I dissent. As regards respondent’s revocation of petitioner’s license to practice medicine and annulment of his registration as a physician, we are to measure the grade of the offense whereof he was convicted in the Federal court by the laws of our State. (Education Law, § 1264, subd. *541; § 1251.) His offense can only mean his commission or omission of an act or acts which under our statute constitutes unlawful conduct punishable as a crime. How what he did or omitted to do, may be graded or made punishable under the Federal statutes is irrelevant. .
The amended judgment of his conviction in the United States District Court definitely defines what his unlawful conduct was, viz.: “ 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.”
Thus the question arises whether under the laws of our State the act of a physician in unlawfully prescribing a narcotic drug is a felony or a misdemeanor. Note is to be taken that petitioner’s act was only that of prescribing and such was not performed in concert or conspiracy with any other person whereby the drug was sold or otherwise dispensed. In my opinion under the laws of New York State his offense was not a felony but a misdemeanor.
■Section 422 of the Public Health Law specifies a number of acts as unlawful. One such act is “to * * * sell,” another, “to * * # prescribe,” and still another is “to * * * dispense * * * any narcotic drug, except as authorized in this article.” (Article 22 — Uniform Narcotic Drug Act.) The act then provides its definition of the word “ sale ” by stating that, in addition to its common import, it “ includes barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, * * * agent, servant or employee.” (Public Health Law, § 421, subd. 10.) And it also, by subdivision 17 of séction 421 of the Public Health Law, defines the word, “ dispense ” by stating that it “ includes distribute, leave with, give away, dispose of, or deliver.” There is no statutory definition of the word “ prescribe ”. Then by section 444 of said Statute we are referred to the Penal Law for the grading of the acts thus made unlawful and as to the punishment, therefor. Penal Law, section 1751, provides that one “ * * * who shall peddle, sell, barter, or exchange any narcotic drug, as defined in section four hundred twenty-one of the public health law, in violation of article twenty-two of such law, shall be guilty of a felony *55* * Clearly the mere unlawful prescribing of such a drug is not there included, but the grade of such offense and its punishment are fixed by the following section (Penal Law, § 1751-a) as a misdemeanor.
People v. Gennaro (261 App. Div. 533, affd. 287 N. Y. 657), had to do with the gradation under the laws of New York State of defendant’s former conviction in the Federal court for selling heroin in that the drug he sold “ was not in the original stamped package or from the original stamped package ” in violation of former section 1043 of title 26 of the United States Code (see 1934 ed.). The classification of such former conviction was to determine defendant’s liability to increased punishment upon his second conviction in the Court of General Sessions of New York County, defendant’s contention being that since his conviction in the Federal court was merely an offense against the Revenue Laws it was not one which, if committed in this State, would be a felony. I fail to see how that case is controlling here because of the disparity of its facts and the contention arising therefrom.
Respondent’s order of April 26, 1945, revoking petitioner’s medical license and annulling his registration as" a physician should be vacated and annulled.
Hill, P. J., Fosteb and La whence, JJ., concur with Heefebnan, J.; Bbewsteb, J., dissents in an opinion.
Determination of respondent confirmed, without costs.