The opinion of the court was delivered by: Anthony J. Ferrara, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The defendant is charged with two counts of attempted criminal diversion of prescription medications in the third degree (PL §§ 110/178.15) and unlawful possession of marijuana (PL § 221.05). By Notice of Motion, served and filed on January 14, 2009, he has moved to dismiss the accusatory instrument for facial insufficiency and for various other relief. The People served and filed their Response and a Voluntary Disclosure Form ("VDF") on February 19, 2009.
The complaint alleges that on October 18, 2008, at about 10:40 p.m. at 537 West 158th Street, a police officer observed the defendant sitting in the front seat of a car attempting to exchange two sealed white medicine bottles containing 300 mg of Reyataz for $2,408 with a separately charged individual. The officer allegedly observed the currency in the hand of the separately charged individual. The complaint further alleges that, according to a Supervising Pharmacist, Reyataz is a prescription medication and an individual 300 mg bottle has a value in excess of $1000. The complaint also alleges that the officer recovered a small ziplock bag of marijuana from defendant's pants pocket. The People served and filed a New York City Police Laboratory Report confirming the substance in the bag was marijuana and a Certificate of Readiness on November 5, 2008.
The novel legal question presented by defendant's motion is whether the People must convert the complaint in a prosecution for criminal diversion of a prescription medication by filing a lab report confirming that the substance in question was in fact a prescription drug. In this case, although the People supplied an affidavit from a Supervising Pharmacist confirming that Reyataz is a prescription drug, the lab report did not provide confirmation that any of the pills in the sealed bottles (each labeled Reyataz) was in fact Reyataz.*fn1 For the reasons set forth below the Court holds that where the charge is an "attempt" to divert a prescription medication, the People need not provide a lab confirming that the drug recovered was in fact a prescription medication.
Motion to Dismiss for Facial Insufficiency
An information is facially sufficient if the factual section contains allegations of an evidentiary nature demonstrating reasonable cause to believe that the defendant committed the offense charged (CPL § 100.15; CPL § 100.40[b]). The facts must be supported by non-hearsay allegations which establish, if true, every element of the charged offense (CPL § 100.40[c]; People v. Alejandro, 70 NY2d 133, 135 ). The standard for pleading a prima-facie case is lesser than the heavy burden of proof beyond a reasonable doubt required at trial (see People v Henderson, 92 NY2d 677, 680 ). While the factual allegations of an information must give the defendant sufficient notice to prepare a defense and prevent the defendant from being twice tried for the same offense, they should be given a fair and not overly restrictive reading (see People v. Casey, 95 NY2d 354, 360 ). When assessing the facial sufficiency of an accusatory instrument, a court must view the facts in the light most favorable to the People (see People v. Gonzalez, 184 Misc 2d 262 [App Term, 1st Dept 2000], lv. denied 95 NY2d 835 ). However, conclusory allegations are insufficient (see People v Dumas, 68 NY2d 729 ) and a court need not ignore common sense or the significance of the alleged conduct in determining facial sufficiency (Gonzalez, 184 Misc 2d at 264).
Attempted Criminal Diversion of a Prescription Medications in the Third Degree
A person is guilty of criminal diversion of prescription medications in the third degree when he "commits a criminal diversion act, and the value of the benefit exchanged is in excess of one thousand dollars." (PL § 178.15). A criminal diversion act is "an act or acts in which a person knowingly: [a] transfers or delivers, in exchange for anything of a pecuniary value, a prescription medication or device with knowledge or reasonable grounds to know that the recipient has no medical need for it" (PL § 178.00). Prescription medication means any medication "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" (PL § 178.00). A person is guilty of an attempt when, with intent to commit the crime, "he engages in conduct which tends to effect the commission of such crime" (PL § 110.00).
The defendant argues that the allegations in the complaint are insufficient because the lab report does not specifically confirm the presence of Reyataz. In prosecutions involving Articles 220 and 221 of the Penal Law, courts generally require a scientific test confirming the presence of the illicit substance for an otherwise sufficient misdemeanor information to satisfy the prima facie pleading requirement to survive a motion to dismiss (see People v Ranieri, 127 Misc 2d 132 [Crim Ct, New York County 1985]; People v Swamp 84 NY2d 725  [holding that detailed, uncontradicted Grand Jury testimony regarding a positive field test supported an indictment for drug possession]; Matter of Angel A., 92 NY2d 430  [finding a juvenile delinquency petition which accused a youth of criminal sale and possession of a controlled substance was legally sufficient where the petition was accompanied by the supporting deposition of the buy officer who stated that the presence of the controlled substance was established by a field test]; People v. O'Neill, 285 AD2d 669 [3rd Dept 2001] [affirming dismissal of indictment when purchasers' identifications of the prescription pills purchased from the defendant were conclusory and insufficient to support the conspiracy and criminal sale of a controlled substance charges]).
Neither side has cited any authority to support the proposition that a prosecution under Article 178 requires a lab report or other recognized scientific test confirming that the substance recovered is in fact a prescription drug. The Court of Appeals in In re Jahron S. (79 NY2d 632 ) refused to establish a per se rule that a laboratory report is necessary to establish a prima facie case in all drug possession cases stating: "We leave open the possibility that a deposition based on personal knowledge and expertness may, in now unforeseen circumstances, qualify as sufficient evidence to establish a prima facie case of drug possession . . . " (Jahron S., at 640). In this case, the complaint charges an attempt to exchange two sealed 300 mg bottles of Reyataz for $2,408. The supporting deposition of the Supervising Pharmacist confirms that Reyataz is a prescription medication, and that the value of a 300 mg bottle is in excess of $1000. These allegations do provide reasonable cause to believe that the defendant attempted to commit criminal diversion of prescription medication in the third degree (compare People v. Ross, 12 Misc 3d 755 [Crim Ct, Kings County 2006] [dismissing complaint alleging criminal diversion of prescription medications in the fourth degree where the People failed to convert the complaint by either a lab report or non-hearsay allegations that the substance recovered was a prescription medication]). Whether the pills in the bottle were in fact a prescription medication is not an element of the offense charged (see People v Sessions, 181 AD2d 842 [2nd Dept 1992] lv denied 80 NY2d 837  [crime of attempted criminal sale of a controlled substance is committed when the defendant sells a lawful substance mistakenly believing it to be crack cocaine]). Defendant's motion to dismiss the counts of criminal diversion of prescription medications in the third degree for facial insufficiency is denied.
Further, the defendant argues that the allegations in the complaint fail to support that the defendant knowingly sold a prescription medication or that he knew, or had reason to know, that the recipient had no medical need for medication (PL § 178.00[a]). Where the essential elements are determined by the statute defining the crime and where the defining section contains an exception, the accusatory instrument must allege that the crime is not within the exception (see People v Kohut, 30 NY2d 183 ; People v Santana, 7 NY3d 234 ). Penal Law § 178 requires that the People allege facts that support the elements that the defendant knowingly possessed a prescription mediation and that the defendant knew, or had reason to know, that the recipient did not need the medication. Here, the allegations that the defendant attempted to exchange two bottles labeled Reyaztaz for $2,408 provide reasonable cause to believe that the defendant knew the bottles contained the prescription medication (see People v. Mizell, 72 NY2d 651; People v. Sessions, 181 AD2d 842 [2nd Dept 1992] lv denied 80 NY2d 837 , supra). Viewing the facts in the light most favorable to the People,the allegations that the officer observed the defendant attempt to exchange two bottles labeled Reyataz for $2,408 in the front seat of a car at 10:40 p.m. provide, at least at the pleading stage, reasonable cause to believe that the defendant knew that the buyer had no medical need for the Reyataz (see People v. Gonzalez, 184 Misc 2d 262 [App Term, 1st Dept 2000], lv. denied 95 NY2d 835 ).
Finally, the defendant argues that the two charges must be combined into only one count. Multiple sales of illegal drugs are separate offenses where there is evidence of separate "impulses" to sell (see Blockburger v. United States, 284 U.S. 299 ; People v. Okafore, 72 NY2d 81 ). The complaint lacks factual allegations of an evidentiary nature that provide reasonable cause to believe that the defendant attempted two separate sales of Reyataz (see People v. Crampton, 2007 N.Y.Slip Op 9445 [3rd Dept 2007];cf People v. Medinas, 180 Misc 2d 251 [Sup ...