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A “Claim of Right” Defense to a New York Embezzlement or Grand Larceny Arrest: Understanding NY PL 155.15 & Its Applicability to Your Criminal Defense

In many of our discussions, we’ve highlighted that while New York’s larceny and theft laws can seem straightforward enough on paper, their interpretations are sometimes extremely ambiguous. As a result, we’ve recommended consulting your New York criminal lawyer in any circumstance where you have been charged with a larceny-related offense whether it be Petit Larceny, Grand Larceny, Criminal Possession of Stolen Property or a similar crime. Today, we’ll be discussing one of a number of defenses that, in the event you are charged with a crime involving larceny, your attorney may be able to assert on your behalf.

There are many methods of proving a defendant’s innocence (actually, it is the People’s burden to prove your guilt). In some circumstances, it is most effective to highlight inconsistencies in the prosecution’s case. In others, evidence can be presented that contradicts the state’s theory of a crime. A third and somewhat less utilized method of proving a defendant’s innocence is to assert a statutory defense. Unlike the first two methods, a statutory defense admits that while a defendant may have performed the crime that prosecutors allege, such as Petit Larceny or Grand Larceny, there is a justification that excuses him or her from guilt for doing so.

In New York, one example of a statutory defense is the claim of right. A claim of right may be asserted in cases involving two specific types of larceny: larceny by trespassory taking and larceny by Embezzlement. Under New York Penal Law 155.00, one way a person commits larceny by Embezzlement is when he or she is entrusted with a piece of property by the property’s owner, and subsequently keeps it without the owner’s permission. A person commits larceny by trespassory taking when he or she takes a piece of property from its owner and uses it for a period of time, no matter how long, in a manner inconsistent with the owner’s rights. Under New York Penal Law 155.15, it is a defense to both crimes if the person that took the property did so “under a claim of right made in good faith.” In other words, if the defendant honestly believed that he or she had the owner’s permission to take the property in question, the defendant’s criminal conduct can be excused.

In People v. Zona, 60 A.D.3d 1279, the Court elaborated upon when a defendant may assert that property was taken under a claim of right. In Zona, a high ranking member of the sheriff’s department instructed several lower-ranked officers to transfer department property from one warehouse to another. After the job was completed, one lower-ranked officer claimed that his superior took several items from the warehouse and instructed the subordinates that they, too, could take whatever they wanted in storage there. The lower-ranked officer took several items, including five new tires, a boat that contained a bullet hole, and a filing cabinet.

The officer brought the tires to a tire store, where he exchanged them towards the purchase of a different set of tires. Subsequent to the purchase, the officer discovered that although his superior had told the subordinates they could take anything stored in the warehouse, he actually had no authority to give away the department’s property. Upon learning this, the defendant promptly returned the boat and the filing cabinet. When he tried to recover the tires, however, he was told that they had already been sold. Determined to find replacements, he purchased five comparable tires and returned them to the warehouse. Some time later, authorities from the department conducted an investigation into the missing property. When the replacement tires were discovered, the officer was charged with one count of petit larceny, a misdemeanor.

Before trial, the defendant requested a dismissal of the indictment against him. He argued that he honestly believed that he could take the property stored in the warehouse, and that the prosecutor’s failure to properly instruct the grand jury on the good faith claim of right defense unfairly prejudiced him. The Court denied the defendant’s request, holding that the defendant, “could not assert that he had at any time owned or possessed the property procured from the storage facility.” At trial, the defendant similarly requested that the Court instruct the jury on the claim of right defense, but he was once again denied. The defendant was convicted, but appealed based on the Court’s repeated denials of his request.

Ultimately, the New York Court of Appeals reversed the trial court’s decision. The Court began by rejecting the notion that a defendant must establish that he or she previously owned or possessed the property in question in order to assert a claim of right defense. The Court explained that nothing in the language of New York Penal Law 155.15(1) required that the statute be interpreted in this manner. Therefore, if the evidence reflected that the defendant was entitled to an instruction on the claim of right defense, the trial court’s failure to do so guaranteed him a new trial.

Next, the Court evaluated whether the evidence presented entitled the defendant to a jury instruction on the defense. The Court explained that when a trial court evaluates evidence for the purposes of a jury instruction, it must be viewed in the manner that is most favorable to the defendant. After reviewing the evidence presented at trial, the Court determined that the sheriff’s statement that the ranking officer had told him he could take the property, if credible, was sufficient to establish that the defendant believed he had permission to do so. The trial court should have viewed this statement in its most favorable light – thus, the statement should have been considered credible. Consequently, the Court of Appeals found, the defendant was entitled to a jury instruction that he was acting under a claim of right, and the defendant was granted a new trial.

Obviously, the above case and statute may or may not be a useful weapon in your arsenal when accused of Grand Larceny or some other New York theft crime. To learn more about these crimes, defenses and statutes, either follow the links above or go to the blogs and websites found below.

Established by to former New York County Assistant District Attorneys, the New York criminal lawyers and former Manhattan prosecutors at Crotty Saland PC represent those accused of larceny and stolen property crimes through New York City and the neighboring suburbs.

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