Opinion
1369
June 13, 2002.
Judgment, Supreme Court, New York County (Felice Shea, J.), rendered July 17, 1998, convicting defendant, after a nonjury trial, of grand larceny in the third degree, and sentencing her to a term of 6 months concurrent with 5 years probation, unanimously affirmed. The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).
PATRICIA CURRAN, for respondent.
MONICA R. JACOBSON, for defendant-appellant.
Before: Before: Before: Before: Before: Williams, P.J., Tom, Saxe, Friedman, Marlow, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490). There is no basis upon which to disturb the court's determinations concerning credibility. There was abundant evidence that defendant committed larceny by both false pretenses and false promises (see, People v. Norman, 85 N.Y.2d 609). Defendant obtained $20,000 from the victim by making false statements of fact upon which the victim relied, and by making various promises that defendant clearly had no intention of fulfilling.
With respect to the theory of larceny by false promise, the People's proof satisfied the special burden of proof set forth in Penal Law § 155.05(2)(d). The court, as trier of fact, presumably applied all appropriate legal standards (People v. Marvin, 216 A.D.2d 930, lv denied 86 N.Y.2d 944, citing People v. Moreno, 70 N.Y.2d 403, 406). Therefore, trial counsel's failure to call the heightened standard of proof to the court's attention was not ineffective assistance of counsel, the record establishes that defendant received meaningful representation (see,People v. Benevento, 91 N.Y.2d 708, 713-714).
The record does not establish that defendant's sentence was based on any improper criteria and we perceive no basis for reduction of sentence.
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.