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] [d]) 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
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