For subscription based briefing and sample instructions on this and related issues see:
Forecite NationalÔ
Forecite CaliforniaÔ
F 1863 - Defense To Theft Or Robbery: Claim of Right (PC 511)
Saturday, February 26, 2011
Claim Of Right May Negate Larcenous Intent Even If Defendant Did Not Own The Property (New York)
People v. Zona, 2010 NY Slip Op 3801, 5 (N.Y., No. 73, 5/6/2010) rejected the notion that a defendant must establish that he previously owned or possessed the property at issue in order to assert the claim of right defense. Rather, the New York statute, merely requires a good‑faith belief "that the property was appropriated under a claim of right." Penal Law § 155.15 [1]. Other New York decisions reflect this interpretation. For example, in People v Ricchiuti (93 AD2d 842, 461 N.Y.S.2d 67 [2d Dept 1983]), the defendant, an employee of a cosmetics company was indicted for grand larceny for allegedly stealing large quantities of merchandise from his employer. At trial, defendant did not attempt to establish his ownership in the company's merchandise, but rather offered evidence that his employer authorized him to distribute unlimited quantities of the merchandise to various charities, vendors, and friends of the company. The Appellate Division determined that the evidence supported a claim of right defense and reversed the judgment of conviction because Supreme Court did not instruct the jury accordingly. (Id. at 844; see also People v Ace, 51 AD3d 1379, 1380, 856 N.Y.S.2d 792 [4th Dept 2008] [conviction overturned where "a reasonable view of the evidence that would enable a jury to find that defendant took the rails under a claim of right" established after defendant's employer instructed him to take the employer‑owned rails to a scrap yard].
