The opinion of the court was delivered by: Pigott, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
In this appeal, we address the relation between a claim of right defense and a mistake of fact defense in the second-degree robbery context. We conclude that, in the circumstances of this case, the two defenses are equivalent.
The incident underlying this appeal occurred after defendant Debra Pagan hailed a livery cab from a bus stop at 116th Street and Madison Avenue, in Manhattan. Defendant asked the cabdriver to take her to 109th Street and Lexington Avenue, and she told him that she had only four dollars on her. Although a minimum fare of six dollars applied in the area, the cabdriver agreed to the lower amount, because defendant appeared ill.
There then ensued a rather bizarre series of cash transactions. When they arrived at the requested destination, defendant gave the cabdriver a dollar bill and a $20 bill (this from the person who had said she had only four dollars for the trip). The cabdriver returned the dollar to defendant, telling her that he did not need it to make change. He then gave her $16 in change. Defendant insisted that she was entitled to $17 in change. The cabdriver pointed out to defendant that he had returned the dollar she had given him, before giving her the correct change from $20.
Defendant demanded that the cabdriver return the $20 bill, which he did. Then, instead of returning the $16 change and restarting the transaction, defendant offered the cabdriver $4 from the $16 he had given her as change. The cabdriver refused to take the money, telling defendant that she was paying him from his own money. Defendant replied that the cabdriver was confusing her, and took the $4 back. She now had her money and the cabdriver's money.
At this time, the security locks on the livery cab were active, preventing defendant from leaving the car. The cabdriver asked defendant to return the $16 he had given her, offering to forgive the $4 she owed him. Defendant refused; but, when the cabdriver told defendant that he would take her to the police precinct, she placed the $16 on the console between the front seats, and the cabdriver then unlocked the doors. However, defendant refused to leave the cab, accusing the cabdriver of stealing from her.
The cabdriver began to drive to the nearest police precinct. He had the $16 in his right hand. There was no partition between the front and rear seats of the livery cab. Defendant leaned forward and tried to grab the $16, scratching and biting the cabdriver's hand in the process. The cabdriver held on to the money.
At the corner of 107th Street and Lexington Avenue, the cabdriver stopped the car. Defendant said to the cabdriver, "Now you're going to see." She pulled out a knife, and demanded the money back. Seeing two police officers, the cabdriver attracted their attention, telling them that his passenger had a knife. When the officers approached the cab, defendant was in the back seat, clutching a knife.
Defendant was arrested and subsequently indicted on charges of attempted robbery in the first degree, attempted robbery in the second degree, criminal possession of a weapon in the third degree, assault in the third degree, and menacing in the second degree. She proceeded to a jury trial in Supreme Court.
Defendant did not testify or call any witnesses. At the close of evidence, defendant moved for dismissal of the attempted robbery counts under CPL 290.10, arguing that the People had failed to prove intent to take another's property. Supreme Court reserved decision on defendant's motion.
During the charge conference, the prosecutor asked Supreme Court to instruct the jury that claim of right is not a defense to robbery. Defense counsel objected to such a negative claim of right instruction, insisting that the defense would not be asking for a claim of right instruction in the first place. Instead, defense counsel requested what she called a mistake of fact instruction, namely that the jury must find defendant not guilty of attempted robbery if it concluded that she had been acting under a mistaken belief that the $16 in change in fact belonged to her, such that she could not have formed the intent to steal it. Supreme Court denied defendant's request, reasoning that a claim of right instruction would not be permitted, and that there was no distinction in the present case between a claim of right instruction and a mistake of fact instruction. Defense counsel was permitted to argue mistake of fact to the jury, but would have to do so without the support of a jury charge.
In summation, defense counsel argued that defendant had been confused and thought the money she was trying to take was her own. The prosecutor emphasized that defendant had no right to resort to physical force to take ...