74 Misc. 2d 682 | N.Y. App. Term. | 1973
Defendant, a licensed physician, was convicted of 23 out of 29 counts of an indictment charging violations of sections 3305 and 3373 of the Public Health Law for unlawfully prescribing narcotic, stimulant and depressant drugs. On appeal, he contends that the verdict was inconsistent and repugnant, that the offenses charged were not crimes, that the statutes involved were constitutionally vague and that the charge to the jury was inadequate. We find no merit to any of these points.
Each count of an indictment is to be considered a separate crime and consistency is not required (Dunn v. United States, 284 U. S. 390; People v. O’Bryan, 36 A D 2d 548; People v. Delorio, 33 A D 2d 350; People ex rel. Troiani v. Fay, 13 A D 2d 999, cert. den. 368 U. S. 1003). A repugnant verdict is one where there has been a finding of guilt on one but not on the other of two crimes charged in an indictment, each of which has identical elements (People v. Pierce, 40 A D 2d 581; People v. Pugh, 36 A D 2d 845, affd. 29 N Y 2d 909, cert. den. 406 U. S. 921; People v. Bullis, 30 A D 2d 470). Although a repugnant verdict, as opposed to one which is merely inconsistent, cannot stand, repugnancy is not herein involved since the various counts do not have identical elements. Involved are different drugs, different dates and different individuals to whom the drugs were prescribed. The question of good faith in prescribing the drugs must be applied to each and every prescription, inasmuch as a physician, in good faith and in the course of his professional practice, may prescribe such drugs (Public Health Law, §§ 3330, 3385). Defendant, therefore, cannot avail himself of the theory of repugnancy to disturb the jury’s verdict. In any event, a review of the record indicates a rational basis for the conclusion reached by the jury.
The claim that the offenses charged were not crimes is predicated upon the facts that sections 3354 and 3393 of the Public Health Law as they existed at the time the offenses were committed, provided that punishment for violations of sections 3305 and 3373 were as provided for in the Penal Law, but the Penal Law failed to state any such punishment. Although punishment for violations of the Public Health Law was provided for in the Penal Law prior to its revision, the relevant sections were not reenacted. However, we do not believe that the failure to re-enact the relevant sections was an indication of the intent
We do not find the statutes to be constitutionally vague as urged by defendant. A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The test is whether a reasonable man subject to the statute would be informed of the nature of the offense prohibited and what is required of him. The warning must be unequivocal and this requirement does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding (Matter of Patricia A., 31 N Y 2d 83). There is no difficulty in a reasonable man determining whether his actions, as a physician, are done in good faith and in the course of his professional practice. The prohibited conduct is therefore clear and the statutes not vague.
In our opinion, the court gave an adequate definition of ‘ ‘ good faith ’ ’ and there could not have been any question in the minds of the jury as to the conduct sought to be prohibited.
The judgment of conviction should be affirmed.
Concur — Hogan, P. J., McCullough and Farley, JJ.
Judgment of conviction affirmed.
