In People v Baroody (2009 NY Slip Op 01020 [4th Dept 2/11/09]) the Fourth Department reversed a larceny conviction upon a finding that the trial court erred in failing to instruct the jury on a claim of right defense.
The evidence was that the defendant 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, the Court concluded 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.
One wonders if the owner of the auto shop informed all of his customers that the tires were deemed abandoned by the County and, thus, available, to be installed for free on their vehicle, or only told the defendant, a Seneca County Deputy Sheriff.
