Opinion
January 25, 1988
Appeal from the Supreme Court, Kings County (Owens, J.).
Ordered that the order is affirmed.
A verdict should be set aside when "the trial evidence is not legally sufficient to establish" an element or elements of the offense (CPL 290.10 [a]; People v Lynch, 116 A.D.2d 56, 62). Matters of credibility are reserved to the trier of fact and upon a review of the legal sufficiency of the evidence should be regarded as though resolved in favor of the People (see, People v Johnson, 65 N.Y.2d 556, 561, rearg denied 66 N.Y.2d 759, upon remittitur 115 A.D.2d 215, lv denied sub nom. People v Tyler, 67 N.Y.2d 658; People v Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932).
The essential elements of the crime of offering a false instrument for filing in the first degree (Penal Law § 175.35) are (1) knowledge that a written instrument contains a false statement or false information, (2) intent to defraud the State or any political subdivision thereof, and (3) offering or presenting such instrument to a public office or public servant with the knowledge or belief that it will be filed.
The People are required to offer evidence to establish each of those three elements beyond a reasonable doubt (cf., People v Bentley, 106 A.D.2d 825, 826; People v Chaitin, 94 A.D.2d 705, affd 61 N.Y.2d 683).
The defendant was a salaried pharmacist who on five separate occasions filled prescriptions calling for a name drug with its generic equivalent and attached the prescription to a blank Medicaid invoice.
There was no evidence, direct or circumstantial, that the defendant intended to defraud the State or that he prepared the instruments or that he offered or presented such instruments to a public official or public servant.
Absent any proof that the defendant individually had the intent to defraud the State, or was familiar with, or participated in the preparation and submission of the vouchers, it would be improper to infer such intent or knowledge from the fact that his employer pleaded guilty to the crime of offering a false instrument for filing.
The defendant's guilt of the crime cannot be premised solely on the fact that he initiated the false information. Such a hypothesis does not rule out any inference save that of guilt. Thompson, J.P., Brown, Spatt and Sullivan, JJ., concur.