Authorities aim to close legal loophole weakening drug prosecutions

Narcotics dealers selling chemically altered mixtures that contain the powerful synthetic opioid fentanyl can face weaker punishments because of a loophole in state law that exempts certain drug mixes from being illegal controlled substances.

The mixtures, called analogs, appear identical to the pure white powder that is fentanyl, but chemists in illegal labs in China — the main supplier of the drug to the United States — change the chemical structure to avoid law enforcement detection and prosecution of distributors, authorities said.

New York’s public health law recognizes fentanyl and a limited number of analogs as controlled substances, allowing prosecutors to lodge top felony drug charges. But many more analogs are not on the state’s list of illegal controlled substances.

“It’s a way to skirt the law,” said Suffolk County Police Chief of Detectives Gerard Gigante. “It reduces the criminal penalty significantly, and if you’re an educated dealer and have the assets to go out and buy that kind of quantity and have it shipped, then you can make a lot of money and have less exposure to the law.”

The fentanyl analog issue is emerging as officials try to stem an opioid painkiller and heroin epidemic that killed more than 550 people on Long Island in 2016 through fatal overdoses, according to records by the medical examiners for Nassau and Suffolk counties.

Gigante estimated that 50 percent to 80 percent of the department’s 30 average weekly opioid drug arrests involve fentanyl analogs and are not prosecutable. Other narcotics detected in the mixtures usually warrant lesser felony charges.

Of the 235 deaths attributed to opiate overdoses this year through Nov. 1 in Suffolk, 182 — or 81 percent — were fentanyl or fentanyl mixes, according to data from the county medical examiner’s office. The classification of another 157 likely overdose deaths are pending and waiting toxicology reports.

Gov. Andrew M. Cuomo plans to introduce state legislation in January that would recognize 11 fentanyl analogs as illegal controlled substances — which in certain quantities can merit top felony charges and significant prison time.

Cuomo’s proposal would give the New York health commissioner authority to add to the state list any new drugs that are added to the federal schedule.

Authorities say the state needs to move quickly to save lives.

“We’re hopeful that the state is able to change the law and catch up, but right now the drug dealers, at times, have an advantage,” Gigante said.

James Hunt, special agent in charge at the U.S. Drug Enforcement Administration’s New York office, said analogs are as deadly as pure fentanyl.

“It solves a problem of prosecuting them, but it obviously doesn’t solve the addiction problem and all the people that are hooked on this stuff now,” Hunt said of closing the legal loophole.

Fentanyl is currently listed as a schedule II drug under state law, which makes it a crime to use it without a prescription and a felony to sell it illegally. Labeling fentanyl and its derivatives as schedule I would put it on the same level as heroin, and bring tougher penalties.

The legislation would also give the state health commissioner authority to add to the state list any new drugs that are added to the federal list.

Fentanyl, which comes in forms including liquid, powder or a pressed pill, is 50 to 100 times more potent than morphine. A typical analog has a single molecule difference from pure fentanyl, but retains its effect.

In Nassau County, Deputy Insp. Christopher Ferro, commanding officer of the Narcotics Vice Squad, said the fentanyl analogs that police have found are all illegal under state law, so they haven’t had to downgrade any charges.

In Sept. 2016, felony drug charges were dropped against six people accused of running a fentanyl mill in upstate Onondaga County, outside Syracuse, when lab tests identified the substance as an analog not listed on the state schedule, according to news reports.

The U.S. Drug Enforcement Administration has recently classified all fentanyl analogs as controlled substances on an emergency basis, citing overseas labs and domestic distributors who evade laws to create derivatives of fentanyl not explicitly included in the federal Controlled Substances Act.

In October, the U.S. Justice Department announced the first-ever indictments of suspected Chinese manufacturers of fentanyl, fentanyl analogs and other opioids. One of the suspects, identified by authorities as Xiaobing Yan, 40, was indicted in the Southern District of Mississippi on two counts of conspiracy to manufacture and distribute multiple controlled substances, including fentanyl and fentanyl analogs, and seven counts of manufacturing and distributing the drugs.

Yan, who faces up to 20 years in prison, is not in custody and believed to be in China, officials said.

Authorities said over a period of at least six years he operated websites selling acetyl fentanyl and other analogs to online customers across the United States. And according to the Justice Department, Yan monitored law enforcement in an effort to modify the chemical structure of the fentanyl analogs in order to evade prosecution in the U.S.

Suffolk District Attorney-elect Timothy Sini, a former federal prosecutor who’s been police commissioner for the last two years, said the state should continue to add substances to the law, but should emulate the federal rules to provide a catchall for all analogs.

“Essentially if you can prove that the drug is substantially similar in molecular structure and it’s being sold for the same intended effect as the banned substance, then you can treat it as that substance,” Sini said.

Fentanyl, a man-made substance first used as a cheaper and more potent cutting agent for heroin, has increased its footprint on Long Island and in the United States as dealers have sought to increase profits. A kilogram of heroin, derived from the poppy seed commonly found in Afghanistan, is typically packed as a brick and costs about $60,000, Gigante said. That same amount of fentanyl costs $8,000.

Dr. Michael Caplan, Suffolk County’s chief medical examiner, who oversees the county’s crime laboratory, said the lab is prohibited from testing for analogs not recognized by the state.

“Sometimes our analysis reveals that there is a compound very close to fentanyl or a listed fentanyl analog, but because it is not the exact molecular structure of a listed controlled substance under New York State law it cannot be listed in our reports,” Caplan wrote in an email. “It is routine in such a case for the Suffolk County Crime Laboratory to recommend verbally to the investigating agency to pursue additional testing on the substance.”

Caplan said a change to state law that would designate any fentanyl analog as an illegal controlled substance would be “ideal because of the infinite potential manipulations that can be done to the molecular structure of analogs.”

The issue of fentanyl analogs was recently at the center of a much-disputed drug case between police and prosecutors in Suffolk.

Suffolk prosecutors recently dropped felony drug possession charges against a Mastic Beach man who police said had more than a million doses of fentanyl mailed to him from China, after the Suffolk crime lab determined the drug was not fentanyl. Prosecutors days later rearrested the man on lesser charges after another lab test found a controlled substance that warranted a fifth-degree possession charge.

By Nicole Fuller

nicole.fuller@newsday.com@NicoleFuller

Nicole Fuller is Newsday's senior criminal justice reporter. She began working at Newsday in 2012 and previously covered local government.