Whether you are charged with a misdemeanor Petit Larceny, New York Penal Law 155.25, or a more serious felony including Grand Larceny in the Fourth, Third or even greater degree, New York Penal Law 155.30 and 155.35 respectively, there are certain common elements that prosecutors must establish beyond a reasonable doubt. While a conviction for PL 155.25 may “only” carry a sentence of up to one year in jail where as a conviction for PL 155.30 or PL 155.35 may be punishable by as great as four or seven years respectively, each arrest stemming from an Article 155 allegation requires the same degree of attention. The hurdle of legal sufficiency must always be overcome by prosecutors and challenged by your criminal defense attorney. This blog entry will address one of those elements or mandatory traits of a viable PL 155.25, PL 155.30, PL 155.35, PL 155.40 or PL 155.42 arrest. That is, it is it enough for a District Attorney to establish your intent to temporarily use another’s property or must they establish your intent to permanently deprive an owner of the same?
In People v. Allen, 2015 NY Slip Op 7867 – NY: Appellate Div., 3rd Dept. 2015, the defendant was accused of multiple crimes. The relevant offense to our discussion here was the allegation that he committed the crime of New York Penal Law 155.30, Grand Larceny in the Fourth Degree. Not a value based theft where the property value exceeded $1,000, but was $3,000 or less, the subsection charged here related to the defendant’s taking the complainant’s wallet from his pocket. In these scenarios, it is an “automatic” felony to remove property from another person irrespective of the worth or dollar amount of that property. A similar offense occurs if property is stolen, such as a wallet, and the property is a debit or credit card (even if the accused was not aware there was a debit or credit card inside the wallet). A class E felony, these crimes are punishable by as much as one to four years in a New York State prison even for a first time offender.
In defense of the charge of PL 155.30, the defendant stated in substance that he was intoxicated and playing a game. In other words – or examined from a legal perspective – it was not the defendant’s intent to permanently deprive the rightful owner of the wallet. Instead, the taking and possession was only a temporary one. While this in fact may be a potential defense, it is a fact based one. That is, an accused would have to set forth that defense and a finder of fact (a judge or jury) would then have to conclude if it was true (the burden of proof never changes, however).
From the court:
Defendant initially argues that the convictions for grand larceny in the fourth degree and petit larceny were against the weight of the evidence as the proof did not show that he took the wallet with the requisite “intent to deprive another of property or to appropriate the same to himself or to a third person” (Penal Law § 155.05 [1]; see Penal Law §§ 155.00, 155.25, 155.30 [5]). The proof must show more than “an intent temporarily to use property without the owner’s permission, or even an intent to appropriate outright the benefits of the property’s short-term use” (People v Jennings, 69 NY2d 103, 119 [1986]). Rather, a defendant must aim “to permanently deprive the victim[] of the property” (People v Medina, 18 NY3d 98, 105 [2011]; see People v Jennings, 69 NY2d at 118; People v Jacobs, 52 AD3d 432, 433 [2008], lv denied 11 NY3d 833 [2008]; see also People v Parker, 121 AD3d 1190, 1191 [2014]). “Larcenous intent is rarely susceptible of proof by direct evidence, and must usually be inferred from the circumstances surrounding the defendant’s actions” (People v Russell, 41 AD3d 1094, 1096 [2007], lv denied 10 NY3d 964 [2008] [citations omitted]; see People v Phoenix, 115 AD3d 1058, 1060 [2014], lv denied 23 NY3d 1024 [2014]).
Despite the defendant’s best efforts, he may have been correct on the law – intent to permanently deprive is key – but lacked the credible facts to support his claim. Obviously, each case will rise and fall on the credible evidence presented, but understanding the law is crucial. It may very well be that temporary possession is central to your defense.
To learn about the New York Penal Law Article 155 crimes (Petit Larceny and Grand Larceny) and New York Penal Law Article 165 crimes (Criminal Possession of Stolen Property), please click through the links here or directly on the sites listed below.
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