
    The People of the State of New York, Respondent, v. William R. Brown, Appellant.
   Per Curiam.

The defendant appeals from a judgment of conviction, following a trial by jury, for presenting a false and fraudulent claim upon a policy of insurance (Penal Law, § 1202, subd. 1), attempted grand larceny in the second degree, and conspiracy. The three-count indictment and the resulting conviction here considered arose from a series of events instigated by the defendant and two other persons allegedly seeking to cheat and defraud an insurance company by the theft of the defendant’s automobile. The first count charging violation of subdivision 1 of section 1202 of the Penal Law which, as pertinent hereto, states that “A person who knowing it to be such * * * Presents, or causes to be presented, a false or fraudulent claim, or any proof in support of such a claim, for the payment of a loss upon a contract of insurance; ” is punishable by imprisonment, was not, in our opinion, proven beyond a reasonable doubt. Testimony was given by an insurance adjuster and the form of the alleged notice of loss left open an issue of fact as to whether the defendant considered it a statement surrounding the taking of his car or such proof. The court, in its charge to the jury, should have marshaled and explained the facts in this extremely close issue. Under the circumstances, the conviction should be reversed as to this count of the indictment. The second count charged attempted grand larceny, second degree. The court properly instructed the jury not only as to attempted grand larceny, second, but as to petit larceny. We are unable to say on this record, ■because of the vagueness of the testimony, that attempted grand larceny was proven beyond a reasonble doubt, but, in our opinion, the evidence was sufficient to sustain a conviction for petit larceny and we would accordingly reduce the conviction to this charge. The third count charged conspiracy between the defendant and one Amos Bailey to cheat and defraud the insurance company and we find the instructions to the jury proper and the evidence sufficient to sustain a conviction. Judgment of conviction modified, on the law and the facts and in the interests of justice, so as to delete the provisions convicting defendant of, and sentencing him for, the crimes of presenting a false and fraudulent claim upon an insurance policy and attempted grand larceny, second degree; and so as to convict defendant of the crime of petit larceny, for which he is sentenced to imprisonment in Attica State Prison for a term of one year, such sentence to be served concurrently with the sentence for the crime of conspiracy, and, as so modified, affirmed. Gibson, P. J., Herlihy, Reynolds, Taylor and Hamm, JJ., concur.  