People v. Howard

— Judgment unanimously reversed, on the law, and indictment dismissed. Memorandum: Defendant was convicted after a nonjury trial of grand larceny in the third degree (Penal Law § 155.30 [1]). This conviction was premised on a larceny by false promise (Penal Law § 155.05 [2] [dj) which provides that the defendant’s intention not to perform may not be established by or inferred from the fact alone that such promise was not performed. Further, a *987finding of an intention not to perform may be based only upon evidence establishing that the facts and circumstances of the case are wholly inconsistent…