THE JURY SHOULD HAVE BEEN CHARGED WITH THE “DEFENSE OF A GOOD CLAIM OF RIGHT” IN THIS PETIT LARCENY CASE; DEFENDANT HAD REMOVED A MEMORIAL TO A MURDER VICTIM WHICH HAD BEEN SET UP ON THE SIDEWALK IN FRONT OF DEFENDANT’S MOTHER’S HOUSE (SECOND DEPT). ​

The Second Department, vacating defendant’s petit larceny conviction and ordering a new trial, over a dissent, determined the jury should have been charged with the “defense of good claim of right.” The defendant was tried for criminally negligent homicide and petit larceny. A mistrial was declared on the criminally negligent homicide charge and she was convicted of petit larceny. Defendant subsequently pled guilty to criminally negligent homicide and then appealed the petit larceny conviction. The petit larceny charge alleged defendant dismantled and took away parts of a memorial for a murder victim which had been set up on the sidewalk in front of defendant’s mother’s house by the murder victim’s mother. It was the murder victim’s mother who was killed when she was struck by a vehicle driven by the defendant (the subject of the criminally negligent homicide conviction):

… 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” … . “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” … . “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” … . “If the evidence sufficiently supports a defense, a failure by the court to charge the jury constitutes reversible error” … .

… [W]e find that there was sufficient evidence to support the defendant’s good faith claim of right defense. * * * … [A]t 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 … . People v Drago, 2026 NY Slip Op 05807, Second Dept 10-7-26

Practice Point: Consult this decision for a rare discussion of the “defense of a good claim of right” in the context of a petit larceny charge.