Tonis v. Board of Regents , 58 N.Y.S.2d 766 ( 1945 )

Heffernan, J.

This proceeding under article 78 of the Civil Practice Act is brought to review a final determination of the Board of Regents, executed on their behalf by the Commissioner of Education, revoking, annulling and canceling the petitioner’s license to practice medicine and annulling and canceling of record his registration or registrations as a physician, in accordance with the provisions of subdivision 1 of section 1264 of the Education Law.

On December 5, 1944, petitioner, a physician, entered a plea of guilty to two counts of an indictment in the United States District Court for the Southern District of New York, for violation of the provisions of section 2554 of the Internal Revenue Code (U. S. Code, tit. 26, § 2554). The certificate of conviction describes the crime as “ unlawful sales of morphine sulphate ” and states that the petitioner was sentenced to one year and one day on each count, to run concurrently. The execution of the sentence was suspended and the petitioner was-placed on probation for a period of two years. He was also fined $500 to cover the two counts.

In the first count of the indictment petitioner was charged with the unlawful sale on October 29, 1942, of twenty one-quarter grain tablets of a narcotic drug containing morphine sulphate, a derivative and preparation of opium, to one John Port. The second count charges a sale of the same drug, in the same quantity, also to John Port, on November 2, 1942. Both counts are alleged as violations of section 2554 of the Internal Revenue Code.

On December 27, 1944, the State Department of Education advised petitioner that his license to practice medicine was subject to revocation because the offense to which he plead guilty is a felony. His contention is that his crime is a misdemeanor and that the record in the District Court is erroneous. On January 9, 1945, petitioner moved before the District Court to amend the judgment of conviction so as to specify the exact alleged unlawful acts with which he was charged and to which he plead guilty. The court granted the motion and amended the judgment by adding thereto the following statement: “ The sales charged in the Indictment in counts 1 & 2 consisted of the following as a matter of fact: that on two different occasions defendant, a licensed physician, did, for a consideration, issue an order or prescription for morphine sulphate not'in the regular course of his practice but to an addict for a prohibited use, although the prescription was filled by a druggist who acted in good faith without knowledge that the prescription was unlawfully issued.”

In the amended judgment the designation of the crime remains “ unlawful sales of morphine sulphate ” and no change was made in the sentence originally imposed.

After the amendment of the judgment the respondent adhered to its prior position that petitioner was guilty of a felony and the order of revocation followed.

Section 1264 of the Education Law provides: “ 1. Whenever any practitioner of medicine shall be convicted of a felony, as defined in section twelve hundred and fifty-one of this article, the registration of the person so convicted may be annulled and his-license revoked by the department.”

“ 1251. Qualifications. * * * The conviction of felony shall be the conviction of any offense which if committed within the state of New York would constitute a felony under the laws thereof. ’ ’

Pertinent provisions of the United States Internal Revenue Code are:

“ Sec. 2554. Order forms.

“ (a) General requirement.— It shall be unlawful for any person to sell, barter, exchange or give away any of the drugs mentioned in section 2550(a) except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary.”

The drugs mentioned in subdivision (a) of section 2550 of the Code are: “ opium, coca leaves, any compound, salt, derivative, or preparation thereof ”.

“ § 2557. Penalties. * * *

“ (b) Violations in General.—

“ (1) Any person who violates or fails to comply with any of the requirements of this subchapter or part V of subchapter A of chapter 27, shall, on conviction, be fined not more than $2,000 or be imprisoned not more than five years, or both, in the discretion of the court.”

The United States Criminal Code (Code, § 335; U. S. Code, tit. 18, § 541) provides that all offenses which may be punished by death or imprisonment for a term exceeding one year shall be deemed felonies.

Petitioner’s contention in this proceeding is that the illegal acts upon which his indictment and conviction in the Federal court were founded do not constitute a felony under the laws of this State. That contention is without merit. The crime to which he plead guilty is a felony under the laws of the national and State governments (Jin Fuey Moy v. United States, 254 U. S. 189; Manning v. United States, 31 F. 2d 911; Nigro v. United States, 117 F. 2d 624; United States v. Abdallah, 149 F. 2d 219; People v. Gennaro, 261 App. Div. 533, affd. 287 N. Y. 657; see, also, Public Health Law, §§ 421, 422, 427, 444; Penal Law, §§ 2,1751).

Petitioner’s crime was completed when he unlawfully issued the prescription. The issuance of the prescription constitutes a sale within the meaning of the statutes to which we have referred as interpreted by the authorities which we- have cited.

The determination of the respondent should be confirmed, but without costs.