RIOS, JOHN E., PEOPLE v ( 2013 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    223
    KA 11-01825
    PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND WHALEN, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    JOHN E. RIOS, DEFENDANT-APPELLANT.
    ROBERT M. PUSATERI, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    JOHN E. RIOS, DEFENDANT-APPELLANT PRO SE.
    MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Niagara County Court (Sara S.
    Sperrazza, J.), rendered May 5, 2011. The judgment convicted
    defendant, upon a jury verdict, of grand larceny in the fourth degree,
    aggravated unlicensed operation of a motor vehicle in the first
    degree, driving while intoxicated, a class E felony, criminal contempt
    in the second degree, aggravated unlicensed operation of a motor
    vehicle in the second degree and petit larceny (two counts).
    It is hereby ORDERED that the judgment so appealed from is
    unanimously modified on the facts by reversing that part convicting
    defendant of grand larceny in the fourth degree under count seven of
    the indictment and dismissing that count, and as modified the judgment
    is affirmed.
    Memorandum: Defendant appeals from a judgment convicting him
    upon a jury verdict of one count each of grand larceny in the fourth
    degree (Penal Law § 155.30 [8]), aggravated unlicensed operation of a
    motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3]
    [a] [iii]), driving while intoxicated as a felony (§§ 1192 [3]; 1193
    [1] [d] [4] [i]), criminal contempt in the second degree (Penal Law §
    215.50 [3]), and aggravated unlicensed operation of a motor vehicle in
    the second degree (Vehicle and Traffic Law § 511 [2] [a] [ii]), and
    two counts of petit larceny (Penal Law § 155.25). Contrary to
    defendant’s contention, County Court properly denied his motion to
    sever those counts of the indictment relating to the incidents
    occurring on May 2009 from those counts relating to the incidents
    occurring on September 2009 because he failed to show “good cause for
    severance” (People v Gaston, 100 AD3d 1463, 1465; see CPL 200.20 [3]).
    Here, “the evidence as to the [May and September 2009 incidents] was
    presented separately and was readily capable of being segregated in
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    KA 11-01825
    the minds of the jury. The incidents occurred on different dates and
    the evidence as to each incident was presented through entirely
    different witnesses” (People v Ford, 11 NY3d 875, 879), and defendant
    failed to establish that there was a “ ‘substantial likelihood’ that
    the jury would be unable to consider the proof of each offense
    separately” (People v Santana, 27 AD3d 308, 309, lv denied 7 NY3d
    794). Moreover, the fact that defendant was acquitted of three
    charges “indicates that the jury was able to consider the proof
    concerning each count separately” (Gaston, 100 AD3d at 1465).
    Defendant also failed to make a “convincing showing” that he had
    important testimony to provide concerning the September 2009 incidents
    and a strong need to refrain from testifying as to the May 2009
    incidents (People v Lane, 56 NY2d 1, 8 [internal quotation marks
    omitted]). Defendant’s burden to establish that the court abused its
    discretion in denying the severance motion was “a substantial one”
    (People v Mahboubian, 74 NY2d 174, 183), and he did not meet that
    burden here.
    We agree with defendant, however, that the verdict with respect
    to the grand larceny in the fourth degree count (Penal Law § 155.30
    [8]) is against the weight of the evidence, and we therefore modify
    the judgment accordingly. The conviction of that crime was based upon
    defendant’s alleged theft of his former girlfriend’s Jeep. The record
    establishes that, in May 2009, defendant’s relationship with his
    former girlfriend had deteriorated. Consequently, defendant agreed to
    leave his girlfriend’s house and never return if she “sign[ed] that
    [Jeep] over to him” and gave him the title to the Jeep. The
    girlfriend agreed and signed over the title to defendant. Defendant
    packed up the Jeep, drove around the block, and returned to the house
    10 minutes later. Because defendant had violated their agreement, the
    girlfriend told defendant that “the deal was off,” took the title out
    of the Jeep without defendant’s knowledge, and drove a different car
    to a friend’s house. The girlfriend left the Jeep at her house with
    defendant. It is undisputed that the girlfriend did not remove the
    license plates or proof of insurance from the Jeep, nor did she remove
    the Jeep’s keys from the house. The girlfriend also testified that
    defendant believed that he had a right to possess the Jeep and that
    she did not inform him otherwise.
    Defendant was arrested for petit larceny and driving while
    intoxicated on May 17, 2009, and he remained in jail until September
    16, 2009, at which time he returned to the girlfriend’s house.
    Defendant observed a “for sale” sign on the Jeep and demanded that the
    girlfriend remove it because she was not allowed to sell “his” Jeep.
    The girlfriend finally convinced defendant to leave the house but, the
    next morning, defendant took the Jeep without her knowledge. That
    night defendant drove the Jeep while intoxicated and rolled it onto
    its side. Defendant was thereafter arrested for driving while
    intoxicated and for stealing the Jeep.
    It is well established that “a good faith claim of right is
    properly a defense—not an affirmative defense—and thus, ‘the people
    have the burden of disproving such defense beyond a reasonable
    doubt’ ” (People v Zona, 14 NY3d 488, 492-493, quoting Penal Law §
    -3-                           223
    KA 11-01825
    25.00 [1]; see § 155.15 [1]). A defendant is not required to
    “establish that he previously owned or possessed the property at issue
    in order to assert the claim of right defense” (Zona, 14 NY3d at 494).
    The test is whether a defendant had a “subjective[,] good faith”
    belief that he or she had a claim of right to the relevant property,
    not whether defendant’s belief was reasonable (id. at 493). Based on
    the testimony of defendant’s former girlfriend, which is the only
    evidence that relates to the claim of right issue, we conclude that it
    was unreasonable for the jury to conclude that the People established
    beyond a reasonable doubt that defendant did not have a subjective,
    good faith basis for believing that the Jeep was his, and thus the
    verdict with respect to the grand larceny in the fourth degree count
    is against the weight of the evidence (see generally People v
    Danielson, 9 NY3d 342, 348). The only support for that count is the
    girlfriend’s statement to defendant that the agreement to transfer
    title to him was “off.” The girlfriend, however, then left the house
    without saying anything else about the Jeep, left the keys to the Jeep
    in the house, and took the title out of the Jeep without informing
    defendant that she had done so. Although, arguably, the girlfriend’s
    statement to defendant retracting the agreement to transfer title
    should have indicated to defendant that the Jeep was not his, that
    evidence did not establish beyond a reasonable doubt that defendant
    did not have a subjective, good faith basis for believing that the
    Jeep was his (see generally Zona, 14 NY3d at 492-493).
    We have reviewed defendant’s contentions in his pro se
    supplemental brief and conclude that none warrants reversal or further
    modification of the judgment.
    Entered:   June 7, 2013                         Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 11-01825

Filed Date: 6/7/2013

Precedential Status: Precedential

Modified Date: 10/8/2016