Muldoon, Getz & Reston

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Claim of Right with Larceny and Robbery Charges
by Gary Muldoon
Muldoon, Getz & Reston
Rochester, New York

In a larceny-related prosecution, the defense may seek to assert a good faith belief that the defendant owned or had a superior claim to the property. The difficulty in such cases revolves largely upon whether a jury instruction is appropriate.

Larceny involves the wrongful deprivation of another person’s property; claim of right. Penal Law § 155.15(1) addresses the issue, making it an “affirmative defense that the property was appropriated under a claim of right made in good faith.” The difficulty is that by making it an affirmative defense, it unconstitutionally shifts the burden of proof to the defendant, by a preponderance of evidence. People v Chesler, 50 NY2d 203 (1980).

Abandoned property

The claim-of-right defense was found applicable in a case where the defendant did not own the property but the property may have been abandoned. A deputy county sheriff was charged with stealing two tires that were owned by the county. The tires were at an auto shop, and the deputy instructed the shop’s owner to install them on the deputy’s personal vehicle. The evidence showed that the shop’s owner had told him that the tires had been left for 30 days and had become the property of the shop. A reasonable view of the evidence warranted a claim-of-right instruction. People v Baroody, 59 AD3d 1111 (4th Dept 2009). See also, People v Ace, 51 AD3d 1379 (4th Dept 2008).

Robbery and “self help”

A claim of right may negate larcenous intent in certain thefts, but how does the defense apply in cases involving forcible stealing? The claim does not negate the intent to commit robbery by using force, thus the doctrine of self help may not be advanced. People v O’Hanlon, 252 AD2d 670 (3d Dept 1998); People v Reid, 69 NY2d 469 (1987).

Defense commenting on issue to jury

While the defense in a robbery prosecution is not entitled to a claim-of-right jury instruction, as to the issue of who had a superior right of possession, “a defendant is, of course, free to make that argument to the jury.” People v Green, 5 NY3d 538 (2005); People v Harrison, 35 AD3d 52 (1st Dept 2006).

© 2013 by Gary Muldoon