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New York Penal Law 179.10: Criminal diversion of medical marijuana in the first degree

By Spodek Law Group | May 5, 2017
(Last Updated On: February 25, 2023)

Last Updated on: 25th February 2023, 05:36 pm

New York Penal Law 179.10: Criminal diversion of medical marijuana in the first degree is a class E felony charge. This charge relates to several offenses, with the shared commonality that a medical marijuana certificate was issued to an individual who does not qualify to receive one or that medical marijuana was transferred to an individual not qualified to use it.

This charge is leveled against a medical practitioner. Under New York Public Health Law 3360, such a practitioner is defined as a physician who has completed the required coursework for the position and is both licensed in the state of New York and qualified to treat serious medical conditions. Under New York penal law 179.10, it must be proven that such a practitioner issued a medical marijuana certificate to an individual knowing that it would not be used to treat a serious medical condition or that the patient did not have a need for the certificate.

Criminal diversion of medical marijuana in the first degree has several related offenses. New York Penal Law 179.11 is Criminal diversion of medical marijuana in the second degree. Also, New York Penal Law 179.15 deals with Criminal retention of medical marijuana.

Example of Criminal diversion of medical marijuana in the first degree

Many medical practitioners are also supporters of marijuana for recreational purposes. It is also possible that many of these physicians use marijuana recreationally. If one such physician was to eventually treat patients with severe medical conditions, such as terminal cancer, chronic pain, or PTSD, they would be in the position to issue medical marijuana certificates to these patients. Being that this physician is also a supporter of recreational marijuana use, they may also issue such certificates to patients who they know with good faith are not eligible to receive the certificate in the state of New York. Such a doctor may see many patients who come to him solely for the false approval of their medical marijuana certificate, even if they are not in serious pain or facing a terminal disease. Under New York Penal Law 179.10, this practitioner is in violation of their medical authority and could be arrested and convicted of Criminal diversion of medical marijuana in the first degree.


There are several possible defenses to Criminal diversion of medical marijuana in the first degree and a NYC criminal attorney would best assist in providing the best course of action. The statute of criminal diversion is not applicable to several persons. The first of which is a medical practitioner who issued a certificate in good faith under the correct view that the person receiving the certificate would use it for treatment of a medical condition. This, of course, is a lawful use of the practitioner’s New York medical license. Also, a pharmacist who operates a lawful pharmacy is immune to New York Penal Law 179.10. Lastly, a person who seeks legitimate treatment for a medical condition that requires marijuana is immune, as is the person who assists such a person in the obtaining of their marijuana for medicinal uses.


Criminal diversion of medical marijuana in the first degree is a class E felony. As such, being convicted with New York Penal Law 179.10 carries a maximum prison term of four years. A conviction also carries a possible five-year maximum probation and a fine. There may also be additional consequences related to one’s medical license unrelated to the court system.

New York Penal Law 179.11: Criminal diversion of medical marijuana in the second degree

Although there are statutes involving the sale of prescription medications and medical devices, the New York Penal Code also has a separate statue regarding the criminal diversion of medical marijuana. As per this statute, it is illegal for a person to issue a medical marijuana certificate to someone who does not meet the prerequisites for one. This statute also makes it illegal for a person to give medical marijuana to someone who is not qualified to receive it. Although there are several degrees of offenses related to the criminal diversion of medical marijuana, a second degree offense specifically refers to a person who knowingly sells or provides medical marijuana to someone who is not qualified to receive it.

Examples of Criminal Diversion of Medical Marijuana in the Second Degree

If someone is certified to use and access medical marijuana, and then uses that certification to knowingly supply marijuana to others without a certification, then they could be charged with criminal diversion of medical marijuana in the second degree. For instance, if someone sells their excess medical marijuana to a friend who isn’t certified to use it, then they could eventually be charged under the statute.

While there are other situations in which a person could be charged with criminal diversion of medical marijuana, the second degree offense is only brought against people who knowingly sold medical marijuana to those who were not legally authorized to have access to it.

Defending Against Criminal Diversion of Medical Marijuana in the Second Degree

There are several ways to defend against a second degree charge of criminal diversion of medical marijuana. Depending on the circumstances around a specific case, a NYC criminal lawyer can select the most appropriate defense.

The first main defense is to prove that the defendant was an authorized practitioner who issued a medical marijuana certification in good faith. Similarly, a person acting in their capacity as a pharmacist can also argue against the charges.

Aside from these defenses, another common argument is that a person was only seeking medical marijuana in order to treat a condition, or they were trying to access medical marijuana for someone else who was suffering from a condition. In these cases, getting access to medical marijuana without a certification can potentially be justified.

Sentencing for Criminal Diversion of Medical Marijuana in the Second Degree

Criminal diversion of medical marijuana in the second degree is considered to be a class B misdemeanor. This means that a person found guilty of the charges could be sentenced to up to 90 days in jail. Aside from possible jail time, a person convicted of criminal diversion of medical marijuana in the second degree could also face up to one year of probation, as well as be forced to pay a sizeable fine.

Although criminal diversion of medical marijuana in the second degree is only a misdemeanor, that does not mean it does not have potentially serious consequences. A person who is convicted of criminal diversion of medical marijuana in the second degree can still face jail time and fines, so it’s important that anyone facing these charges contact a knowledgeable legal representative to take on their case. Luckily, these charges are not impossible to overcome. In fact, there are several viable defenses that can be prepared to combat them.

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