Court dismisses most charges against pharmacist in black-market HIV drug case 

A state appellate court this week dismissed most of the charges against a Babylon pharmacist convicted of selling black-market drugs to treat HIV.

The Appellate Division Second Department ruled that the state attorney general's office overreached in charging Ira Gross, 65, with first-degree grand larceny, first-degree criminal diversion of prescription medication, first-degree money laundering and related charges. Gross remains convicted of first-degree commercial bribery and second-degree money laundering, and remains in prison serving 2 to 6 years on those charges.

Gross and others were accused of diverting expensive HIV antiretroviral medications purchased off the street and selling them to the former MOMS Pharmacy in Melville. HIV is the virus that causes AIDS. MOMS Pharmacy then dispensed the diverted medications to thousands of its unsuspecting patients, many of whom were Medicaid recipients, throughout New York and other states, including Massachusetts, Florida and California, prosecutors said.

They argued that Gross was guilty of grand larceny because his actions defrauded the pharmacy of money by falsely saying the drugs were legal to sell. But the court, in a lengthy decision by Judge Sandra Sgroi, said that because one of Gross' conspirators was a top official at the pharmacy, the drugstore knew what it was selling and could not be seen as a victim.

All the counts that relied on a claim of theft from the pharmacy must therefore be dismissed, the court ruled.

The criminal diversion of prescription medication was dismissed for a different reason. This statute is intended to criminalize street sales of prescription drugs, not brokering black-market sales of medication from a wholesale company to a pharmacy, as Gross was accused of doing, Sgroi wrote.

If the State Legislature wants to make such activity illegal, it could pass a law doing so, Sgroi wrote. Until then, she wrote that it is improper to stretch the law to make it fit these actions.

Both the state attorney general's office and Gross' appellate attorney did not respond to requests for comment.