In People v. Zona (Ct. App. 5/6/2010) (Ciparick, J.), the Court of Appeals held 5-2 that the defendant, who was charged with Petit Larceny, was entitled to a good faith claim-of-right charge.
The defendant was a sheriff's deputy. One day, the Undersheriff (a high-ranking official in the Sheriff's Office) ordered the defendant and several of his colleagues to transport seized property from an old warehouse to a new one. They used their personal vehicles. The Undersheriff told the defendant and his colleagues that they could take whatever property they wanted. (Most of the stuff being transported, it turns out, was junk.) The Undersheriff himself took a canoe home. The defendant took tires, which he traded in to a local tire store for tires that fit his vehicle. Later, the deputies learned that the Undersheriff did not have authority to tell them that they could take the items. The canoes, file cabinets, and other property were returned, except for the defendant's tires, which had, by then, been sold to other customers of the tire store. The defendant bought a comparable set of tires and put them in the new warehouse. This series of events unraveled after there was a fire at the new warehouse and the defendant, who was one of several deputies with keys, told investigators about the tires. (There was no allegation that the defendant was involved with the fire.)
The Court of Appeals held that the defendant was entitled to present the defense of good faith claim of right. If credited, the defendant's statement established that the Undersheriff, a high-ranking official, gave him permission to take property from the old warehouse. Since good faith, and not reasonableness, is the test, it is immaterial whether the Undersheriff in fact had the authority to dispose of county property in the manner that he did. Moreover, the statute does not require that a possessor have previously owned or possessed the property.
The People argued that there were inconsistencies in the defendant's story and that these negated the defendant's good faith belief. The court responded that these were issues to be flushed out at trial. The only issue for the court was the defendant's entitlement to a jury charge on the defense.
In dissent, Judge Pigott argued that applying the defense in this case was "irrational" and therefore the defendant was not entitled to the charge. Judge Pigott pointed out that the defendant lied numerous times about the tires and where and how he got them. The dissent also found that the Undersheriff was not the "owner" of the property and therefore the defendant could not rely on his representation as a basis for claim of right. (LC)
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