New York Criminal Lawyer Blog
The Facts:
On 7 December 2001, defendant and two acquaintances approached a man as he was walking with his friends in Queens, New York. Defendant held out his hand and that man, believing that the stranger was attempting to greet him, returned the gesture by slapping him “five.” A New York Criminal Lawyer said the defendant told the man, however, that he did not want a greeting; he made clear that he wanted the man’s compact disc player. Defendant snatched the player out of the man’s hand, walked away and allegedly began listening to the “Busta Rhymes” CD in the disc player.
The man followed defendant, repeatedly asking for his disc player back, at which time one of defendant’s acquaintances, codefendant, approached the man and told him to “run his pockets”, meaning, to give co-defendant his money. The man told co-defendant he did not have any money and then turned to continue following defendant, whereupon co-defendant repeatedly punched the man from behind, causing a laceration on the ear.
Shortly thereafter, the man alerted a passing police car and identified defendant and his acquaintances as having taken his disc player and punched him. A New York Criminal Lawyer said the police arrested defendant at the scene and recovered the disc player. Defendant and his co-defendant were charged with two counts of robbery in the second degree — aided by another person actually present, and causing physical injury, as well as criminal possession of stolen property in the fifth degree.
In a prosecution for robbery of a specific chattel, is a defendant who in good faith believed that the property was his entitled to a “claim-of-right” jury instruction? Both because the Legislature has limited the availability of the statutory claim-of-right defense to prosecutions for larceny by trespass or embezzlement and because public policy considerations militate against encouraging the use of forcible self-help to recover property, the court concludes that he is not.
The Ruling:
Penal Law provides that “in 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 one landmark case, however, the court held that section 155.15 was unconstitutional insofar as it made a good-faith claim of right an affirmative defense because to do so impermissibly shifted the burden onto the defendant to disprove the element of intent.
A New York Drug Possession Lawyer said the court’s holding recognized that a good-faith claim of right negates larcenous intent, otherwise, a claim of right would not impermissibly shift the burden of proving an essential element of the crime and could remain an affirmative defense. Indeed, larceny is committed when one wrongfully takes, obtains or withholds property from an owner thereof with intent to deprive the owner of it, or appropriate it to oneself or another. Owner is defined in Penal Law as one who has a right to possession [of the property taken] superior to that of the taker, obtainer or withholder.
The current larceny statute provides simply that “a person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof”. The statute, however, cannot properly be read to require merely the intent to take property, rather than the intent to take property from a person with a superior right to possession.
It is clear that when the Legislature amended the statute and eliminated the reference to the intent to take property from its owner, it meant no substantive change to larceny’s intent element but only simplified the definition of larceny and eliminated the distinction among different types of theft. Moreover, when there is a single mens rea requirement in a criminal statute, it is presumed to apply to every element of the offense. Thus, to commit larceny, a larcenous actor must act with the “intent” to take property “from an owner thereof”.
Indeed, because the prosecution must prove beyond a reasonable doubt that the defendant intended to take property from someone with a superior right to possession, a good-faith but mistaken claim of right might defeat a robbery prosecution. And, as here, a defendant is, of course, free to make that argument to the jury.
However, simply because a jury might be convinced by a claim-of-right argument, it does not follow that a claim-of-right charge, derived from a statutory defense limited to certain types of larceny, is also available to defendants in robbery prosecutions. Such an instruction by the court, over and above an instruction on the element of intent, unquestionably aids the defendant by underscoring one aspect of the proof, or lack of proof. The Legislature did not provide that additional assistance where the defendant employs physical force.
Moreover, the jury convicted the defendant of second-degree robbery, even though the lesser included third-degree robbery charge was also available. Hence, defendant is foreclosed from challenging the court’s refusal to charge the more remote lesser included offense of petit larceny, if indeed such a charge was available on the facts.
Accordingly, defendant’s contentions regarding the court’s responses to jury notes are without merit; the decision is affirmed.
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