
    [667 NE2d 320, 644 NYS2d 670]
    The People of the State of New York, Respondent, v Robert McDonald, Appellant. The People of the State of New York, Respondent, v Emilia Strogov, Appellant.
    Argued March 28, 1996;
    decided April 30, 1996
    
      POINTS OF COUNSEL
    
      T. Kevin Murtha & Associates, P. C., Roslyn (Joseph Madsen of counsel), for appellant in the first above-entitled action.
    I. Appellant was not charged with any crimes relating to treatment of patients nor was he charged with defrauding or misleading poor patients by distributing sneakers and radios to them. However, the trial court permitted such evidence on the direct case against appellant and denied the application to strike said evidence from the record. The Court below should have reversed appellant’s conviction. Appellant was denied his due process right to a fair trial. (People v Ventimiglia, 52 NY2d 350; People v Till, 201 AD2d 43; People v Celestino, 201 AD2d 91; People v Alvino, 71 NY2d 233; People v Fiore, 34 NY2d 81; People v Liller, 20 NY2d 727; People v McKinney, 24 NY2d 180; People v Heath, 175 AD2d 562; People v Ragusa, 62 AD2d 1004; People v Lizzarra, 70 AD2d 572.) II. Appellant was denied his constitutional right to a fair trial: although appellant was not charged with any offense relating to the quality of care, treatment of patients and usefulness of the prescribed foot appliances, the court constructively amended the indictment and permitted the jury to consider such evidence against appellant. (People v Rubin, 101 AD2d 71; People v Perez, 83 NY2d 269; People v Boyd, 59 AD2d 558; People v Grega, 72 NY2d 489; Russell v United States, 369 US 749.) III. The trial court erred in its jury charge relating to reasonable doubt, proof of each element of crime, specific intent, burden of proof and interested witness which was fundamentally defective. Charging that the jury’s job is to make a unanimous finding if possible as to the guilt or innocence of appellant warrants a reversal of the conviction. (People v Wade, 99 AD2d 474; People v Johnson, 46 AD2d 123, 39 NY2d 364; People v Delesline, 68 AD2d 815; People v Ingram, 49 AD2d 865; People v Allah, 47 AD2d 738.) IV. The Medicaid Provider Manual code 90473 does not state that a plaster cast is required to make and manufacture a custom device and bill $46. Codes 90473 and 90477 of the Medicaid Manual concerning the utilization of a plaster cast for measurement of a patient’s feet is unconstitutionally vague. Prosecuting appellant under codes 90473 and 90477 for not measuring a patient’s feet with a plaster cast is unconstitutional. The Court below should have reversed the convictions and dismissed the action since according to the laboratory witness presented by the prosecution against appellant, appellant provided a custom foot appliance to his patients manufactured by Lauren Laboratories. (People v Feldman, 204 AD2d 347; People v Donaldson, 181 AD2d 948; People v Rubin, 101 AD2d 71; People v Fischman, 191 AD2d 841, 81 NY2d 1013.) V. Appellant’s conviction should be reversed due to prosecutorial misconduct relating to evidence that appellant acted in concert and resulting in a constructive amendment of the indictment. (People v Perez, 83 NY2d 269.) VI. The Court below should have reversed appellant’s conviction for grand larceny in the second degree given the failure of the People to prove that appellant was paid in excess of $50,000 to which he was not entitled under count one of the indictment. (People v Rubin, 101 AD2d 71; People v Hunter, 34 NY2d 432; People v Gross, 51 AD2d 191.)
    
      Dennis C. Vacco, Attorney-General, New York City (Arthur G. Weinstein and Bonnie H. Stein of counsel), for respondent in the first above-entitled action.
    I. The evidence established that appellant knowingly submitted over $58,000 in fraudulent claims. (People v Two Wheel Corp., 71 NY2d 693; People v Nelson, 69 NY2d 302; People v Bright, 71 NY2d 376; People v Yonkers Contr. Co., 17 NY2d 322; People v Feldman, 204 AD2d 347; People v Donaldson, 181 AD2d 948; People v Fischman, 191 AD2d 841, 81 NY2d 1013; People v Gray, 86 NY2d 10.) II. The evidence properly showed the scheme, its execution and its consequences. (Pontius v People, 82 NY 339; People v Rivera, 84 NY2d 766; People v Guidice, 83 NY2d 630; People v Molineux, 168 NY 264; People v Ventimiglia, 52 NY2d 350; People v Allweiss, 48 NY2d 40; People v Knowlin, 162 AD2d 333, 76 NY2d 941; People v Till, 201 AD2d 43; People v Kocyla, 167 AD2d 938.) III. The jury instructions were correct. (Huffman v United States, 297 F2d 754; People v Powell, 22 AD2d 959.)
    
      Vivian Shevitz, Mt. Kisco, Carol E. Gette and Jane Simkin Smith for appellant in the second above-entitled action.
    I. The prosecution misled the lower courts into finding that Medicaid fee code 90473 unambiguously required the use of a plaster cast, which it previously conceded was not so, and that the code was so clear that its mere use provided evidence of criminal intent. There was insufficient evidence as a matter of law to prove that defendant knowingly and intentionally committed grand larceny simply by using that billing code when no plaster cast had been made. (People v Rubin, 101 AD2d 71; People v Feldman, 204 AD2d 347.) II. The prosecutor violated Rosario by refusing to turn over the prior testimony of Joseph Guy. (People v Rosario, 9 NY2d 286; People v Consolazio, 40 NY2d 446; People v Jackson, 78 NY2d 638; People v Banch, 80 NY2d 610; People v Ranghelle, 69 NY2d 56; People v Poole, 48 NY2d 144; People v Perez, 65 NY2d 154; People v Fridman, 162 AD2d 136.) III. There was a failure of proof that the charged conduct continued into the "limitations period”; the prosecution was time-barred. IV. Appellant is entitled to a new trial because of her counsel’s conflicted representation, in violation of her constitutional rights to the effective representation of counsel. (People v Flores, 84 NY2d 184; People v Alicea, 61 NY2d 23; United States v Arrington, 867 F2d 122; People v Cade, 73 NY2d 904; Ciak v United States, 59 F3d 296.) V. The prosecution’s false depiction of appellant as a Medicaid abuser, when his own records showed she had been cleared in a civil audit of those charges, deprived appellant of a fair trial.
    
      Dennis C. Vacco, Attorney-General, New York City (Arthur G. Weinstein, Donald H. Zuckerman and Michael R. Berlowitz of counsel), for respondent in the second above-entitled action.
    I. The evidence was legally sufficient; the credibility of a witness is not properly before this Court. (People v Santos, 86 NY2d 869; People v Gray, 86 NY2d 10; People v Rubin, 101 AD2d 71; People v Feldman, 204 AD2d 347; People v Donaldson, 181 AD2d 948; People v Fischman, 191 AD2d 841, 81 NY2d 1013.) II. The theft, which continued through March 1988, was prosecuted timely. (People v Eastern Ambulance Serv., 106 AD2d 867; People v Alamo, 34 NY2d 453.) III. Rosario does not require the People to "disclose” transcripts on file with appellate courts, especially where the testimony concerns a general area such as the Medicaid system rather than any persons or events at issue. (People v Rosario, 9 NY2d 286, 368 US 866; People v Ranghelle, 69 NY2d 56; People v Washington, 86 NY2d 189; People v Fishman, 72 NY2d 884; People v Baghai-Kermani, 84 NY2d 525; People v Rosich, 170 AD2d 703; People v Banch, 80 NY2d 610; Jencks v United States, 353 US 657.) IV. Defense counsel was neither conflicted nor ineffective. (People v Baldi, 54 NY2d 137; People v Schwartzman, 24 NY2d 241.) V. There was no prosecutorial misconduct.
    
      Feldman & Kieffer, LLP, Buffalo (Andrew Feldman of counsel), for New York State Podiatric Medicine Association, amicus curiae in the first and second above-entitled actions.
    I. The mere billing of $46 to Medicaid for custom-made orthotics fabricated from 2-D imprint techniques does not, without more, demonstrate the requisite intent to defraud. (People v Levan, 295 NY 26; People v Ward, 120 AD2d 758; People ex rel. Perkins v Moss, 187 NY 410; People v Laurence, 137 NY 517; McCourt v People, 64 NY 583; Wilson v People, 39 NY 459; Marcus v Fidelity & Deposit Co., 164 App Div 859; People v Shears, 158 App Div 577, 209 NY 610; People v Ghiggeri, 138 App Div 807; People v Kenney, 135 App Div 380.) II. Standard and accepted practice in podiatric medicine during the prosecution period included creating prescriptions by 2-D imprint techniques to fabricate custom-made orthotics. III. The Department of Social Services never clarified the meaning of the parenthetical expression "casting and fabrication” even when it became apparent that there was confusion among practitioners and other State departments administering the Medicaid program.
   OPINION OF THE COURT

Levine, J.

Following a jury trial, defendant McDonald, a podiatrist enrolled as a participating provider in the New York Medical Assistance Program, was convicted of one count of second degree grand larceny (Penal Law § 155.40) and six counts of offering a false instrument for filing in the first degree (Penal Law § 175.35). In an unrelated bench trial, defendant Strogov, also a participating podiatrist, was convicted of second degree grand larceny. The basis for these convictions was defendants’ submission of claims to the Medicaid program for custom-made orthotics "cast and fabricated” to the patients’ feet with the knowledge that they had not in fact provided such appliances to these patients. The Appellate Division affirmed each convictian, holding that the language of the applicable Medicaid billing code unambiguously provided notice that the creation of a three-dimensional cast of the patient’s feet was required to seek reimbursement under this code (People v McDonald, 215 AD2d 504; People v Strogov, 216 AD2d 424). We agree and, because none of the remaining assignments of error requires reversal, we now affirm.

The New York Medical Assistance Program provides eligible persons with financial assistance for medical care and treatment. Participating physicians submit claims for reimbursement of services provided to program recipients according to the fee schedule contained in the local Department of Social Services Medicaid Provider Manual. The local provider manual must be consistent with the medical services and reimbursement caps prescribed by the State Department of Social Services (see, 18 NYCRR 538.1). At issue in these appeals is the Kings County billing code 90473 (item P602 in the State podiatry fee schedule) which provides:

"Foot mold, balance inlay support (casting and fabrication) per pair, to include all necessary fittings and adjustments.”

The maximum reimbursable rate under this billing code is $46.

Defendants were prosecuted for larcenies emanating from the submission of claims under billing code 90473 for orthotics they dispensed without making a cast or mold of the patient’s feet. According to the trial evidence, the orthotics that defendants McDonald and Strogov billed under this code were ordered by sending either a tracing of the outline of the patient’s feet or a pressure imprint obtained by coating the feet with a solution that interacted with specialized paper to indicate the patient’s weight-bearing and pressure areas, with or without additional prescriptive information, to a laboratory that provided prefabricated stock orthotics.

Defendants do not refute that these two-dimensional measurement techniques were used. They argue instead that the billing code phrase "casting and fabrication” is ambiguous, that the code does not require the creation of a three-dimensional cast or mold, and that the use of a tracing or footprint, in conjunction with additional descriptive information about the patient, provides sufficient information to enable an orthotic manufacturer to create a custom-made orthotic. They thus contend that their use of alternative methods of measurement for orthotics billed under this code does not constitute the crime of larceny as a matter of law.

At both trials, however, expert evidence was presented that the term "casting” has a universally recognized meaning within the podiatric profession: creating a three-dimensional cast or mold which captures the true architecture of the patient’s foot and is then used to create a positive mold which forms the model for the custom-made orthotic. The experts explained that a two-dimensional outline or footprint does not constitute a cast that will conform to the actual shape of the patient’s foot, and thus, such measuring methods cannot be used to create a custom-made orthotic. Accordingly, contrary to defendants’ argument on appeal, the evidence established that code 90473 is not ambiguous and sufficiently conveyed to podiatrists the requirement to use a casting technique that will create a three-dimensional mold of the foot.

As the podiatry fee schedule is intended for use by members of the podiatric profession, the use of technical terms recognized by the profession to describe the scope of permissible work that can be billed under code 90473 provides an explicit and nonarbitrary standard for enforcement of proper Medicaid billing practices and imposing criminal responsibility for flagrant violations thereof. Moreover, because the professionally defined meaning of casting excludes the use of foot tracings or footprints, defendants’ limited rebuttal evidence was insufficient to demonstrate an ambiguity in the billing code or prove that their conduct constituted lawful and noncriminal billing practices.

Defendants alternatively argue that there was legally insufficient evidence that their submission of claims under code 90473 was done with larcenous intent. They contend that because the term casting is ambiguous, the mere act of submitting claims under code 90473 without the creation of a cast or mold does not provide circumstantial evidence of intent to defraud and that, as a consequence, the evidence of criminal intent was legally insufficient. Because we have already concluded that the terms "casting and fabrication” in code 90473 unambiguously require the creation of a cast or positive mold, we reject defendants’ argument that billing for an orthotic made from a tracing or footprint does not constitute circumstantial evidence of larcenous intent.

Moreover, in each of these cases there was additional evidence that defendants intentionally sought reimbursement for a medical service that they did not provide. Defendant McDonald’s former professional partner testified that he agreed with the experts’ definition of casting and that he and defendant purposefully billed Medicaid for custom-made orthotics, which are ordinarily made from casts, when in fact they had dispensed prefabricated devices ordered from mere tracings. This witness also testified that at the suggestion of defendant the partners began using a billing code with a lower reimbursement rate for some of the orthotics normally billed under code 90473 to avoid the appearance of an improper pattern of billing.

As to defendant Strogov, there was evidence that although she ordered prefabricated stock items from tracings and footprints, she instructed an intern to misrepresent the measuring techniques on each Medicaid patient chart as C-F-D, that is, cast, fabricate and dispense. Thus, in each case, the evidence was legally sufficient to support the fact finder’s conclusion that defendants’ improper billing was done with criminal intent.

We have considered defendants’ remaining contentions and conclude that they are either unpreserved or without merit.

Accordingly, in each case the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Ciparick concur.

In each case: Order affirmed.  