People State New York v. Philip Weinfeld

Order unanimously reversed, on the law, and indictment reinstated. Memorandum: As an expert in the field of podiatry, the Peoples expert was qualified to give testimony as to the time sequence involved in the progress and repetitiveness of ingrown toenails. He eliminated the possibility of their recurrence and presence at such intervals as the defendants various claims represented, following his own examination of the patients on June 2, 1975. A treatment necessarily requires a condition to be treated and the absence of such a condition, in this case ingrown toenails, established the false and fraudulent character of defendants representations as made in his claims for treatment. As to the charges of violation of section 175.35 of the Penal Law, the proof before the Grand Jury is sufficient to establish that the defendant, knowing that written instruments executed by him contained false statements, with intent to defraud a political subdivision of the State, presented the instruments to the Department of Social Services with the knowledge and belief that they would become a part of the records of such department (Counts Nos. 2 through 52, even numbers only). The claims for services submitted to the Department of Social Services were demands directed to a county agency for the payment of money representing obligations alleged to be owing defendant by the county, on official forms provided by the county for such purpose, and certified as to the truth and accuracy and as to compliance with statutory fee schedules by defendant. As such they evidenced the legal rights and duties of the parties in that defendant was required to document and certify that he had rendered the services specified and was then entitled to be paid by the county, which in turn placed reliance upon the truthfulness of the certified claims in acting upon and discharging its responsibility and obligation. The claims for services (Form 243-a) were similar in character and served the same function as State vouchers which were held in People v Bel Air Equip. Corp. (39 N.Y.2d 48) to be instruments as that term is utilized in section 175.35 of the Penal Law (see, also, People v Seymour, 55 A.D.2d 737). Likewise, applying the same rationale to the counts charging falsifying business records in the first degree (Penal Law, §§ 175.10, 175.05, subd 1), the proof establishes that defendant with intent to defraud made or completed a false entry in the business records of an enterprise, the Department of Social Services (Counts Nos. 1 through 51, odd numbers only) and Blue Shield of Western New York, Inc. (Counts Nos. 57 through 87), and that his intent to defraud included another crime, to wit: larceny. The claims submitted to Social Services and Blue Shield were made on forms provided by them and certified as required by them and evidenced and were [65 A.D.2d 911 Page 912]