Opinion
December 3, 1984
Appeal from the Supreme Court, Suffolk County (D'Amaro, J.).
Judgment affirmed. This case is remitted to the Supreme Court, Suffolk County, for further proceedings pursuant to CPL 460.50 (subd 5).
The trial court incorrectly instructed the jury that the defense set forth in subdivision 1 of section 155.15 Penal of the Penal Law of a "claim of right made in good faith" was an affirmative defense (see People v. Chesler, 50 N.Y.2d 203; People v Ricchiuti, 93 A.D.2d 842). This charge was given at defendant's request, however, and, therefore, he has waived his right to complain (see United States v. Moon, 718 F.2d 1210, cert den ___ US ___, 104 S Ct 2344; People v. Ford, 62 N.Y.2d 275).
Furthermore, we note that the testimony of both the victim and defendant was sufficient to establish that the market value of the stolen property was at least $250. Accordingly, the trial court properly submitted a charge of grand larceny in the third degree to the jury. Titone, J.P., Lazer, Bracken and Boyers, JJ., concur.