Criminal Possession of Stolen Property

Published on: July 1, 2012

Saland Law PC Update: Top Criminal Defense Results, Super Lawyers and the Manhattan District Attorney Associates

Over the past few months, Saland Law PC has enjoyed success both in the courtroom and in the professional arena. The New York criminal defense attorneys and former Manhattan prosecutors at Saland Law PC have diligently and successfully advocated for clients investigated and arrested for Grand Larceny, Criminal Possession of Stolen Property and similar theft crimes in Manhattan, Brooklyn, Queens, Westchester County and the much greater New York City region. Although past results do not guarantee future outcomes, Saland Law PC’s criminal lawyers obtained significant departures from initial indictment or arrest charges for numerous clients while also keeping those clients from serving state prison or local jail sentences. Some of these recent examples include: People v. XXXX – Client arrested for entering a school and stealing multiple laptop computers worth thousands of dollars. Charged with “D” felony Grand Larceny related activities, client ultimately received a non criminal and non incarceratory Disorderly Conduct violation.

People v. XXXX – Client worked at a major financial institution and was indicted for felony Grand Larceny in the Fourth Degree (an “E” felony) for stealing “secret scientific material” prior to retaining Saland Law PC. After search warrants were executed in an attempt to locate the “secret scientific material,” the prosecution sought incarceration on a felony plea. Saland Law PC’s criminal defense attorneys secured a misdemeanor without probation or prison. People v. XXXX – Client was alleged to have forged an employer’s name to a lease agreement while also using the employer’s credit card to make thousands of dollars in unauthorized purchases. Prosecutors believed that in addition to the credit card fraud, our client stole nearly $70,000 during the course of our client’s employment. Despite being identified in a lineup by employees of the store where the alleged credit card transactions occurred, the People ultimately agreed to permit the client to plea directly to a misdemeanor without probation or incarceration in lieu of an indictment on the felony Grand Larceny and related charges. Alternatively, the client was offered a deal whereby the client could plea to a felony, but later withdraw that plea to a potential non-criminal Disorderly Conduct violation if client followed certain rules. Although our client had faced Grand Larceny in the Third Degree (a “D” felony) and possibly greater felony Grand Larceny charges, our client avoided any felony conviction or incarceration. People v. XXXX – Client was alleged to have stolen credit cards from a restaurant the client frequented. Despite video showing what appeared to be our client taking the credit cards, the criminal defense attorneys at Saland Law PC successfully challenged the prosecution’s lack of a viable identification of our client. Ultimately, despite being charged with multiple “E” felony Grand Larcenies for theft of credit cards, our client received an ACD (adjournment in contemplation of dismissal) and our client’s record remained clean of any criminal convictions.

Published on: June 12, 2012

Recent Unexplained Possession of Stolen Property: The Ramifications of Certain Statements & Testimony in a New York Criminal Possession of Stolen Property Case

By Jeremy Saland

Although each case is unique and requires its own assessment, it is rarely, if ever, beneficial to speak to the police without a lawyer. You may think you are smarter or have the right answers to their questions, but you could be damning yourself and giving prosecutors the tools to make a conviction stick. Should you testify in your own defense in the Grand Jury or at trial, failure to consult with a criminal defense attorney can be equally dangerous. Cases in New York involving Criminal Possession of Stolen Property, Article 165 of the New York Penal Law, are certainly not immune from this pitfall. Whether you are charged with misdemeanor Fifth Degree Criminal Possession of Stolen Property (New York Penal Law 165.40) or the felony varieties of Fourth, Third, Second or First Degree Criminal Possession of Stolen Property (New York Penal Law 165.45, 165.50, 165.52 and 165.54 respectively), your statement or admission prior to consulting with a New York theft and stolen property attorney will likely leave you facing a more daunting defensive task. Implausible testimony at trial may compromise your liberty and legal predicament further. While any statement can be damning, this New York theft and larceny blog entry will address a principle in the New York criminal law called “unexplained or falsely explained possession of recently stolen property.”

In People v Mangual, 13 A.D.3d 734 (3rd Dept. 2004), the defendant was convicted after trial of Second Degree Burglary (New York Penal Law 140.25), Fourth Degree Grand Larceny (New York Penal Law 155.30) and Fifth Degree Criminal Possession of Stolen Property (New York Penal Law 165.40). The thefts all occurred when the defendant stole items from an apartment. At trial, a prosecution witness testified that he saw two bags with soccer logos left unattended on the street. Looking closer, a name appeared on the bag of a woman who lived in the neighborhood. The defendant drove up a short time later, picked up the bag and drove off. Before leaving, the defendant stated in substance that he was there for the bags. The witness jotted down the license plate number and spoke to the complainant who confirmed nobody had authority to take her property. Both the witness and the complainant then went to the complainant’s home and learned of the burglary.

Published on: May 29, 2012

Establishing Knowledge of Criminal Possession of Stolen Property: Understanding Circumstantial Evidence in a New York Penal Law Article 165 Arrest

By Jeremy Saland

A sister crime that is equal to Grand Larceny and Petit Larceny, but established through distinct elements in New York, is Criminal Possession of Stolen Property. Ranging from an “A” misdemeanor up to varying felonies, Criminal Possession of Stolen Property encompasses both actual possession of stolen property and constructive possession of the same. The latter of these types of possessions involve situations where an individual might have control over an area where the stolen property is recovered. For example, instead of cash, stolen credit cards or or other property being recovered from an accused’s pocket, that same property may still be attributable to the defendant if it is recovered from the accused’s nightstand or vehicle console.

Regardless of how one is alleged to possess stolen property or the value of that property, one must still have the requisite knowledge that one is possessing property that is stolen. After all, if your criminal defense attorney can argue that the $7,500 Breitling watch on your wrist may be stolen, but you possessed it without the requisite knowledge that it was stolen, then you have not perpetrated Criminal Possession of Stolen Property in the Third Degree in violation of New York Penal Law 165.50. So, if knowledge is an essential component or element to any Article 165 crime, how can prosectors establish and New York criminal defense attorneys defend against this knowledge element? Barring an admission that you knew you had possessed stolen property, what type of circumstantial evidence can be used against you or in support of an Assistant District Attorney’s claim?

Published on: May 12, 2012

Is Asportation (the Moving / Removing of Property) a Necessary Element of a New York Petit Larceny or Grand Larceny Shoplifting Arrest?

By Jeremy Saland

If you take a skirt, shoes or even groceries without paying from H & M, Saks Fifth Avenue or Whole Foods respectively, well, then, you must have committed a theft. Clearly, if you walked out of the store concealing the property or just without paying you are going to get arrested for Petit Larceny or Criminal Possession of Stolen Property, right? Well, what about if you never leave the store? What if the store security guard at Macys or Century 21 just tries to stop you and have you arrested before you ever even approached the exit? The police have come, you are embarrassed and now to make matters worse, you were given a Desk Appearance Ticket or DAT. Simply put, is removing the property from the store a necessary element of either Petit Larceny (New York Penal Law 155.25) or Criminal Possession of Stolen Property in the Fifth Degree (New York Penal Law 165.40)? And the answer is…

Asportation is the general concept of moving property from one place to another. In the context of NY PL 155.25 cases involving shoplifting, for example, this asportation idea is often misunderstood by those who are not criminal defense attorneys (that would be the vast majority of people). To better understand this concept, as well as to answer the question posed in the first paragraph, let’s review a relatively recent decision out of Westchester County.

Published on: April 7, 2012

Two NYC Attorneys Arrested in Alleged New York Criminal Tax Fraud Scheme: Understanding Tax Fraud & Stolen Property Crimes in New York

By Jeremy Saland

Not paying taxes is bad enough, but getting caught by the New York State Department of Taxation and Finance and then getting prosecuted by the Queens County District Attorney’s Office is far worse. Having represented numerous individuals for New York theft and tax fraud crimes, including one individual for alleged tax fraud crimes after wrongfully incurring a tax liability of $5 million, I know full well how aggressive prosecutors can be in their pursuit of making the State “whole.” Fortunately for that client, prosecutors agreed to accept forfeiture or re-payment of less than $2 million along with no incarceration or prison. Each case however, especially in these tumultuous economic times, is unique and arguably more difficult to resolve in such a manner. In fact, two New York City attorneys find themselves in a serious predicament, albeit with significantly less alleged fraud, and likely face a battle ahead.

According to the New York Law Journal, two attorneys, David Schnall and Ralph Duthely, were arrested and arraigned in Queens Criminal Court on numerous criminal charges including New York Criminal Possession of Stolen Property and New York Criminal Tax Fraud for failure to pay taxes over many years. Unrelated criminal acts, it is alleged that Schnall had a tax liability of $53,629 while Dudthely had a relatively smaller tax liability of $17,209. Although I am not familiar with Duthely’s counsel, Schnall is in the capable hands of John Diaz, a skilled practitioner whom I personally know having served alongside him for years in the Manhattan District Attorney’s Office.

Published on: March 8, 2012

Valuing Goods in a New York Grand Larceny & Stolen Property Case III: Assigning Value in an Illegitimate or “Free” Market

By Jeremy Saland

In this series of blogs we have been examining how the New York Criminal Courts determine the value of the allegedly stolen property at issue in a felony New York Criminal Possession of Stolen Property case or a New York Grand Larceny case. As New York criminal defense attorneys and former Manhattan prosecutors with significant experience in white collar and other larceny crimes throughout New York City, the surrounding boroughs and Westchseter, we understand how important it is to place an accurate value on stolen property. Prosecutors aim to give the highest value to property, because the higher the value the higher the degree of Grand Larceny charged; and of course, the higher the degree- say Grand Larceny in the Second Degree (NY PL 155.40) versus Grand Larceny in the Third Degree (NY PL 155.35)- the higher the potential punishment. In this final entry in this series on larceny and value, we want to examine how the NY criminal courts value property that has no real price on any legitimate market. For instance, what do courts do when the stolen property is a controlled substance? That’s right, what if someone steals your drugs (or something less “bad” too)!

The general standard in approaching this issue in a Criminal Possession of Stolen Property and Grand Larceny case is where the property in issue has no market value in the legitimate market, the market value in the illegitimate market may be used in determining the value. In other words, courts will look to the black market or ‘street price’ of the property. In truth, this is consistent with the original principle we discussed in the first blog of this series: “value” means the market value of the property at the time and place of the crime. It’s just that in the case of contraband, the market happens to be a potentially illegal or illegitimate one.

Published on: February 27, 2012

Valuing Stolen Property in a NY Grand Larceny Case Part II: Used Goods & Property

By Jeremy Saland

In a previous blog entry I began a series in which we tackled the important and sometimes complicated issue of determining the value of stolen goods in a New York Grand Larceny or Criminal Possession of Stolen Property criminal trial. Charges of Grand Larceny and Criminal Possession of Stolen Property based on the value of the alleged “ill gotten gains” can come in many different forms, throughout the boroughs of New York City (Manhattan, Brooklyn Bronx and Queens) as well as in the suburban counties (like Rockland and Westchester). That is, “property” is an all-inclusive title, which encompasses any good that has a value- a television, credit card, clothing or even a utility. For New York criminal defense attorneys and their clients, successfully challenging the value of property can make the difference between Grand Larceny in the Fourth Degree (NY P.L. 155.30), Grand Larceny in the Third Degree (NY P.L. 155.35), Grand Larceny in the Second Degree (NY P.L. 155.40) and Grand Larceny in the First Degree (NY P.L. 155.42). If the circumstance is right, it can also make the difference between being charged with a felony or a misdemeanor crime.

In the first entry of this series helping non-criminal lawyers understand “value,” we laid out the general rule that “value” means the market value of the property at the time and place of the crime. In this blog entry, I’d like to discuss how the courts determine the value of used goods, which tend to have a less clearly defined market value than newer property. Pursuant to New York Penal Law 155.20(1), in a Grand Larceny trial where the market value of the stolen property cannot be determined, the “replacement cost” of the property may be used to ascertain the value. For instance, in People v. Vientos, 79 N.Y.2d 771 (1991), the defendants were apprehended by the police while in possession of stolen computer equipment. What complicated the matter was that the brand (Commodore) of computer equipment in question had no resale market value (1984 is calling and they want their Commodore 64 back!). The parts were used and were no longer being sold in any stores. So how did the prosecution value the goods? At trial an expert testified as to the cost it would take to replace the stolen computer equipment. The “replacement cost” would be what it took for the victim to have a whole computer product again. The court went on to say that the prosecution did not have to show that there was a value on the black market for the equipment (i.e. what you could resell the parts for illegally). The expert’s alternative method of valuation was valid because he opined as to the replacement cost.

Published on: February 22, 2012

When Possessing a Stolen $5 Gift Card to Starbucks Becomes a Felony in New York: Understanding New York Penal Law 165.45(2)

By Jeremy Saland

As we’ve often mentioned, under the New York Penal Law (often called the New York Criminal Law or New York Criminal Code), the seriousness of a vast majority of larceny-related crimes is usually based not upon what type of property is stolen, but rather, the value of the stolen property in question. In limited circumstances, however, the type of property stolen can actually play a larger role in the charge a defendant will face than the property’s dollar value. Under New York Penal Law 165.45, it is a Class E felony to knowingly possess stolen property valued at more than $1,000, or stolen property that falls within a specific class of items. These items include: credit cards, debit cards, public benefit cards, firearms, motor-vehicles, religious items, and some pre-cursor chemicals used in the manufacture of methamphetamine (you do not often come across this last category very often). If a defendant is found to be in knowing possession of stolen property that falls within any of these categories, he or she can be charged with a felony, regardless of the stolen property’s dollar value.

While these items may seem plainly defined, your New York criminal defense attorney knows that in some instances, courts have allowed the scope of these terms to expand in unexpected directions. One specific instance of this can be seen in a decision rendered by the First Department Appellate Court in its interpretation of the term “debit card.” When most people think of what is meant by a “debit card,” their immediate thought is generally a card issued by a bank for withdrawing funds from one’s personal bank account. To others, “debit card, “credit card” and even “ATM card” are all interchangeable for practical every day purposes. Under New York law, however, courts have found that what can be considered a “debit card,” for the purposes of New York Penal Law 165.45(2), is not merely limited or constrained by our own definitions.

Published on: February 12, 2012

The Value of Stolen Property in a New York Grand Larceny Case: The Changing Value of Property Over Time

By Jeremy Saland

In the overwhelming amount of New York Grand Larceny or Criminal Possession of Stolen Property criminal cases, the value of the property stolen will play a significant role in the defendant’s charge. Under New York Penal Law 165.45, Criminal Possession of Stolen Property in the Fourth Degree, it is a Class E felony to knowingly possess stolen property with a value in excess of $1,000. Under New York Penal Law 155.30, Grand Larceny in the Fourth Degree, it is a Class E felony to steal property with a value in excess of $1,000. In both instances, the seriousness of the offense hinges upon the value of the property in question. In fact, as noted above and with just a few limited exceptions, the dollar value of stolen property will be the determining factor in the seriousness of most larceny-related offenses.

The value of property, however, is not always static. Imagine, for instance, a thief that robs a jewelry store (keep in mind this may also be a crime of Burglary, but that offense and its elements will not be discussed in this entry). When the thief commits the crime, he or she steals a bracelet made of one ounce of gold. At the time of the theft, gold is valued at $800 an ounce. Several months later, the thief sells the bracelet to a fence. When the fence receives the bracelet, gold is valued at $1,100 an ounce. Eventually, police discover that the fence is in possession of the stolen piece of jewelry. When the discovery is made, gold is valued at $900 an ounce. Some time later, prosecutors wish to finally charge the suspects based upon their actions. At the time when this occurs, gold is valued at $1,500 an ounce. Obviously, the legal issue or questions is clear. How is the value of property determined and when is that determination made?

Published on: January 29, 2012

Multiple Convictions for Possessing the Same Stolen Property Over a Period of Time: Understanding Jeopardy & New York Penal Law Article 165

By Jeremy Saland

Under New York’s larceny laws and theft crimes statutes, certain crimes and offenses are completed at the time they are committed. Take, for example, Grand Larceny, pursuant to Article 155 of the New York Penal Law. Under New York Penal Law 155.30, a person commits Grand Larceny in the Fourth Degree when he or she steals a piece of property, regardless of its type or nature, with a value in excess of $1,000. For the purpose of this particular statute, a person is considered to have stolen property when he or she takes, withholds, or obtains the property of another person with the intent of depriving that person of the property. So long as the person possesses the property in question with the intent to deprive another person of that property, the crime is considered complete at the moment that he or she takes the property. The property need not be in the accused’s possession for a minimum of one hour, one day or one week to have perpetrated the crime of NY PL 155.30 or any other degree of Grand Larceny. It is the physical taking that is the hallmark of any New York Penal Law Article 155 crime.

While the rule above holds true for the vast majority of offenses, the nature of other larceny-related crimes can be considered more ongoing or part of a greater course of conduct. Under New York Penal Law 165.45, a person commits Criminal Possession of Stolen Property in the Fourth Degree when he or she knowingly possesses stolen property with a value more than $1,000. While the crime occurs when the defendant first comes into knowing possession of the property, the offense continues for as long as the person is in possession of that property. In other words, you could be arrested or “get in trouble” with the law whether you are found to be in this possession of stolen property minutes or weeks after its theft. The nature of possession, unlike a taking, can go on for an extensive period and does not end until that possession no longer exists.