The People, etc., respondent, v. Annmarie Drago, appellant. (2026)

Argued—May 18, 2026

DECISION & ORDER

C/

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Richard Ambro, J.), rendered August 6, 2024, convicting her of petit larceny, upon a jury verdict, and criminally negligent homicide, upon her plea of guilty, and imposing sentence.

ORDERED that the judgment is modified, on the law and the facts, by vacating the conviction of petit larceny and vacating the sentence imposed thereon;  as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Suffolk County, for a new trial on that count of the indictment.

The defendant was convicted, following a jury trial, of petit larceny for taking property of another, but a mistrial was declared on the charge of criminally negligent homicide stemming from her act of striking the decedent with her vehicle, thereby causing the decedent's death.  Subsequently, the defendant was convicted, upon her plea of guilty, of criminally negligent homicide.

Contrary to the People's contention, the Supreme Court improperly denied the defendant's request to charge the jury with the defense of a good faith claim of right.  “In determining whether to instruct a jury on a claimed defense, the court must view the evidence adduced at trial in the light most favorable to the defendant” (People v. Zona, 14 NY3d 488, 493).  “The charge must be given if there is evidence reasonably supportive of the defense, even if there is other evidence which, if credited, would negate it” (People v. J.L., 36 NY3d 112, 119 [internal quotation marks omitted] ).  “Where evidence exists upon which the jury could reasonably find that a particular defense applies, questions as to the credibility of the defendant's testimony or inconsistences in the evidence presented do not disentitle the defendant to an instruction on the defense;  those questions of fact are to be resolved by the jury” (People v. Debellis, 40 NY3d 431, 438).  “If the evidence sufficiently supports a defense, a failure by the court to charge the jury constitutes reversible error” (People v. Williams, 36 NY3d 156, 160 [alteration and internal quotation marks omitted];  see People v. Zona, 14 NY3d at 493).

Contrary to our dissenting colleague's contention, viewing the evidence before the jury in the light most favorable to the defendant, we find that there was sufficient evidence to support the defendant's good faith claim of right defense.  Our dissenting colleague contends that there was no direct evidence to support the defendant's belief that she had the authority or right to take items that were set up for a memorial for the decedent's daughter, or that the defendant otherwise had a good-faith basis to remove the memorial items left unattended in front of her mother's home.  However, at trial, the People read the defendant's grand jury testimony demonstrating that she had previously removed memorial items, including, inter alia, balloons and flowers without incident.  Furthermore, at trial, a witness testified that he and the defendant, among others, had previously removed memorial items and no one ever asked where said items were and no one was ever arrested for removing same.  This evidence reasonably supports the defendant's claim of right defense.  While there may have been evidence that contradicts the defendant's claim of right defense, those are questions of fact the jury should have resolved (see People v. Debellis, 40 NY3d at 438).  Notably, the jury sent several notes regarding the elements of petit larceny, including, among others, the following:  “Does the original owner of an item relinquish any claim to ownership once that item is left unattended on another person's property?  Or does the property[ ] owner then gain a superior claim to ownership of that item?”  This jury note further demonstrates that evidence exists upon which the jury could reasonably find that the claim of right defense applies.  Thus, the court's failure to charge the jury with this defense constitutes reversible error (see People v. Williams, 36 NY3d at 160;  People v. Zona, 14 NY3d at 493).  Accordingly, we vacate the conviction of petit larceny and the sentence imposed thereon, and remit the matter to the Supreme Court, Suffolk County, for a new trial on that count of the indictment.

Contrary to the defendant's contention, her redacted grand jury testimony was properly admitted into evidence at trial as part of the People's case-in-chief (see People v. Rodriguez, 73 AD3d 815, 816;  People v. Spurgeon, 264 A.D.2d 401, 401).  Moreover, there was no error in the Supreme Court's ruling permitting two prosecutors to read the testimony into the record (see People v. Dimas, 228 AD3d 955, 957).

However, the Supreme Court improvidently exercised its discretion in admitting certain text messages sent by the decedent, concerning her daughter's vigil, as this evidence was not relevant to the issues at trial regarding the charged offenses (see generally People v. Mateo, 2 NY3d 383, 424–425).  The defendant also contends that those text messages were hearsay and unduly prejudicial and that the admission of the same violated her constitutional right to confront witnesses.  However, the alleged errors are unpreserved for appellate review, since the defendant objected on specific grounds which are different from the grounds she raises on appeal (see People v. Hernandez, 186 AD3d 1246, 1247;  People v. Saladana, 208 A.D.2d 872, 872–873).  Under the circumstances, we decline to reach these contentions in the exercise of our interest of justice jurisdiction.

In light of her plea of guilty, the defendant's contention that the People's proof at trial was insufficient to prove the criminally negligent homicide charge beyond a reasonable doubt was waived and rendered academic (see People v. Gerber, 182 A.D.2d 252, 259).

The defendant's contention that she did not knowingly, voluntarily, and intelligently waive her right to appeal need not be reached, since she withdrew the portion of her appeal regarding her plea of guilty.

The defendant's remaining contentions are without merit.

GENOVESI, J.P., WAN and HOM, JJ., concur.

DOWLING, J., concurs in part and dissents in part, and votes to affirm the judgment, with the following memorandum:

In my view, contrary to the conclusion of my colleagues in the majority, the Supreme Court did not err in failing to instruct the jury on a claim of right defense.  Therefore, I respectfully dissent in part.

The defendant was convicted of petit larceny in connection with her removal and damage of a formal memorial that had been placed on the sidewalk outside a residence (hereinafter the property) owned by the defendant's mother on September 14, 2018.  The memorial included a large fresh flower wreath, balloons, tall glass candles, a cardboard photograph, and easel set atop a folding table and tablecloth, and had been placed by the victim, Evelyn Rodriguez, and her partner, Freddy Cuevas, in connection with a vigil for their murdered daughter scheduled to be held later that same day.  The defendant dismantled and removed the memorial a few hours before the vigil was scheduled to begin by popping the balloons and discarding the candles in a trash can, and by placing the flower display, folding table, easel, and cardboard photograph in the trunk of her car.

At the trial, the jury heard evidence that the body of Rodriguez and Cuevas's daughter had been discovered on or near the property by the defendant's mother on September 14, 2016, that September 14, 2018, was the two-year anniversary of the daughter's death, that the vigil scheduled to be held later that day was being covered by local news, and that a similar vigil had been held in the same location on September 14, 2017.  During the two years since the daughter's death, old balloons, flowers, candles, and other various trash items such as pizza boxes, cigarette butts, and beer and liquor bottles had been left or discarded on or around the property on numerous occasions, and the defendant's mother had moved out of the residence and put it up for sale.  The defendant was responsible for keeping her mother's property clean for prospective buyers and had discarded trash and other items left around the property in the past.  The property was already under contract to be sold on September 14, 2018.

The jury also heard evidence that a real estate agent had contacted the defendant on September 14, 2018, and asked her to go by the “house” and “clean it up,” although no specific mention of the memorial was made.  The defendant drove to the property and saw the fresh memorial set up on the sidewalk when she arrived.  The defendant testified that she knew that the items in the memorial were not hers and did not otherwise belong to her.  Additionally, none of the items previously discarded from the property were formally set up with a table in the same manner as the memorial.  Nevertheless, the defendant dismantled the memorial, discarded the balloons and candles, and placed the remaining items in her vehicle.  The jury also heard conflicting evidence as to whether a neighbor had asked the defendant to remove the memorial when she arrived at the property, whether the defendant had been informed that the vigil was scheduled for September 14, 2018, prior to taking and discarding the memorial items, and whether Rodriguez and Cuevas asked the defendant to return the memorial items after they observed them in the trunk of her car.  The defendant struck Rodriguez with her car while attempting to leave the area after removing the memorial items, resulting in Rodriguez's death.

“In determining whether to issue a particular instruction, the court ‘must view the evidence adduced at trial in the light most favorable to the defendant’ ” (People v. J.L., 36 NY3d 112, 119, quoting People v. Zona, 14 NY3d 488, 493).  “[I]f there is a reasonable view of the evidence that supports the defense, regardless of evidence to the contrary, the court is without discretion to deny the charge, and error in this regard requires reversal and a new trial” (id.;  see People v. McKenzie, 19 NY3d 463, 466).  “However, ‘when no reasonable view of the evidence would support a finding of the tendered defense, the court is under no obligation to submit the question to the jury’ ” (People v. Williams, 36 NY3d 156, 160, quoting People v. Watts, 57 N.Y.2d 299, 301).

Generally, one who acts under a claim of right lacks the intent to steal (see People v. Zona, 14 NY3d at 492–493;  People v. Green, 5 NY3d 538;  People v. Coates, 64 A.D.2d 1, 9–10;  see also People v. Kachadourian, 184 AD3d 1021, 1024).  Thus, in a prosecution for petit larceny, it is a defense “that the property was appropriated under a claim of right made in good faith” (Penal Law § 155.15[1];  see People v. 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 whether defendant's belief was reasonable” (People v. Rios, 107 AD3d 1379, 1382, quoting People v. Zona, 14 NY3d at 493).

In my view, no reasonable view of the evidence presented at trial, even when viewed in the light most favorable to the defendant, supports a conclusion that the defendant appropriated the memorial items under a claim of right made in good faith.  The defendant offered no direct evidence to support an alleged subjective belief that she had the authority or right to dismantle and take or discard the memorial items set up on the sidewalk, and, contrary to the conclusion of my colleagues in the majority, there were no questions of credibility or inconsistencies in the evidence presented on this issue to be resolved by a jury (see People v. Debellis, 40 NY3d 431, 438).  Rather, it was undisputed that the defendant knew that the items in the memorial did not belong to her, and that she did not receive permission or authority from any individual whom she believed owned the memorial items to damage the memorial or take any of its components (cf.  People v. Baroody, 59 AD3d 1111;  People v. Ace, 51 AD3d 1379, 1380;  People v. Ricchiuti, 93 A.D.2d 842).  The jury note referenced by the majority inquiring about superior claims of ownership to items left on another's property does not demonstrate that the jury heard evidence that the defendant had a subjective belief that she had the authority or right to dismantle and take or discard the memorial items set up on the sidewalk.

Additionally, no evidence was presented that the memorial items had been abandoned or that the defendant otherwise had a good-faith belief that the memorial was trash (cf.  People v. Lowin, 71 AD3d 1194, 1197).  Although the defendant had cleaned-up or otherwise removed items that had been left or discarded in or around the property in the past, the memorial—a formal display containing a fresh flower wreath and cardboard photograph with easel, among other items, set up on a folding table on the sidewalk on the two-year anniversary of the deceased daughter's death—was conspicuously different from those prior items.  Even crediting evidence suggesting that the defendant felt an obligation or responsibility to her neighbors and the real estate agent to remove the memorial, such obligation or responsibility does not equate to a good-faith claim of right to the memorial items.  Certainly, feeling pressure to take or destroy property that a defendant knows rightfully belongs to another does not negate larcenous intent.  Unfortunately, here, the defendant's decision to appropriate the property belonging to another ultimately resulted in the senseless death of Rodriguez, who was attempting to hold a vigil for her murdered daughter.  Accordingly, I find that a claim of right charge was not warranted, and that the Supreme Court properly denied the defendant's request to charge the jury with a claim of right defense (see People v. Williams, 36 NY3d at 160;  People v. Zona, 14 NY3d at 492–493).

As for the additional contentions raised by the defendant, I agree with the conclusion of my colleagues in the majority that such contentions are either without merit, unpreserved for appellate review, or academic.  Thus, I vote to affirm the judgment of conviction.

ENTER:

Darrell M. Joseph

Clerk of the Court