People v. Prusan

—Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered August 3, 1995, convicting defendant, after a jury trial, of attempted grand larceny in the third degree, and sentencing him to a term of l1/3 to 4 years, unanimously affirmed. The matter is remitted to Supreme Court, New York County, for proceedings pursuant to CPL 460.50 (5). The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There was ample evidence to support defendant’s conviction of attempted grand larceny by false pretenses (People v Bauer, 32 AD2d 463, 467-474, affd 26 NY2d 915). The court properly charged the jury under the theory of larceny by false pretenses notwithstanding that the evidence may have also supported the theory of larceny by false promises (People v Norman, 85 NY2d 609, 625). The challenged portions of the People’s summation were properly responsive to defense arguments and constituted fair comment on the evidence presented within the broad bounds of rhetorical comment permissible in closing argument (see, People v Guerrero, 217 AD2d 411, lv denied 87 NY2d 902). Finally, we perceive no abuse in discretion in sentencing and have reviewed defendant’s other claims and find them to be without merit. Concur—Murphy, P. J., Wallach, Williams and Mazzarelli, JJ.