Opinion
01-02-2015
The PEOPLE of the State of New York, Respondent, v. Allemah FORBES–HAAS, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY AND SCONIERS, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting her upon a jury verdict of grand larceny in the third degree (Penal Law § 155.35[1] ). Contrary to defendant's contention, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we conclude that it is legally sufficient to support the conviction. Further, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We agree with defendant, however, that County Court's claim of right charge improperly shifted the burden of proof to defendant, and we therefore reverse the judgment and grant a new trial. Penal Law § 155.15(1) provides that, “[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.” As noted in People v. Green, 5 N.Y.3d 538, 542, 807 N.Y.S.2d 321, 841 N.E.2d 289, however, the Court of Appeals in People v. Chesler, 50 N.Y.2d 203, 209–210, 428 N.Y.S.2d 639, 406 N.E.2d 455 “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.” Rather, “a good faith claim of right is properly a defense—not an affirmative defense—and thus, ‘the [P]eople have the burden of disproving such defense beyond a reasonable doubt’ ” (People v. Zona, 14 N.Y.3d 488, 492–493, 902 N.Y.S.2d 844, 928 N.E.2d 1041, quoting § 25.00[1]; see People v. Hurst, 113 A.D.3d 1119, 1120, 978 N.Y.S.2d 556, lv. denied 22 N.Y.3d 1199, 986 N.Y.S.2d 420, 9 N.E.3d 915, reconsideration denied 23 N.Y.3d 1021, 992 N.Y.S.2d 804, 16 N.E.3d 1284 ). Here, however, the court instructed the jury that “defendant has the burden of proving that she took, withheld or obtained the property under a claim of right made in good faith by a preponderance of the evidence.” We conclude that the court committed a mode of proceedings error when it shifted the burden onto defendant to disprove the element of intent (see Green, 5 N.Y.3d at 542, 807 N.Y.S.2d 321, 841 N.E.2d 289 ), thereby requiring reversal of the judgment and a new trial even in the absence of preservation (see generally People v. Becoats, 17 N.Y.3d 643, 651, 934 N.Y.S.2d 737, 958 N.E.2d 865, cert. denied ––– U.S. ––––, 132 S.Ct. 1970, 182 L.Ed.2d 822 ; People v. Patterson, 39 N.Y.2d 288, 295–296, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd. 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 ).
In light of our determination that defendant is entitled to a new trial, we do not reach defendant's remaining contentions.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.