| People v Barnes |
| 2014 NY Slip Op 03310 [117 AD3d 1203] |
| May 8, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vSherri Barnes, Appellant. |
DerOhannesian & DerOhannesian, Albany (Paul DerOhannesian II of counsel),for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Schenectady County(Drago, J.), rendered October 1, 2010, upon a verdict convicting defendant of the crimesof criminal diversion of prescription medications and prescriptions in the fourth degreeand official misconduct.
Defendant, who was then a detective with the City of Schenectady PoliceDepartment, was charged by indictment with three counts of criminal diversion ofprescription medications and prescriptions in the fourth degree and one count of officialmisconduct. The criminal diversion charges were based on allegations that defendantprovided Susan Jewett with cash, groceries and other items in exchange for Jewett'sprescription medications. The official misconduct charge was based on an incident wheredefendant, while off-duty, flashed her badge at a pharmacist filling Jewett's prescriptionand inquired whether the pharmacist could speed things up. Two of the criminaldiversion charges were dismissed during trial, but defendant was convicted of officialmisconduct and one count of criminal diversion. County Court imposed a sentence ofthree years of probation. Defendant appeals.
The evidence was not legally sufficient to support the criminal diversion charge. "Aperson is guilty of criminal diversion of prescription medications and prescriptions in thefourth degree when he or she commits a criminal diversion act" (Penal Law§ 178.10). A criminal [*2]diversion act mayinclude "an act or acts in which a person knowingly . . . receives, inexchange for anything of pecuniary value, a prescription medication . . .with knowledge or reasonable grounds to know that the seller or transferor is notauthorized by law to sell or transfer such prescription medication" (Penal Law§ 178.00 [3] [b]). A prescription medication is defined as "any article forwhich a prescription is required in order to be lawfully sold, delivered or distributed byany person authorized by law to engage in the practice of the profession of pharmacy"(Penal Law § 178.00 [1]). To prevail on this charge, the People had toprove that the substance transferred from Jewett to defendant "was, in fact, a prescriptionmedication . . . as opposed to an 'over-the-counter-drug' " that canbe sold without a prescription (People v Ross, 12 Misc 3d 755, 760 [2006]; see People v Khan, 82 AD3d44, 55 n 7 [2011], affd 18 NY3d 535 [2012]; compare People v Polanco, 24Misc 3d 406, 409-410 [2009]).
At trial, several pharmacy employees testified that the muscle relaxant Soma (or itsgeneric form, Carisoprodol) was not a controlled substance.[FN1]
Although the record contains Jewett's prescriptions for Soma—the samemedication that she apparently gave or sold to defendant in the transaction that resultedin the criminal diversion conviction—there is no evidence that a prescription is"required" for a person to lawfully obtain that medication (Penal Law§ 178.00 [1]). While it may seem logical to infer that a prescription isrequired if one was obtained for that medication, such logic is faulty. Some medicationsare available either with or without a prescription (see 26 USC§§ 106 [f] [stating that expenses for medication are reimbursable frompre-tax health savings accounts and flexible spending accounts "only if such medicine ordrug is a prescribed drug (determined without regard to whether such drug is availablewithout a prescription)"]; 223 [d] [2] [A] [same]; 220 [d] [2] [A]; Martin J. McMahon,Jr., et al., Recent Developments in Federal Income Taxation: The Year 2010, 10Fla Tax Rev 565, 626 [2011]; The Emergency Contraception Website,http://ec.princeton.edu/locator/concerned-about-cost.html [accessed Feb. 5, 2014][stating that in some states, Medicaid covers over-the-counter purchases of emergencycontraception, while in other states a person may need a prescription to obtain Medicaidcoverage for the pills]; Medpage Today's KevinMD.com, Making More DrugsNon-prescription is Bad for Patients,http://www.kevinmd.com/blog/2012/04/making-drugs-nonprescription-bad-patients.html[accessed Feb. 5, 2014]). Individuals may obtain prescriptions for such medications, evenif not required, for various reasons, including to obtain insurance coverage that may notapply to over-the-counter medications (see Tasha M. LaSpina et al., Access toContraception, 11 Geo J. Gender & L 371, 404 [2010] [noting that 1990amendments to the Medicaid Act permitted states to exclude coverage fornonprescription drugs]; see e.g. Cigna,http://www.cigna.com/pdf/839232_HCR_Preventive_ Care_V02.pdf [accessed Feb. 5,2014] [stating that "(f)or preventative medications (including over-the-countermedications) or products to be covered, you'll need to get a prescription from yourdoctor"]; Neighborhood Health Plan, https://www.nhp.org/member/benefits/pharmacy/pages/over-the-counter-drug-benefit.aspx [accessed Feb. 5,2014] [noting that participants must have a valid prescription to take advantage of theinsurance plan's over-the-counter drug benefit]), or to obtain reimbursement from apre-tax health savings account or flexible spending account (see 26 USC§§ 106 [f]; 223 [d] [2] [A]; 220 [d] [2] [A]; Internal [*3]Revenue Service, Affordable Care Act: Questions& Answers on Over-the-Counter Medicines and Drugs, http://www.irs.gov/uac/Affordable-Care-Act:-Questions-and-Answers-on-Over-the-Counter-Medicines-and-Drugs [accessed Feb. 5, 2014]; Insure.com, How do I get a "Prescription" for an over-the-counter drug in order to pay for it with myHSA?,http://www.insure.com/articles/healthinsurancefaq/health-insurance-prescriptions-over-the-counter-hsa.html [accessed Feb. 5, 2014]; Jerry Geisel, FSA Can't Reimburse OTCDrugs Without Prescription: IRS, Business Insurance [Sept. 7, 2010],http://www.businessinsurance.com/article/20100907/NEWS/100909937 [accessed Feb.5, 2014]). The People did not prove an element of criminal diversion of prescriptionmedications and prescriptions in the fourth degree—i.e., that the pills received bydefendant met the definition of a prescription medication (see Penal Law§ 178.00 [1]; People v Ross, 12 Misc 3d at 760-761). Accordingly,we must reverse the conviction for that crime and dismiss that count of theindictment.
The evidence was also not legally sufficient to support the official misconductcharge. "A public servant is guilty of official misconduct when, with intent to obtain abenefit or deprive another person of a benefit . . . [h]e [or she] commits anact relating to his [or her] office but constituting an unauthorized exercise of his [or her]official functions, knowing that such act is unauthorized" (Penal Law§ 195.00 [1]). The statute was "intended to encompass flagrant andintentional abuse of authority by those empowered to enforce the law" (People vFeerick, 93 NY2d 433, 445 [1999]). A conviction for official misconduct must besupported by proof that a defendant knew that his or her acts were unauthorized, so as to"negate[ ] the possibility that the misconduct was the product of inadvertence,incompetence, blunder, neglect or dereliction of duty, or any other act, no matter howegregious, that might more properly be considered in a disciplinary rather than a criminalforum" (id. at 448 [emphasis omitted]; compare People v Rossi, 69 AD2d778, 779 [1979], affd 50 NY2d 813 [1980]).
Defendant, employed as a police detective, was a public servant (see PenalLaw § 10.00 [15]). Considering defendant's statement to the pharmacist, thejury could infer that defendant intended to obtain a benefit—getting Jewett'sprescriptions filled more quickly—by flashing her badge and identifying herself asa police officer. In light of testimony that police officers are sometimes required toidentify themselves as such and show their badges, defendant's actions were related toher office as a police detective and to her official functions (see People v Moreno, 100AD3d 435, 437 [2012], lv denied 20 NY3d 987 [2012]; People vGray, 172 Misc 2d 14, 19-22 [1997]; compare People v Lucarelli, 300 AD2d1013, 1014 [2002]). A police officer's actions fall within his or her official functions"even if the right to perform [them] did not exist in the particular case" (People vChapman, 13 NY2d 97, 101 [1963]), such as when the officer was off-duty(compare People v Rossi, 69 AD2d at 779). The elements truly at issue here arewhether flashing a badge while off-duty to obtain faster service was an unauthorized actand, if so, whether defendant knew that such act was unauthorized.[FN2]
[*4] Defendant contends that official misconduct can onlybe substantiated where the public official violated a specific rule, regulation or policygoverning the official's position. While some official misconduct cases have involvedsuch violations (see e.g. Peoplev Gordon, 72 AD3d 841, 841-842 [2010], lv denied 15 NY3d 920[2010]; People v Haywood, 201 AD2d 871, 871 [1994]), many others do notcontain any specific rule violation (see e.g. People v Feerick, 93 NY2d at 448;People v Moreno, 100 AD3d at 437; People v Connolly, 63 AD3d 1703, 1704 [2009]). Nor doesthe plain language of the statute require violation of a specific rule or policy (seePenal Law § 195.00 [1]). Absent a formal rule, however, the conduct atissue must be such that a public officer should know that it "constitut[es] an unauthorizedexercise of his [or her] official functions" (Penal Law § 195.00 [1]).
Here, a captain with the City of Schenectady Police Department testified that adepartment rule required officers to identify themselves by name, rank and badge numberwhen requested. He testified that there was no policy that authorizes officers to showtheir badges when on personal matters, but further testified that there was no specific rulestating that officers were not authorized to identify themselves as such or display theirbadges in off-duty situations. The department rules, at least to the extent that they wereincluded in the record, are silent on this topic. Additionally, this is not a situation wheredefendant disobeyed the directions of a superior officer after being advised to proceed ina particular manner, which would support the allegations that the action wasunauthorized (compare People v Feerick, 93 NY2d at 448-449).
While it is inappropriate and unfair for a police officer to use his or her position toreceive faster service while on personal errands, the People did not present legallysufficient evidence to establish that defendant's actions in flashing her badge toencourage a pharmacist to fill Jewett's prescriptions faster constituted criminal conduct asopposed to professional misconduct, "no matter how egregious, that might more properlybe considered in a disciplinary rather than a criminal forum" (People v Feerick,93 NY2d at 448; see Penal Law § 195.00 [1]; compare People v Watson, 32AD3d 1199, 1202 [2006], lv denied 7 NY3d 929 [2006]; People vLucarelli, 300 AD2d at 1014; People v Maloney, 233 AD2d 681, 681-682[1996]). Accordingly, we reverse the conviction of official misconduct and dismiss thatcount of the indictment.
Based on our dismissal of both counts due to the lack of legally sufficient evidence,we need not address defendant's remaining contentions, although we note that reversalwould have been required based on the deluge of improper Molineux evidenceadmitted during trial (see Peoplev Buskey, 45 AD3d 1170, 1172-1174 [2007]; People v Wlasiuk, 32 AD3d674, 676-678 [2006], lv dismissed 7 NY3d 871 [2006]; People v Wallace, 31 AD3d1041, 1042-1045 [2006]; see also People v Wilkinson, 71 AD3d 249, 253-257[2010]).
Lahtinen, J.P., Garry and Egan Jr., JJ., concur. Ordered that the judgment is reversed,on the law, and indictment dismissed.
Footnote 1:The Legislature hassince amended Public Health Law § 3306 to classify Carisoprodol as anarcotic drug (see L 2012, ch 447, § 2, part C, § 12;Public Health Law § 3306 [IV] [c] [53]).
Footnote 2:The People contend thatthe act was unauthorized because it was in furtherance of a crime. We will not considerthis argument because, although defendant was indicted on a criminal diversion chargerelated to her actions on that date, she was not convicted of that count.