        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1311
KA 12-00280
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

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.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered August 10, 2011. The judgment convicted
defendant, upon a jury verdict, of grand larceny in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted.

      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
NY2d 620, 621), 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 NY3d 342, 349), we conclude that the verdict is not against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495).

     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 NY3d 538, 542), however, the
Court of Appeals in People v Chesler (50 NY2d 203, 209-210) “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
                                 -2-                          1311
                                                         KA 12-00280

v Zona, 14 NY3d 488, 492-493, quoting § 25.00 [1]; see People v Hurst,
113 AD3d 1119, 1120, lv denied 22 NY3d 1199, reconsideration denied 23
NY3d 1021). 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 NY3d at 542), thereby
requiring reversal of the judgment and a new trial even in the absence
of preservation (see generally People v Becoats, 17 NY3d 643, 651,
cert denied ___ US ___, 132 S Ct 1970; People v Patterson, 39 NY2d
288, 295-296, affd 432 US 197).

     In light of our determination that defendant is entitled to a new
trial, we do not reach defendant’s remaining contentions.




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
