
    [795 NE2d 31, 763 NYS2d 806]
    The People of the State of New York, Appellant, v Dennis Anthony Hart, Respondent.
    Decided June 10, 2003
    
      APPEARANCES OF COUNSEL
    
      William J. Fitzpatrick, District Attorney, Syracuse (Paul R. Berry of counsel), for appellant.
    
      Frank H Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), for respondent.
   OPINION OF THE COURT

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 [2] [a]; see generally People v Norman, 85 NY2d 609, 619 [1995]).

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.

Chief Judge Kaye and Judges Smith, Ciparick, Wesley, Rosenblatt, Graffeo and Read concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, in a memorandum.  