Opinion
125
June 10, 2003.
Appeal, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered December 4, 2002, which (1) reversed, on the law, a judgment of the Supreme Court (John Brunetti, J.), rendered in Onondaga County upon a verdict convicting defendant of grand larceny in the second degree, (2) dismissed the indictment, and (3) remitted the matter to Supreme Court for proceedings pursuant to CPL 470.45.
People v. Hart, 300 A.D.2d 987, affirmed.
Submitted by Paul R. Berry, for appellant.
Submitted by Philip Rothschild, for respondent.
Chief Judge Kaye and Judges Smith, Ciparick, Wesley, Rosenblatt, Graffeo and Read concur.
MEMORANDUM:
The order of the Appellate Division should be affirmed. The Appellate Division properly determined that, viewed in the light most favorable to the People, the evidence at the first trial was legally insufficient to prove beyond a reasonable doubt that defendant made a false material statement about a past or presently existing fact and, thus, defendant could not be convicted of grand larceny by false pretenses (see Penal Law § 155.05[a]; see generally People v. Norman, 85 N.Y.2d 609, 619).
The People do not challenge the Appellate Division's ability to review the sufficiency of evidence presented at the first trial on appeal from the conviction after the second trial. Therefore, this issue is not before this Court on this appeal.
On review of submissions pursuant to section 500.4 of the Rules, order affirmed, in a memorandum.