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DEFENDANT WAS NOT ACTING IN BAD FAITH IN SEEKING THE TESTIMONY OF CERTAIN WITNESSES; THE TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED; CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s scheme to defraud conviction, determined defendant should not have been precluded from calling witnesses in good faith:

“Pursuant to Penal Law § 155.15(1) [i]n any prosecution for larceny committed by trespassory taking or embezzlement, it is an affirmative defense that the property was appropriated under a claim of right made in good faith'” … . In this case, the defendant claimed that the money from the grant from OCFS [Office of Children & Family Service] was appropriated mistakenly but in good faith as reimbursement for expenses he personally paid for events occurring in 2008 and 2009, after the grant was awarded but in a time period not covered by the grant. The defendant intended to call as witnesses, a videographer who would attest to the fact that he “got paid” for services at a 2009 event, and others who would testify as to other expenses at that event. …

The record does not establish that the defendant was acting in bad faith in seeking to present the testimony of these witnesses at the trial. The proposed testimony did not deal with a collateral issue … , but, rather, went to the heart of the defendant’s claim of right defense. Thus, it was error for the Supreme Court to have prospectively precluded the defendant’s witnesses from testifying, and, under the facts of this case, that error cannot be deemed harmless. People v Wills, 2020 NY Slip Op 04976, Second Dept 9-16-20

 

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