117 A.D.3d 1203
N.Y. App. Div.2014Background
- Defendant, a Schenectady Police detective, was charged with three counts of criminal diversion of prescription medications and prescriptions in the fourth degree and one count of official misconduct.
- Two criminal diversion counts were dismissed; defendant was convicted of official misconduct and one criminal-diversion count.
- Record shows Soma (muscle relaxant) not a controlled substance; no evidence that a prescription was required to lawfully obtain Soma.
- Evidence did not prove that the pills received by defendant met the definition of a prescription medication.
- Court reversed on law, dismissed indictment, and noted potential improper Molineux evidence that would have required reversal anyway.
- Legislature later amended Public Health Law § 3306 classifying Carisoprodol as a narcotic drug.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supports criminal diversion of prescription medications | People contends pills were prescription meds per statute | Policing badge incident not an unauthorized diversion | Conviction for criminal diversion reversed; count dismissed |
| Whether evidence supports official misconduct | People argues badge use sought faster service in execution of official duties | Feerick standard requires explicit rule violation or unauthorized act | Conviction for official misconduct reversed; indictment dismissed |
Key Cases Cited
- People v Ross, 12 Misc 3d 755 (NY Misc. 2006) (whether a drug requires a prescription for its lawful sale)
- People v Khan, 82 AD3d 44 (2d Dep't 2011) (prescription requirement for drug eligibility; affirmed on appeal)
- People v Polanco, 24 Misc 3d 406 (NY Misc. 2009) (prescription medication element in diversion statute)
- People v Feerick, 93 NY2d 433 (1999) (official misconduct requires unauthorized act with intent to obtain/denied benefit)
- People v Moreno, 100 AD3d 435 (1st Dep't 2012) (official acts related to office; off-duty badge use discussed)
- People v Lucarelli, 300 AD2d 1013 (2d Dep't 2002) (official misconduct considerations)
- People v Chapman, 13 NY2d 97 (1963) (official functions include acts beyond explicit authorization)
- People v Watson, 32 AD3d 1199 (3d Dep't 2006) (disciplinary vs. criminal forum for officer misbehavior)
- People v Buskey, 45 AD3d 1170 (2010) (Molineux evidence issues; potential reversal)
- People v Wlasiuk, 32 AD3d 674 (3d Dep't 2006) (Molineux/ improper evidence concerns)
- People v Wilkinson, 71 AD3d 249 (1st Dep't 2010) (related to evidentiary errors and reversal)