People v. Delee , 482 N.Y.S.2d 312 ( 1984 )

—Appeal by defendant from a judgment of the Supreme Court, Suffolk County (D’Amaro, J.), rendered July 28, 1983, convicting him of grand larceny in the third degree, upon a jury verdict, and imposing sentence.

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 of the Penal Law of a “claim of right made in good faith” was an affirmative defense (see People v Chesler, 50 NY2d 203; People v Ricchiuti, 93 AD2d 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 F2d 1210, cert den_US_, 104 S Ct 2344; People v Ford, 62 NY2d 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.