PEOPLE v. BAROODY (2009)

Defendant appeals from a judgment convicting him, upon a jury verdict, of petit larceny (Penal Law § 155.25).   We agree with defendant that reversal is required based on County Court's failure to charge the jury that his claim of right was a defense to the crime charged.   The People presented evidence at trial that defendant, a Seneca County Deputy Sheriff, had instructed an auto shop employee to install two tires owned by Seneca County on defendant's personal vehicle.   Defendant testified at trial that the owner of the auto shop had informed defendant that those tires had been “laying around [and] were not wanted.”   Defendant's testimony was supported by the testimony of a customer of the auto shop, who heard the owner tell defendant that items left at the shop for a period exceeding 30 days became the property of the auto shop, as well as by the testimony of State Police investigators to whom defendant related that he had been told by the owner of the auto shop that the tires were not wanted.   Viewing the evidence in the light most favorable to defendant (see People v. Banks, 76 N.Y.2d 799, 800, 559 N.Y.S.2d 959, 559 N.E.2d 653;  People v. Ace, 51 A.D.3d 1379, 1380, 856 N.Y.S.2d 792, lv. denied 11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656), we conclude that the claim of right charge was warranted because there is a reasonable view of the evidence to support a finding that defendant took possession of the tires under a claim of right (see Ace, 51 A.D.3d at 1380, 856 N.Y.S.2d 792;  cf. People v. Cunningham, 12 A.D.3d 1131, 1132, 785 N.Y.S.2d 244, lv. denied 5 N.Y.3d 761, 801 N.Y.S.2d 255, 834 N.E.2d 1265).   In view of our determination, we do not address defendant's remaining contentions.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.

MEMORANDUM: