New York Appellate Digest
  • Home
  • About
  • Just Released
  • Update Service
  • Streamlined Research
  • CLE Courses
  • Contact
  • Menu Menu
You are here: Home1 / Criminal Law2 / THE JURY SHOULD HAVE BEEN CHARGED WITH THE “DEFENSE OF A GOOD CLAIM...
Criminal Law, Evidence, Judges

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.

 

October 7, 2026
Tags: Second Department
Share this entry
  • Share on WhatsApp
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2026-10-07 10:51:492026-10-17 11:45:40THE 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). ​
You might also like
PLAINTIFFS’ COMPLAINT DID NOT STATE PRIVATE AND PUBLIC NUISANCE CAUSES OF ACTION BASED UPON SINKHOLES ON PLAINTIFFS’ LAND WHICH ALLEGEDLY RESULTED FROM THE FAILURE OF A BULKHEAD ON DEFENDANT’S PROPERTY (SECOND DEPT).
THE ZONE OF DANGER THEORY OF LIABILITY IS AVAILABLE ONLY TO THE IMMEDIATE RELATIVES OF THE INJURED PARTY; PETITIONERS’ CHILDREN WITNESSED THE FATAL INJURY TO ANOTHER STUDENT WHO WAS NOT RELATED; PETITIONERS’ REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT ALLEGING INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
ALTHOUGH PLAINTIFF COMMERCIAL TENANT DID NOT PROVE IT GAVE TIMELY NOTICE OF ITS INTENT TO RENEW THE LEASE, THE TENANT WAS ENTITLED TO RELIEF IN EQUITY (SECOND DEPT).
IN THIS FORECLOSURE PROCEEDING, PLAINTIFF BANK FAILED TO DEMONSTRATE STRICT COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; NO FOUNDATION FOR THE SUBMITTED BUSINESS RECORDS (SECOND DEPT).
MOTION TO COMPEL PLAINTIFF TO ACCEPT A LATE ANSWER, IN RESPONSE TO PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT, PROPERLY GRANTED (SECOND DEPT).
THE PROOF THE FORECLOSURE NOTICE WAS MAILED IN ACCORDANCE WITH RPAPL 1304 WAS INSUFFICIENT (SECOND DEPT).
EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).
AT THE FORECLOSURE TRIAL, THE BANK DEMONSTRATED THE RPAPL 1304 NOTICE OF FORECLOSURE WAS SENT TO DEFENDANT BY CERTIFIED MAIL BUT FAILED TO PROVE THE NOTICE WAS ALSO SENT BY REGULAR MAIL; COMPLAINT DISMISSED (SECOND DEPT).
0 replies

Leave a Reply

Want to join the discussion?
Feel free to contribute!

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Categories

  • Abuse of Process
  • Account Stated
  • Accountant Malpractice
  • Administrative Law
  • Agency
  • Animal Law
  • Appeals
  • Arbitration
  • Architectural Malpractice
  • Arts and Cultural Affairs Law
  • Associations
  • Attorneys
  • Banking Law
  • Bankruptcy
  • Battery
  • Chiropractor Malpractice
  • Civil Commitment
  • Civil Conspiracy
  • Civil Forfeiture
  • Civil Procedure
  • Civil Rights Law
  • Condominium Corporations
  • Condominiums
  • Constitutional Law
  • Consumer Law
  • Contempt
  • Contract Law
  • Conversion
  • Cooperatives
  • Copyright
  • Corporation Law
  • Correction Law
  • County Law
  • Court of Claims
  • Criminal Law
  • Debtor-Creditor
  • Defamation
  • Dental Malpractice
  • Disciplinary Hearings (Inmates)
  • Education-School Law
  • Election Law
  • Eminent Domain
  • Employment Law
  • Engineering Malpractice
  • Environmental Law
  • Equitable Recoupment
  • Evidence
  • Fair Credit Reporting Act
  • Fair Housing Act
  • Fair Housing Amendments Act
  • False Arrest
  • False Claims Act
  • False Imprisonment
  • Family Law
  • Federal Employers' Liability Act (FELA)
  • Fiduciary Duty
  • Forcible Touching
  • Foreclosure
  • Fraud
  • Freedom of Information Law (FOIL)
  • Human Rights Law
  • Immigration Law
  • Immunity
  • Indian Law
  • Insurance Law
  • Intellectual Property
  • Intentional Infliction of Emotional Distress
  • Involuntary Medical Treatment and Feeding (Inmates)
  • Judges
  • Judiciary Law
  • Labor Law
  • Labor Law-Construction Law
  • Land Use
  • Landlord-Tenant
  • Legal Malpractice
  • Lien Law
  • Limited Liability Company Law
  • Longshoreman's and Harbor Worker's Compensation Act
  • Malicious Prosecution
  • Maritime Law
  • Medicaid
  • Medical Malpractice
  • Mental Hygiene Law
  • Military Law
  • Money Had and Received
  • Municipal Law
  • Navigation Law
  • Negligence
  • Negligent Infliction of Emotional Distress
  • Negligent Misrepresentation
  • Notarial Misconduct
  • Nuisance
  • Partnership Law
  • Personal Property
  • Pharmacist Malpractice
  • Physician Patient Confidentiality
  • Pistol Permits
  • Prima Facie Tort
  • Private Nuisance
  • Privilege
  • Products Liability
  • Professional Malpractice
  • Public Authorities Law
  • Public Corporations
  • Public Health Law
  • Public Nuisance
  • Real Estate
  • Real Property Actions and Proceedings Law (RPAPL)
  • Real Property Law
  • Real Property Tax Law
  • Religion
  • Replevin
  • Retirement and Social Security Law
  • Securities
  • Sepulcher
  • Sex Offender Registration Act (SORA)
  • Social Services Law
  • Statutes
  • Tax Law
  • Tenant Harassment
  • Tortious Interference with Contract
  • Tortious Interference with Employment
  • Tortious Interference with Prospective Business Relations
  • Tortious Interference With Prospective Economic Advantage
  • Town Law
  • Toxic Torts
  • Trade Secrets
  • Trademarks
  • Trespass
  • Trespass to Chattels
  • Trusts and Estates
  • Uncategorized
  • Unemployment Insurance
  • Unfair Competition
  • Uniform Commercial Code
  • Usury
  • Utilities
  • Vehicle and Traffic Law
  • Victims of Gender-Motivated Violence Protection Law (VGM)
  • Village Law
  • Water Law
  • Workers' Compensation
  • Zoning

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.