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People v. Zona

May 6, 2010

THE PEOPLE &C., APPELLANT,
v.
JOSHUA M. ZONA, RESPONDENT.



The opinion of the court was delivered by: Ciparick, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

The issue raised by this appeal is whether the evidence presented at trial, viewed in the light most favorable to defendant, supported a good-faith claim of right jury instruction. We conclude that defendant was entitled to assert this defense and that County Court erred when it denied defendant's request to charge.

This case centers around the removal of various items of property from a surplus warehouse used by the Seneca County Sheriff's department. In October or November 2005, Undersheriff James Larson, one of the highest ranking members of the Seneca County Sheriff's department, instructed defendant, a deputy sheriff, and two other deputies to transfer property stored in the Sampson State Park warehouse to a warehouse located at the Old Army Depot in Romulus. Larson supervised and assisted the deputies as they transferred the property using their personal vehicles to the new location. The bulk of the property stored at the Sampson warehouse was described at trial as "old," "wrecked," "surplus stuff," and a "lot of junk." According to defendant's later statement to an investigator, Larson "told us that he was taking a canoe home and he told us we could take what we want." Defendant took five brand new tires, a boat that contained a bullet hole, and a filing cabinet. In addition to the canoe, Larson took some old military lights, and an electric lawn mower for himself. Two of the other sheriffs supervised by Larson took canoes.

In late November or early December 2005, defendant spoke with an employee of Trombley Tire and Auto to inquire whether he could trade in the five tires he removed from the warehouse for a set of four B.F. Goodrich tires that would fit his sports utility vehicle. The employee referred defendant to the owner of the shop. Defendant negotiated with the owner, traded in the five tires from the warehouse, and received a $375 credit toward the purchase of the B.F. Goodrich tires. Before finalizing the purchase, defendant spoke with one of his colleagues and discussed that he was thinking about buying the B.F. Goodrich tires. Defendant's colleague wondered how he was able to afford such expensive tires and defendant indicated that Trombley Tire was giving him a good deal because he had solved several bad check cases for the shop.

The day after defendant purchased the B.F. Goodrich tires, Trombley Tire sold four of the five tires it had acquired from defendant to one of its customers. Later that month, investigators with the Seneca County Sheriff's Department retrieved the fifth tire from Trombley Tire, as it had not yet been sold.

According to defendant's statement, in January 2006, he spoke with a co-worker who "told me that Jim Larson apparently did not have the authority to tell us we could take anything from the warehouse and that it needed to be put back in there." When defendant learned this, he promptly returned the boat and the filing cabinet to the new storage facility. Defendant then attempted to repurchase the five tires he had previously traded in, but was told that they had already been sold.

On January 24, 2006, defendant went to another tire shop to purchase replacement tires, but was informed by the service manager that the tires defendant desired were no longer in stock. The service manager convinced defendant to purchase five comparable tires -- at a cost that exceeded the trade-in value of the tires he removed from the warehouse. The same day defendant purchased these tires he placed them in the new storage facility beneath other objects.

A little over a week later, in the early morning hours of February 3, 2006, a fire broke out at the new storage facility. Defendant was only one of four individuals who had keys to the facility. An investigator with the New York State police interviewed defendant the following day. Defendant fully cooperated with the investigator and explained he had no information pertaining to the fire but admitted that he had removed property from the old warehouse facility. The investigator prepared a type-written statement, signed by defendant, detailing the information provided to him during the interview. Defendant described the property he removed with Larson's permission and explained that he had returned it to the new storage facility once he learned that Larson did not have the authority to dispose of the property.

Two other investigators also interviewed defendant. According to one of these investigators, defendant orally told him that Larson did not directly state, but only implied, that the other deputies could take property from the old warehouse for themselves.

Following this lengthy investigation, a grand jury indicted defendant for one count of Petit Larceny (Penal Law § 155.25). Prior to trial, he requested a dismissal of the indictment. Defendant argued that he honestly believed that he could take the property and that the People's failure to properly instruct the grand jury on the good-faith claim of right defense unfairly prejudiced him (see Penal Law § 155.15 [1]). County Court reviewed the grand jury minutes and denied defendant's motion. The court held that the claim of right defense was inapplicable because defendant could not assert that he had at any time owned or possessed the property procured from the storage facility. The case proceeded to trial and defendant, both at the conclusion of the People's case and at the charge conference, requested that County Court instruct the jury on the claim of right defense. County Court denied the requests.

The jury found defendant guilty of petit larceny and he appealed. At the Appellate Division, defendant argued for both a reversal of the conviction and a dismissal of the indictment. A divided Appellate Division reversed defendant's conviction and ordered a new trial, concluding that there was a reasonable view of the evidence that would allow a jury to find that defendant had a good-faith claim of right to the property he removed from the warehouse (60 AD3d 1279 [4th Dept 2009]). The dissenting justices, on the other hand, held that no reasonable view of the evidence supported this defense (id.). The court did not address defendant's argument concerning the sufficiency of the legal instructions given to the grand jury. A judge of this Court granted the People leave to appeal and we now affirm.*fn1

Our analysis begins with Penal Law § 155.15 (1), which provides "[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." However, in evaluating the constitutionality of this statute, we have held that a good-faith claim of right is properly a defense -- not an affirmative defense -- and thus, "the people have the burden of disproving such defense beyond a reasonable doubt" (Penal Law § 25.00 [1]; see People v Green, 5 NY3d 538, 542 [2005], citing People v Chesler, 50 NY2d 203, 208-210 [1980]).

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 (see People v Butts, 72 NY2d 746, 750 [1988]; People v Steele, 26 NY2d 526, 529 [1970]; see also, Mathews v United States, 485 US 58, 63 [1988] ["a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor"]). A failure to do so constitutes reversible error (see People v Watts, 57 NY2d 299, 301 [1982]). Of course, it is fundamental that a "jury may accept portions of the defense and prosecution evidence or either of them" (People v Asan, 22 NY2d 526, 530 [1968]). "Therefore, inconsistency in claimed defenses or even between a defendant's testimony and a defense 'should not deprive [the] defendant of the requested charge' if the charge would otherwise be warranted by the evidence" (Butts, 72 NY2d at 750, quoting People v Padgett, 60 NY2d 142, 146 [1983]).

Applying these principles, we find that there was evidence in the record to support defendant's good-faith claim of right defense. We note that defendant's statement, if credited, establishes that Larson, one of the highest ranking officials in the Seneca County Sheriff's Department, gave defendant and his colleagues permission to take whatever property they wanted. Indeed, it also indicates that two of his colleagues also relied on Larson's representation and took property, and that Larson procured several items of property for himself as well. Moreover, the evidence demonstrates that the sheriffs ...


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