Connors & Vilardo, LLP, Buffalo (Terrence M. Connors of counsel), for defendant-appellant. R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), for respondent. Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered March 2, 2011. The judgment convicted defendant, upon a jury verdict, of grand larceny in the fourth degree. It is hereby ordered that the judgment so appealed from is reversed on the law and the indictment is dismissed without prejudice to the People to file any appropriate charge. Same memorandum as in People v Pallagi (91 AD3d 1266 [2012]). All concur except Scudder, P.J., who dissents and votes to modify in accordance with the same dissenting memorandum as in People v Pallagi (91 AD3d 1266 [2012]). Present Scudder, P.J., Smith, Centra and Gorski, JJ.