licensed pharmacist acting in good faith in the

lawful course of the practice of pharmacy;

a person acting in good faith seeking treatment for a medical condition or assisting another person to

obtain treatment for a medical condition.

In order for you to find the defendant guilty of this crime, the People are required to prove from all of the evidence in the case beyond a reasonable doubt both of the following (two/three) elements:

1. That on or about (date) in the county of (County), the defendant (defendant’s name), committed a criminal diversion act⁵; and

2. That the defendant did so knowingly.

If one of the following is placed in issue,

add appropriate provision as element three.

1. The defendant was not

a duly licensed physician or other person authorized to issue a prescription acting in good faith in the lawful course of his or her profession;

a duly licensed pharmacist acting in good faith in the

lawful course of the practice of pharmacy;

a person acting in good faith seeking treatment for a medical condition or assisting another person to

obtain treatment for a medical condition.⁶

If you find the People have proven beyond a reasonable doubt (each / both) of those elements, you must find the defendant guilty of this crime.

If you find the People have not proven beyond a reasonable doubt (either one / any one) or more of those elements, you must find the defendant not guilty of this crime.