Prescription Fraud Defense in New York

Former Prosecutors, a Former Judge, & a Forensic Science Commissioner on Your Side

A prescription fraud charge in New York can move fast. Investigators pull pharmacy records, interview medical staff, and build a file before most people know they’re under scrutiny. At Barket Epstein Kearon Aldea & LoTurco, LLP, we defend clients against these charges in both state and federal court. Our team includes former prosecutors, a former Nassau County Court judge, and a founding partner who sits on the New York State Commission on Forensic Science. That background matters when the prosecution’s case rests on pharmacy records, forensic document analysis, or prescription monitoring data.

Our Garden City offices serve clients throughout Nassau and Suffolk Counties and across New York state.

Fraud & Deceit Related to Controlled Substances Under Penal Law §178.26

Penal Law §178.26 is one of the principal New York statutes that can apply to fraudulent prescription conduct.

It prohibits several forms of willful conduct involving controlled substances or prescriptions, including obtaining or attempting to obtain a controlled substance or prescription through fraud, deceit, misrepresentation, concealment of a material fact, a false name, or a false address.

The statute also addresses conduct such as:

• Making false statements in certain controlled-substance records
• Falsely representing oneself as an authorized professional for the purpose of obtaining controlled substances
• Making or uttering a false or forged prescription
• Possessing certain forged prescriptions or unauthorized blank New York prescription forms under circumstances that trigger statutory presumptions

Fraud and deceit related to controlled substances under §178.26 is a Class A misdemeanor.

A Class A misdemeanor can carry up to 364 days of incarceration under current New York law. A court can also impose a fine of up to $1,000. When money or property was gained through a misdemeanor, New York law separately allows an alternative fine based on up to twice the defendant's gain.

The specific sentence in any case depends on the charge, criminal history, available sentencing alternatives, and other circumstances.

What People Call “Doctor Shopping” Falls Within §178.26

Section 178.26 also addresses certain conduct during medical treatment.

A violation can occur when a person is supplied with a controlled substance or prescription by one practitioner and, with intent to deceive, intentionally withholds or fails to disclose that another practitioner has also supplied a controlled substance or prescription during that treatment.

The statute therefore focuses on intentional concealment and deceptive purpose.

Prescription histories can become important evidence in such an allegation, but a pattern appearing in records does not by itself answer every legal question. The defense may still examine the medical context, communications with providers, what information was disclosed, what the patient understood, and whether the prosecution can prove the required intent.

Forging a Prescription & Possessing One Are Different Offenses

New York's forgery statutes can also apply to prescription allegations.

Forgery in the Second Degree

Penal Law §170.10 covers falsely making, completing, or altering certain written instruments with intent to defraud, deceive, or injure another.

The statute specifically includes prescriptions issued by licensed physicians and other people authorized to prescribe drugs.

Forgery in the Second Degree is a Class D felony.

Criminal Possession of a Forged Instrument in the Second Degree

Section 170.25 addresses different conduct.

It applies when a person knowingly possesses or utters a qualifying forged instrument, including a forged prescription, with intent to defraud, deceive, or injure another.

It is also a Class D felony.

The difference between allegedly creating or altering a prescription and allegedly possessing or presenting one is therefore legally important.

A defense should begin with the precise offense charged rather than treating every forged-prescription allegation as the same crime.

Prescription Diversion Is Another Separate Category

Article 178 also contains offenses for criminal diversion of prescription medications and prescriptions.

A criminal diversion act generally involves specified transfers or receipts of prescription medication, devices, or prescriptions in exchange for something of pecuniary value.

The degree can depend on the value exchanged and, in one circumstance, prior diversion history:

• Fourth Degree, §178.10: A criminal diversion act, Class A misdemeanor
• Third Degree, §178.15: More than $1,000 in value, or certain repeat fourth-degree conduct, Class E felony
• Second Degree, §178.20: More than $3,000 in value, Class D felony
• First Degree, §178.25: More than $50,000 in value, Class C felony

That makes diversion different from a patient allegedly obtaining a controlled substance through deception under §178.26 and different again from possessing a forged prescription under §170.25.

Good-Faith Medical Treatment & Professional Practice

Article 178 contains important statutory limitations.

The article does not apply in the same manner to a duly licensed physician or other authorized prescriber acting in good faith in the lawful course of professional practice, or to a pharmacist acting in good faith in lawful pharmacy practice.

It also excludes a person acting in good faith while seeking treatment for a medical condition or helping another person obtain such treatment.

Whether that limitation applies depends on the actual conduct and circumstances.

For healthcare professionals, a criminal investigation may also raise separate questions involving professional discipline, prescribing rules, pharmacy regulation, or controlled-substance compliance. Those issues should not be assumed from the criminal charge alone, but they can matter when evaluating the broader consequences of a case.

Prescription Records & PMP Data Can Become Evidence

New York maintains a statewide Prescription Monitoring Program through the Department of Health's Bureau of Narcotic Enforcement.

The PMP includes reported controlled-substance dispensing information and allows authorized practitioners to review prescription histories. Most prescribers are required to consult the registry before issuing Schedule II, III, or IV controlled-substance prescriptions, subject to statutory and regulatory exceptions.

Prescription-related investigations may therefore involve evidence such as:

• Pharmacy dispensing records
• Prescriber and patient records
• PMP data
• Electronic prescription information
• Prescription forms
• Communications among patients, providers, and pharmacies
• Insurance or payment records
• Witness interviews

The existence of a record is not the same as proof of criminal intent.

The defense may examine whether the records are complete, what they actually show, whether identities were correctly attributed, whether the medical context supports an innocent explanation, and whether law enforcement obtained evidence lawfully.

When scientific laboratory evidence is involved, the firm's broader forensic-science experience can also become relevant. Steven B. Epstein serves on the New York State Commission on Forensic Science, which addresses matters including forensic laboratory standards and accreditation.