Claim of Right Defense Should Have Been Charged

In People v Ace,2008 NY Slip Op 04162 [4th Dept 5/2/08], the Court reversed a larceny conviction in the interest of justice, holding that County Court erred in failing to charge the jury that his claim of right was a defense to the count of grand larceny, where

Defendant testified at trial that he was instructed by one of the co-owners of the company that employed him to take the allegedly stolen rails to the scrap yard, and that testimony was corroborated in part by one of defendant's coworkers. Viewing the evidence in the light most favorable to defendant, as we must (see People v Banks, 76 NY2d 799, 800; People v Cunningham, 12 AD3d 1131, 1132, lv denied 4 NY3d 829, 5 NY3d 761), we conclude that there is a reasonable view of the evidence that would enable a jury to find that defendant took the rails under a claim of right (see generally People v Moscato, 251 AD2d 352, 352-353; People v Ricchiuti, 93 AD2d 842, 844).

Considering that the instruction was not requested by counsel, that is quite a win for Mary Davision.