(dissenting). I must respectfully dissent. In my opinion, the evidence presented as to the March 6, 2008 undercover incident is insufficient to establish that the defendant provided materially false information either as to the medication dispensed or as to the identity of the recipient of the medication. Hence, I believe the People failed to prove beyond reasonable doubt that the defendant committed fourth-degree health care fraud. For the reasons set forth below, that conviction should be reduced to health care fraud in the fifth degree, and the case remanded for resentencing.
Following a seven-month undercover investigation of the defendant Saleem Khan and his employer, NYC Pharmacy, the defendant was arrested. Subsequently, a grand jury indicted him on charges of third-degree grand larceny, fourth-degree health care fraud and second-degree criminal diversion of prescription medications, as well as four counts of fourth-degree criminal diversion of prescription medications.
At trial, testimony and evidence adduced the following relevant facts: that on three occasions during phase 1 of the *57investigation in November 2007 and February 2008, an undercover detective known only as Gomez requested the prescription drugs Amitriptyline and Clonidine from the defendant at the pharmacy. Gomez requested varying amounts of the drugs in exchange for cash, but without providing a prescription on any of the three occasions.
On two occasions, in return for cash, Gomez was given two types of pills in varying amounts: pink pills stamped “2105V” and orange pills stamped “129.” On the third occasion, Gomez testified to receiving a “small orange bottle of pills.” On each occasion, Gomez counted and vouchered the pills.
For phase 2 of the investigation, Gomez was provided wdth a Medicaid benefits card in the name of a fictitious woman, Ivonne Arroyo, and supplied with prescriptions for Arroyo signed by a doctor. On the next four visits to the pharmacy, Gomez handed the defendant the prescriptions and the Medicaid card, but asked instead to be given the same two drugs he had requested during phase 1 of the investigation.
On February 28, 2008, he presented a prescription for 30 20-milligram tablets of Zyprexa (an antipsychotic drug) for Arroyo. He told the defendant that Arroyo was his wife, that his wife was prescribed Zyprexa because “she’s crazy . . . they gave it to my wife and she’s not crazy.” Instead, Gomez asked for 40 pills each of the two drugs he had requested on his initial visits to the pharmacy. He told the defendant he had his wife’s Medicaid card, and defendant asked Gomez to sign a book on the counter and the back of the prescription. Gomez signed with Arroyo’s name. He was handed pills which he counted at the precinct. He testified that the 40 pills he was given looked like the orange pills stamped “129” that he had received on an earlier visit.
On March 6, 2008, Gomez returned to the pharmacy and handed the defendant a prescription for Arroyo for 30 tablets of 600-milligram Sustiva (an anti-retroviral medication for HIV). Again, he told the defendant he wanted “the usual pills.” The defendant handed Gomez a brown paper bag with an orange bottle labeled Sustiva 600 milligrams. The bottle contained 40 orange pills stamped “GG461.”
On April 2, 2008, Gomez brought three prescriptions for Arroyo into the pharmacy for 30 tablets of Epzicom, 120 300-milligram Prezista tablets and a 60-day supply of Advair. He asked the defendant for “40 of my pills.” He also asked the defendant for some Percocet painkillers for his cousin who had been in a motorcycle accident. The defendant told him he could *58not dispense Percocet because it was “not registered in the computer.” Gomez signed Arroyo’s name in the book on the counter and on the back of the prescriptions. The defendant handed him a bottle which contained 40 pink pills with “2105V” stamped on them.
On May 21, 2008, Gomez returned with two prescriptions. At trial, he could not recall what was ordered in the prescriptions, but he asked for the two usual drugs. The defendant told him that the prescriptions were “not properly registered in the computer” and that “the prescription has to be in the computer by the doctor in order to be dispensed,” otherwise he “could not bill Medicaid for the prescriptions.” However, the defendant sold him 60 pills for cash. Gomez testified that although he counted and vouchered all the pills he received on each visit to the pharmacy, he did not send any of them for laboratory analysis.
A second prosecution witness, a supervising investigator from the New York Office of the Inspector General, testified about a document from Medicaid’s electronic database which showed that, on the relevant dates, the pharmacy had billed Medicaid for five Arroyo prescriptions. Medicaid had approved and made payment in a total amount of $3,073.47: that is, $706.55 for Zyprexa; $519.04 for the 600-milligram tablets of Sustiva; and for three prescriptions on April 2, 2008, the amounts of $884.28 (Prezista), $812.89 (Epzicom) and $150.71 (Advair).
At the close of trial, defendant moved for a trial order of dismissal pursuant to GPL 290.10 on the grounds that the evidence was legally insufficient as to the charges of health care fraud and grand larceny, and that the prosecution had failed to prove the nature of the pills Gomez had received. The court reserved decision until after the jury verdict. The jury convicted the defendant of third-degree grand larceny, fourth-degree health care fraud, and five counts of fourth-degree criminal diversion of prescription medications.
Subsequently, the court dismissed all five counts of fourth-degree criminal diversion of prescription medications, holding that the evidence “falls short” of proving that the pills received by Gomez were prescription medications. (24 Misc 3d 1231 [A], 2009 NY Slip Op 51685[U], *10.) The court denied the defendant’s motion for dismissal of the counts relating to fourth-degree health care fraud and third-degree grand larceny. The court reasoned that “[t]he entire amount of this reimbursement was wrongfully and fraudulently obtained, since no medications *59were ever given to the 37-year old woman named in the five prescriptions.” (Id. at *6.)
On appeal, the defendant asserts that the court erred because the evidence was legally insufficient to establish grand larceny or the multiple elements that are required to be proven for a conviction for health care fraud in the fourth degree pursuant to Penal Law § 177.10. Specifically, the defendant asserts that the evidence was insufficient to prove, inter alia, that he made material false statements either as to the medications dispensed or as to the recipient of the medications.
For the reasons set forth below, I agree with the defendant to the extent that the evidence was insufficient as to the incident of March 6, 2008. Consequently, the People failed to establish the $3,000 value element of the fourth-degree health care fraud charge, and consequently the value element of third-degree grand larceny.
It is well established that in determining whether a jury verdict is supported by legally sufficient evidence, this Court must decide
“whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial. . . and as a matter of law satisfy the proof and burden requirements for every element of the crime charged.” (People v Bleakley, 69 NY2d 490, 495 [1987] [citations omitted].)
To establish fourth-degree health care fraud, the People must prove that the defendant,
“with intent to defraud a health plan . . . knowingly and willfully provide[d] materially false information . . . for the purpose of requesting payment from a health plan for a health care item or service and, as a result of such information . . . [the defendant] or another person receive [d] payment in an amount [to which the defendant or another was] not entitled,” and “the payment wrongfully received . . . from a single health plan, in a period of not more than one year, exceed[ed] [$3,000] in the aggregate.” (Penal Law §§ 177.05, 177.10.)
As a threshold matter, it is undisputed that none of the pills were sent for laboratory analysis at any time before or during *60trial. Further, that error was compounded by an inept prosecution. As the trial court pointed out, even though some of the pills were introduced into evidence, the People did not proffer any expert testimony that the pills were prescription medications. Moreover, although the lead investigator testified he was familiar with the two prescription medications requested by Gomez, he was never asked to identify the pills Gomez received; Gomez was not able to identify the pills and testified to nothing more than that all the pills he received looked alike even though he described one batch of pills as stamped with different lettering than that on the pills he received on any other occasion.
The People nevertheless argue that identifying the pills given to Gomez in the second phase of the investigation is not necessary. The People argue that since the pills were plainly not the prescribed medications, the element of material misinformation as to the medications dispensed is established.
I am persuaded by the argument to the extent that the pills supplied to Gomez on April 2, 2008, where the prescription called for an asthma inhaler, were plainly not the prescribed medication. Viewing the evidence in the light most favorable to the People, I am also inclined to agree that the People presented sufficient evidence for a jury to conclude that the pink and orange pills stamped “2105V” and “129” dispensed on February 28, 2008 and April 2, 2008 were pills of the same type that Gomez bought for cash when he first requested Amitriptyline and Clonidine. Not being able to identify them precisely does not preclude the permissible inference that, nevertheless, they were the “usual pills that [he] was getting in the past” and not the drugs ordered on the prescriptions that Gomez presented to the defendant on February 28, 2008 and April 2, 2008.
Therefore, I believe the People presented ample proof that the defendant complied with Gomez’s request for different medications than those set forth in the prescriptions the detective presented. Hence, there is sufficient evidence for finding that the defendant provided materially false information as to the dispensed medications on February 28 and April 2.
However, in my opinion, there is insufficient evidence for concluding that, on March 6, 2008, the defendant dispensed something other than Sustiva, the prescribed medication, or that he dispensed it knowing that Arroyo was not going to be the recipient. This was the second prescription handed to the defendant by Gomez. The first prescription was for an antipsychotic drug, and Gomez played out a scene, describing Arroyo as *61his wife and that she did not need the medication because she wasn’t crazy. So, Gomez had argued, the defendant could substitute his “usual pills that [he] was getting in the past.”
On March 6, 2008, when Gomez came into the pharmacy, he had a prescription for an anti-retroviral medication prescribed for HIV patients. This time when Gomez again asked for “the usual pills,” the defendant handed him pills stamped “GG461.” Even though at trial Gomez characterized the pills as “the Amitriptyline that I was getting in the past” the pills were clearly neither those stamped “2105V” nor “129.”
Thus, there is no basis for concluding that the medication handed to Gomez was not Sustiva. Indeed, the majority agrees. It states, albeit in a footnote, “There is no evidence, however, that orange pills marked ‘GG 461’ were not 600-milligram Sustiva pills.” In my opinion, the rational inference arising from the possibility that the pills could have been the prescribed Sustiva is that the defendant filled the prescription for the person for whom the Sustiva was prescribed, that is, Arroyo.
Moreover, there is no evidence that the defendant suspected or knew that Arroyo did not exist. Only Gomez and the investigators knew that Arroyo was a fictitious individual. Further, based on the explanations the defendant made to Gomez as to why he could not dispense Percocet, it is evident that the pharmacy used a system where legitimate prescriptions are entered by doctors into a computer database in order that they can be billed to Medicaid. Since Arroyo’s prescriptions evidently were entered in the computer, there was no basis for the defendant to believe that Arroyo was not a real patient, or that Gomez, who had never identified himself by name, or shown the defendant any identification, was not indeed her husband or boyfriend.
Consequently, the majority’s position that the defendant knowingly misidentified the recipient because “[he] knew that Ivonne Arroyo was not the recipient of the medications, but rather Gomez, who wanted the drugs to sell for a profit” is not supported by the evidence as to the March 6, 2008 incident. Such conclusion requires evidence that on March 6, 2008 the defendant gave Gomez the pills he asked for instead of dispensing the prescribed medication. This, however, as the majority clearly holds, is precisely the evidence that was not proffered. Hence, the element of “knowingly and willfully providing] materially false information” was not proved beyond a reasonable doubt.
*62Finally, in my opinion, the failure of the People to prove beyond a reasonable doubt that the defendant materially misinformed Medicaid either as to the drugs dispensed or as to the recipient of the medication on March 6, 2008 impacts the value elements of fourth-degree health care fraud and third-degree grand larceny. I would therefore vacate the larceny conviction, reduce the health care fraud conviction to fifth degree, and remand for resentencing.*
Tom, J.P, Andrias and Moskowitz, JJ., concur with Acosta, J.; Catterson, J., dissents in a separate opinion.
Judgment, Supreme Court, New York County, rendered July 17, 2009, affirmed.
The defendant was acquitted by a jury of the lesser included offense of grand larceny in the fourth degree.