Appeal from a judgment of the District Court of Suffolk County, First District (Stephen M. Behar, J.), rendered on May 20, 2004. The judgment convicted defendant, upon a jury verdict, of petit larceny.

Judgment of conviction affirmed.

Following a jury trial, defendant was found guilty of petit larceny (Penal Law § 155.25) for retaining $220 in fares paid to him by passengers on a bus that he was driving on behalf of complainant Express Bus Tours. The court below properly refused to instruct the jury upon the defense that the money was taken in good faith under a claim of right (Penal Law § 155.15 [1]). It should be noted that in People v Chesler (50 NY2d 203 [1980]), the Court of Appeals declared that Penal Law § 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" (People v Green, 5 NY3d 538, 542 [2005]). Viewed in the light most favorable to the defendant (see People v Banks, 76 NY2d 799 [1999]), the evidence was not sufficient to support this defense (see People v Geppner, 122 AD2d 394 [1986]). Where "no reasonable view of the evidence would support a finding of the tendered defense, the court is under no obligation to submit the question to the jury" (People v Watts, 57 NY2d 299, 301 [1982]). The good faith claim of right defense was not even logical on the facts adduced at trial. Defendant testified that he believed he would not be paid because of a document that he signed, agreeing to a $200 deduction from his pay to cover the cost of a pre-employment physical should he fail to complete six months of employment. He testified that he believed that his employer was going to enforce this agreement. From this testimony, the conclusion is inescapable that he took the money he received from passengers precisely to avoid the consequences of the agreement's enforcement (see e.g. J.W. Matthews & Company v The Employer's Liability [*2]Assurance Corp., Limited, 127 App Div 195 [1908], affd 195 NY 593 [1909]).

In this regard, it must be noted that, in any event, the "right" that is contemplated in a good faith claim of right defense is a right to possession or disposal of some specific thing (see e.g. People v Chesler, 50 NY2d 203, supra [escrow funds]; People v Jones, 142 App Div 180 [1911] [livestock]). There can be no "true claim of right to . . . fungible cash - the bills themselves - [that defendant] took to satisfy an alleged debt" (People v Green, 5 NY3d at 544). This right has never been construed to permit aggrieved employees to pay themselves out of general funds from the till. Both administrative agencies, such as the state and federal Departments of Labor, and a civil court system exist to deal with pay disputes. On "policy grounds," it is inappropriate "to expand the area of permissible self-help" as defendant herein proposes (People v Green, 5 NY3d at 543; see generally People v Reid, 69 NY2d 469, 476-477
[1987]).
Defendant's contention that the jury should have been charged with Labor Law § 193 is without merit. Defendant admittedly did not even know of the statute's existence. Counsel argued only that the existence of this provision lent credence to defendant's train of thought in retaining the money he collected as his pay, not that defendant relied upon it in any way. The statute merely lists acceptable deductions from pay and their permissible circumstances, and does not authorize self-help to address a wrongful deduction. Labor Law § 193 is irrelevant to this matter, and therefore, the court properly refused to charge the jury with this provision.

Rudolph, P.J., Angiolillo and McCabe, JJ., concur.
Decision Date: June 22, 2006