(dissenting). We respectfully dissent
because in our view, County Court properly denied defendant’s request to charge the jury on the defense of claim of right. We cannot agree with the majority that there is a reasonable view of the evidence, viewed in the light most favorable to defendant (see People v Banks, 76 NY2d 799, 800 [1990]), that would enable a jury to find that defendant took property from the surplus warehouse of the Seneca County Sheriffs Department “under a claim of right made in good faith” (Penal Law § 155.15 [1]; see People v Cunningham, 12 AD3d 1131, 1132 [2004], lv denied 4 NY3d 829, 5 NY3d 761 [2005]; People v Geppner, 122 AD2d 394, 396 [1986]; cf. People v Ace, 51 AD3d 1379 [2008], lv denied 11 NY3d 733 [2008]).
Defendant offered no direct evidence to support his alleged belief that he had the authority or right to take the property (cf. Ace, 51 AD3d at 1380). Indeed, we note that the evidence on which the majority relies to support defendant’s alleged belief is a statement made by defendant to the police in which he stated, “[The Undersheriff] told us that he was taking a canoe home and he told us we could take what we want. [The Undersheriff] also took some old military lights and an old electric lawn mower. I took a Jon boat, a storage shelf and five 235 75R tires. I could not use the tires on my Ford F-150 pickup truck, so I took them to Trombley’s in Seneca Falls and I traded them towards new tires for my truck.” Notably, defendant did not inform the police that he believed that he had the right to take the property, nor did he state that he believed that the Under-sheriff had the authority to give permission to take the property. Moreover, there was no evidence that the property in question had been abandoned, which renders this case distinguishable from People v Baroody (59 AD3d 111 [ 2009]). Rather, the property here was surplus property of the Seneca County Sheriff’s Department that was being stored in a warehouse.
Although the majority relies in part on evidence that Sheriffs deputies used their personal vehicles to perform departmental duties to support its conclusion that such evidence provided a possible justification for defendant’s actions, we cannot agree that such evidence supports that conclusion. The Undersheriffs statement that defendant could take what he wanted from the *1282warehouse was not limited to items that defendant might use in the course of his professional duties, and there is nothing in the record to suggest that defendant took the property in question, including a boat and tires, for use in that capacity. In fact, the tires did not fit his personal vehicle, and he traded them in for new tires. In sum, there is no reasonable view of the evidence on this record to enable a jury to find that defendant, a Sheriffs deputy charged with enforcing the law, had a good faith belief that he had the right to take the property in question for his personal use and benefit. We therefore would affirm the judgment of conviction and would remit the matter to County Court for proceedings pursuant to CPL 460.50 (5). Present—Hurlbutt, J.P., Smith, Fahey, Peradotto and Pine, JJ.