| People v Rios |
| 2013 NY Slip Op 04130 [107 AD3d 1379] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v John E. Rios, Appellant. |
—[*1] John E. Rios, defendant-appellant pro se. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.),rendered May 5, 2011. The judgment convicted defendant, upon a jury verdict, of grandlarceny in the fourth degree, aggravated unlicensed operation of a motor vehicle in thefirst degree, driving while intoxicated, a class E felony, criminal contempt in the seconddegree, aggravated unlicensed operation of a motor vehicle in the second degree and petitlarceny (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified onthe facts by reversing that part convicting defendant of grand larceny in the fourth degreeunder count seven of the indictment and dismissing that count, and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of one count each of grand larceny in the fourth degree (Penal Law §155.30 [8]), aggravated unlicensed operation of a motor vehicle in the first degree(Vehicle and Traffic Law § 511 [3] [a] [iii]), driving while intoxicated as a felony(§§ 1192 [3]; 1193 [1] [d] [4] [i]), criminal contempt in the second degree(Penal Law § 215.50 [3]), and aggravated unlicensed operation of a motor vehiclein the second degree (Vehicle and Traffic Law § 511 [2] [a] [ii]), and two countsof petit larceny (Penal Law § 155.25). Contrary to defendant's contention, CountyCourt properly denied his motion to sever those counts of the indictment relating to theincidents occurring on May 2009 from those counts relating to the incidents occurring onSeptember 2009 because he failed to show "good cause for severance" (People v Gaston, 100 AD3d1463, 1465 [2012]; see CPL 200.20 [3]). Here, "the evidence as to the [Mayand September 2009 incidents] was presented separately and was readily capable ofbeing segregated in the minds of the jury. The incidents occurred on different dates andthe evidence as to each incident was presented through entirely different witnesses" (People v Ford, 11 NY3d875, 879 [2008]), and defendant failed to establish that there was a " 'substantiallikelihood' that the jury would be unable to consider the proof of each offense separately"(People v Santana, 27AD3d 308, 309 [2006], lv denied 7 NY3d 794 [2006]). Moreover, the factthat defendant was acquitted of three charges "indicates that the jury was able to considerthe proof concerning each count separately" (Gaston, 100 AD3d at 1465).Defendant also failed to [*2]make a "convincingshowing" that he had important testimony to provide concerning the September 2009incidents and a strong need to refrain from testifying as to the May 2009 incidents(People v Lane, 56 NY2d 1, 8 [1982] [internal quotation marks omitted]).Defendant's burden to establish that the court abused its discretion in denying theseverance motion was "a substantial one" (People v Mahboubian, 74 NY2d 174,183 [1989]), and he did not meet that burden here.
We agree with defendant, however, that the verdict with respect to the grand larcenyin the fourth degree count (Penal Law § 155.30 [8]) is against the weight of theevidence, and we therefore modify the judgment accordingly. The conviction of thatcrime was based upon defendant's alleged theft of his former girlfriend's Jeep. The recordestablishes that, in May 2009, defendant's relationship with his former girlfriend haddeteriorated. Consequently, defendant agreed to leave his girlfriend's house and neverreturn if she "sign[ed] that [Jeep] over to him" and gave him the title to the Jeep. Thegirlfriend agreed and signed over the title to defendant. Defendant packed up the Jeep,drove around the block, and returned to the house 10 minutes later. Because defendanthad violated their agreement, the girlfriend told defendant that "the deal was off," tookthe title out of the Jeep without defendant's knowledge, and drove a different car to afriend's house. The girlfriend left the Jeep at her house with defendant. It is undisputedthat the girlfriend did not remove the license plates or proof of insurance from the Jeep,nor did she remove the Jeep's keys from the house. The girlfriend also testified thatdefendant believed that he had a right to possess the Jeep and that she did not inform himotherwise.
Defendant was arrested for petit larceny and driving while intoxicated on May 17,2009, and he remained in jail until September 16, 2009, at which time he returned to thegirlfriend's house. Defendant observed a "for sale" sign on the Jeep and demanded thatthe girlfriend remove it because she was not allowed to sell "his" Jeep. The girlfriendfinally convinced defendant to leave the house but, the next morning, defendant took theJeep without her knowledge. That night defendant drove the Jeep while intoxicated androlled it onto its side. Defendant was thereafter arrested for driving while intoxicated andfor stealing the Jeep.
It is well established that "a good faith claim of right is properly adefense—not an affirmative defense—and thus, 'the people have the burdenof disproving such defense beyond a reasonable doubt' " (People v Zona, 14 NY3d488, 492-493 [2010], quoting Penal Law § 25.00 [1]; see §155.15 [1]). A defendant is not required to "establish that he previously owned orpossessed the property at issue in order to assert the claim of right defense"(Zona, 14 NY3d at 494). The test is whether a defendant had a "subjective[,]good faith" belief that he or she had a claim of right to the relevant property, not whetherdefendant's belief was reasonable (id. at 493). Based on the testimony ofdefendant's former girlfriend, which is the only evidence that relates to the claim of rightissue, we conclude that it was unreasonable for the jury to conclude that the Peopleestablished beyond a reasonable doubt that defendant did not have a subjective, goodfaith basis for believing that the Jeep was his, and thus the verdict with respect to thegrand larceny in the fourth degree count is against the weight of the evidence (see generally People vDanielson, 9 NY3d 342, 348 [2007]). The only support for that count is thegirlfriend's statement to defendant that the agreement to transfer title to him was "off."The girlfriend, however, then left the house without saying anything else about the Jeep,left the keys to the Jeep in the house, and took the title out of the Jeep without informingdefendant that she had done so. Although, arguably, the girlfriend's statement todefendant retracting the agreement to transfer title should have indicated to defendantthat the Jeep was not his, that evidence did not establish beyond a reasonable doubt thatdefendant did not have a subjective, good faith basis for believing that the Jeep was his(see generally Zona, 14 NY3d at 492-493).[*3]
We have reviewed defendant's contentions in hispro se supplemental brief and conclude that none warrants reversal or furthermodification of the judgment. Present—Centra, J.P., Fahey, Carni, Lindley andWhalen, JJ.