The Attorney General sought to bring criminal fraud and larceny charges before a grand jury. In May 1998, plaintiffs commenced this civil action for declaratory and injunctive relief alleging its contract with Ulster County precluded the Attorney General from replacing the reimbursement rate contained in its contract with a “public charge” rate. The action also sought to enjoin the Attorney General from enforcing the regulation, from demanding the payment of any sums based upon it and from imposing any criminal or civil liability upon the plaintiffs based upon said regulation.

Supreme Court denied plaintiffs' motion for summary judgment in its entirety. The Appellate Division reversed, determining that the regulation was facially invalid because the terms “general public” and “rate” were not defined and no standards for their application were established (268 2 59, 66). Following an award of attorneys' fees at Supreme Court, the Attorney General appealed to this Court from the judgment of Supreme Court pursuant to CPLR 5601(d) . We now reverse.

Before this Court, the Attorney General contends that the Appellate Division erred by permitting a facial challenge rather than requiring plaintiffs to demonstrate that they could not understand the regulation and by granting summary judgment on the limited record before it.

A statute, or a regulation, is “unconstitutionally vague if it fails to provide a person of ordinary intelligence with a reasonable opportunity to know what is prohibited, and it is written in a manner that permits or encourages arbitrary or discriminatory enforcement” (People v Foley, , 94 NY2d 668, 681; People v Nelson, , 69 NY2d 302). Neither the term “general public” nor “rate” as used in the regulation is so vague that it could not be understood by a person of ordinary intelligence or could be arbitrarily enforced. The challenged language has a common understanding and is used in other State Medicaid and Medicare regulations (see, e.g., 8 NYCRR 247.15[c][1]; 10 NYCRR 86-1.21[d]; 18 NYCRR 415.69[e][2]; see also, 38 CFR 17.55[h][Federal regulations of medical use of hospitals by veterans]; 42 CFR 413.9[a] [Federal regulation of cost reimbursement to providers in the Medicare program]). The limited application of this regulation to home personal care providers who elect to enroll in the Medicaid program and who expressly agree to adhere to its rules, coupled with the ample opportunity these providers had to understand the requirements of the Medicaid program, are further reasons to reject the argument that the public charge provision is impermissibly vague. Plaintiffs should have been required to show that the regulation was unconstitutional as applied to them. When a person's conduct falls within the proscriptions of a regulation, “a vagueness challenge must be addressed to the facts before the court” (Nelson, supra, 69 NY2d, at 308); (see also, People v Rubin,___NY2d___ [decided today]).

Moreover, plaintiffs were not subject to prosecution because they allegedly violated the public charge regulation. Rather, the intended charges were grand larceny and offering false instruments for filing. The alleged violation of the regulation was only an element of proof of these crimes and violation of the regulation alone, without a knowing attempt to deceive or defraud, could not support criminal liability (see, United States v Larm, 824 F2d 780 [9^th Cir] [once a trier of fact determines that a person understood a regulation when it was allegedly violated, a subsequent challenge to the regulation for ambiguity is irrelevant so long as the person is actually convicted of violating a statute that provides adequate notice of the conduct proscribed]). On this separate basis, it was error to enjoin plaintiffs' criminal prosecutions (see also, Bryson v United States, 396 US 64, 68 [in a proceeding to vacate defendant's conviction based on a statute that was repealed following his conviction, the Court stated that “a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit. One who elects such a course as a means of self-help may not escape the consequences by urging that his conduct be excused because the statute which he sought to evade is unconstitutional”]).

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed with costs and the case remitted to Supreme Court for further proceedings in accordance with this opinion.