| People v Zona |
| 2009 NY Slip Op 02015 [60 AD3d 1279] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joshua M.Zona, Appellant. |
—[*1] R. Michael Tantillo, Special District Attorney for Seneca County, Canandaigua, forrespondent.
Appeal from a judgment of the Seneca County Court (W. Patrick Falvey, J.), rendered July3, 2008. The judgment convicted defendant, upon a jury verdict, of petit larceny.
It is hereby ordered that the judgment so appealed from is reversed on the law and a new trialis granted.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of one countof petit larceny (Penal Law § 155.25), defendant contends that County Court erred indenying his request to charge the jury on the claim of right defense (see § 155.15[1]; People v Chesler, 50 NY2d 203 [1980]). We agree. Viewing the evidence in the lightmost favorable to defendant (see People v Banks, 76 NY2d 799, 800 [1990]; People v Cunningham, 12 AD3d1131, 1132 [2004], lv denied 4 NY3d 829, 5 NY3d 761 [2005]), we conclude thatthere is a reasonable view of the evidence that would enable a jury to find that defendant, aSeneca County Deputy Sheriff, took the allegedly stolen property from the surplus propertywarehouse of the Seneca County Sheriff's Department under a claim of right (see People v Baroody, 59 AD3d111 [2009]; People v Ace, 51AD3d 1379 [2008], lv denied 11 NY3d 733 [2008]). We note that, contrary to thecourt's conclusion, the defense applies where, as here, a defendant claims that he or she wasgiven the right to possess the property by another person who has authority over it (seegenerally Chesler, 50 NY2d 203 [1980]).
The indictment alleged, inter alia, that defendant stole property that included a boat and tires.At trial, the People presented the statement of defendant to the police indicating that theUndersheriff had given him permission to take the allegedly stolen items from the warehouse.The People also presented evidence establishing that the items in the warehouse includedwrecked patrol cars, recovered property, out-of-service items, and other property that was nolonger being used by the Sheriff's Department. The evidence establishes that there was a bullethole in the boat and that the tires taken by defendant were apparently unused, but there is noevidence establishing that the tires fit any Sheriff's Department vehicle that was still in servicewhen defendant took the tires. Viewing the evidence in the light most favorable to defendant,including the evidence demonstrating that the Sheriff's deputies used their personal vehicles toperform departmental duties, we agree with defendant that there is a reasonable view of theevidence to support a finding that he had a good faith belief that the Undersheriff had authorityto [*2]dispose of the surplus property and that the Undersheriffhad given him permission to take the tires and the other property.
All concur except Fahey and Peradotto, JJ., who dissent and vote to affirm in the followingmemorandum.
Fahey and Peradotto, JJ. (dissenting). We respectfully dissent because in our view, CountyCourt properly denied defendant's request to charge the jury on the defense of claim of right. Wecannot agree with the majority that there is a reasonable view of the evidence, viewed in the lightmost favorable to defendant (see People v Banks, 76 NY2d 799, 800 [1990]), that wouldenable a jury to find that defendant took property from the surplus warehouse of the SenecaCounty Sheriff's Department "under a claim of right made in good faith" (Penal Law §155.15 [1]; see People vCunningham, 12 AD3d 1131, 1132 [2004], lv denied 4 NY3d 829, 5 NY3d 761[2005]; People v Geppner, 122 AD2d 394, 396 [1986]; cf. People v Ace, 51 AD3d 1379[2008], lv denied 11 NY3d 733 [2008]).
Defendant offered no direct evidence to support his alleged belief that he had the authority orright to take the property (cf. Ace, 51 AD3d at 1380). Indeed, we note that the evidenceon which the majority relies to support defendant's alleged belief is a statement made bydefendant to the police in which he stated, "[The Undersheriff] told us that he was taking a canoehome and he told us we could take what we want. [The Undersheriff] also took some old militarylights and an old electric lawn mower. I took a Jon boat, a storage shelf and five 235 75R tires. Icould not use the tires on my Ford F-150 pickup truck, so I took them to Trombley's in SenecaFalls and I traded them towards new tires for my truck." Notably, defendant did not inform thepolice that he believed that he had the right to take the property, nor did he state that he believedthat the Undersheriff had the authority to give permission to take the property. Moreover, therewas no evidence that the property in question had been abandoned, which renders this casedistinguishable from People vBaroody (59 AD3d 111 [ 2009]). Rather, the property here was surplus property of theSeneca County Sheriff's Department that was being stored in a warehouse.
Although the majority relies in part on evidence that Sheriff's deputies used their personalvehicles to perform departmental duties to support its conclusion that such evidence provided apossible justification for defendant's actions, we cannot agree that such evidence supports thatconclusion. The Undersheriff's statement that defendant could take what he wanted from thewarehouse was not limited to items that defendant might use in the course of his professionalduties, and there is nothing in the record to suggest that defendant took the property in question,including a boat and tires, for use in that capacity. In fact, the tires did not fit his personalvehicle, and he traded them in for new tires. In sum, there is no reasonable view of the evidenceon this record to enable a jury to find that defendant, a Sheriff's deputy charged with enforcingthe law, had a good faith belief that he had the right to take the property in question for hispersonal use and benefit. We therefore would affirm the judgment of conviction and would remitthe matter to County Court for proceedings pursuant to CPL 460.50 (5).Present—Hurlbutt, J.P., Smith, Fahey, Peradotto and Pine, JJ.