General Grand Larceny

Published on: April 22, 2012

Understanding & Defining “Property” in a New York Scheme to Defraud, Theft & Larceny Crime

New York is no stranger to white-collar crime. In this recession, post-Madoff era it is no wonder that District Attorney’s throughout the greater New York City area are coming down hard on white-collar criminals. In today’s blog post I’d like to discuss one of the laws often at the center of many white-collar prosecutions: Scheme to Defraud. New York Penal Law 190.65 defines Scheme to Defraud in the First Degree (summarizing in my own language – follow the highlighted link for our legal our more detailed legal analysis) as an ongoing plan to obtain property by false pretenses/fraud from multiple people. Usually, the schemer devised the plan with the express purpose of gaining property from multiple victims and executes the plan continuously (often over an extended period of time).

Now, for purposes of the Scheme to Defraud law, property does not have to be a tangible thing (e.g. money, antique stamps or electronics). Case law throughout the years has expanded what constitutes property under NY Penal Law 155.00 to include intangibles. For instance, some intangibles that constitute property are: contractual rights (e.g. a contract to renovate a hotel), a tenant’s legal right to posses an apartment, the right to conduct business (e.g. right of a waste management company to service a restaurant), and a right to be employed (e.g. a union official’s right to a position that he held). However, there are limits as to these intangibles that are included, and today I’d like to discuss one such limitation.

Published on: April 12, 2012

Theft By False Promise & Joint Accounts: NY Grand Larceny Arrests Involving Partnerships & Co-Owned Property

By Jeremy Saland

An arrest for a New York Second Degree Grand Larceny charge is a life altering event. An indictment or conviction for New York Penal Law 155.40 is even worse. In fact, an arrest for an degree of Grand Larceny in Manhattan, Queens, Brooklyn, Westchester or any county is potentially devastating. Because of this, it is critical to examine or identify potential defenses with your criminal lawyer right out of the gate. Fortunately, some defendants arrested for or charged with any Grand Larceny crime may actually have a “built in” defense to the theft or larceny allegation against them. For example, can a partner perpetrate a Grand Larceny from another partner when he or she misappropriates partnership funds? After all, partners both have rights to the money and funds, right? In such a case is the best defense one where your criminal lawyer or theft defense attorney cites People v. Zinke, 76 N.Y.2d 8 (1990). There, the Court of Appeals held that “…in New York, partners cannot be charged with larceny for misappropriating firm assets. Indeed…a partner “[can] not steal partnership property.” Further, the “…important point is that limited partnerships are partnerships in the eyes of the law of this State, and as such they come within the rule that partners cannot be guilty of larceny when they steal from them.”

Well, as clear as the law may seem based on this case and other decisions by our state’s highest court, law is not math. Each case is unique and there are often twists that impact the application of those laws. One such example can be found in People v. Antilla, 77 N.Y.2d 853 (1991). In Antilla, the defendant’s now deceased and previously widowed great-aunt gave the defendant control over some of her financial affairs. Further, the great-aunt left the defendant one third of her estate. Shortly thereafter, the great-aunt deposited $180.000 into a money market account where both parties were joint owners.Over the next fourteen months, the defendant withdrew most of the money. Additionally, he received the statements. Ultimately, the defendant left New York and gave up financial control of this great-aunt’s estate other than the money market account where the $180,000 was deposited. Unfortunately for the defendant, a jury convicted him of Grand Larceny in the Second Degree – NY PL 155.40.

Published on: April 4, 2012

Stealing Worthless Property in New York: Have You Committed a Crime?

By Jeremy Saland

A very simple (yes, very simple) way to examine or understand New York’s theft and larceny laws is to look at value of property that is alleged to have been stolen. If you steal property in excess of $1,000, then your arrest would be for a felony Grand Larceny. If value is less than this amount, then your arrest would be for a misdemeanor Petit Larceny. While I have drafted numerous entries addressing the importance of value in a New York larceny arrest as well as how that value is ascertained by New York courts, there are some questions outstanding. Is it possible to be convicted of either Grand Larceny or Petit Larceny where there is no value? The answer to this question is “yes.”

A legal decision that is directly on point and addresses this issue is People v. Freeman, 148 A.D.2d 467 (2nd Dept. 1989). There, a Brooklyn (Kings County) jury convicted the defendant at trial for “Grand Larceny from the Person” as codified in New York Penal Law 155.30(5). The People proved beyond a reasonable doubt in that case that Freeman stole a purse from a woman. The purse contained pieces of torn currency. Although the court denied the request of the criminal defense attorney, the defense lawyer asked that the jury be charged with the lesser offense of Attempted Grand Larceny under the theory that the property ultimately taken – pieces of torn currency – had no value.

Published on: March 30, 2012

Defining “Owner” in a New York Grand Larceny or Petit Larceny Case

By Jeremy Saland

Whether it is a shoplifting arrest for New York Penal Law 155.25 or an Embezzlement arrest for Second Degree Grand Larceny – New York Penal Law 155.40, there are certain critical elements that are fluid or consistent amongst all New York theft and larceny crimes. Certainly, your New York criminal lawyer or defense attorney will analyze the evidence in each allegation and apply the applicable law to determine whether or not the prosecution is able to prove their case beyond a reasonable doubt, but some of that analysis will be the same across all theft arrests. In non-legal terms, your counsel will seek to refute or challenge an Assistant District Attorney’s allegation that you took property from another person who had a superior right of possession and did so for your own benefit or to prevent the owner from retrieving it. Keep in mind that while value is directly related to the degree of the crime, it is not a requirement to prove a base level larceny.

If you noticed above, I used the terms “superior right” and “owner” when describing the elements of a Grand Larceny or Petit Larceny crime or arrest. Are these terms interchangeable? What is an “owner?”

Published on: March 25, 2012

Grand Larceny by False Promise: The Criminal Defense and Application of the “Moral Certainty” Standard in a New York Grand Larceny Case

By Jeremy Saland

Imagine that you’re running a little low on cash. You don’t have money, but you have a skill that can earn you some money. Maybe its construction, or repairing automobiles, or tutoring – the type of work is irrelevant, what matters is that you have a customer and he or she has agreed to pay you in advance. As you’re preparing to begin this extra work, something happens, and suddenly you can no longer perform the job that you promised to do. To make matters worse, you’ve spent the money that your customer has paid you, so you can’t even return the cash. While this turn of events is certainly embarrassing, another potentially harmful consequence looms in the distance – is it possible that you’ve also committed a crime and violated the New York Penal Law (Grand Larceny or Criminal Possession of Stolen Property)? Can your truly innocent error now result in an arrest? Will you need a criminal attorney or criminal lawyer to protect your rights and keep you from jail or incarceration?

Under New York Penal Law 155.05, obtaining property by a false promise, a/k/a/, Theft by False Promise, constitutes the crime of larceny. A person obtains property by false promise when, based upon a scheme to defraud another person, he or she obtains that person’s property by making a promise to do something that he or she actually has no intention of doing. Applying this law to the circumstance described above produces frightening results. Though your promise may have been sincere, the fact remains that you haven’t done what you said you would and you’ve still taken your customer’s money. Put differently, you now possess their property in exchange for a promise that was never performed.

Published on: March 19, 2012

A “Claim of Right” Defense to a New York Embezzlement or Grand Larceny Arrest: Understanding NY PL 155.15 & Its Applicability to Your Criminal Defense

By Jeremy Saland

In many of our discussions, we’ve highlighted that while New York’s larceny and theft laws can seem straightforward enough on paper, their interpretations are sometimes extremely ambiguous. As a result, we’ve recommended consulting your New York criminal lawyer in any circumstance where you have been charged with a larceny-related offense whether it be Petit Larceny, Grand Larceny, Criminal Possession of Stolen Property or a similar crime. Today, we’ll be discussing one of a number of defenses that, in the event you are charged with a crime involving larceny, your attorney may be able to assert on your behalf.

There are many methods of proving a defendant’s innocence (actually, it is the People’s burden to prove your guilt). In some circumstances, it is most effective to highlight inconsistencies in the prosecution’s case. In others, evidence can be presented that contradicts the state’s theory of a crime. A third and somewhat less utilized method of proving a defendant’s innocence is to assert a statutory defense. Unlike the first two methods, a statutory defense admits that while a defendant may have performed the crime that prosecutors allege, such as Petit Larceny or Grand Larceny, there is a justification that excuses him or her from guilt for doing so.

Published on: March 14, 2012

DA: “Slush Fund” Attorney, Robert Cassandro, Perpetrated $4.6 Million Ponzi Scheme Against Own Family

By Jeremy Saland

If alleged “Mommy Pimp,” Anna Gristina, is sitting on Rikers Island unable to make $2 million bail in a one count indictment without a threat of a mandatory prison sentence, one can only assume that Long Island attorney, Robert J. Cassandro, will be resting his head on New York City issued pillows for the foreseeable future as well. However, those who would make such an assumption would be would be wrong as Cassandro posted $50,000 bail in a case of much greater magnitude in terms of penalty and criminal liability. According to Manhattan District Attorney Cyrus Vance, Jr., prosecutors obtained an arrest and indictment of Cassandro for a Ponzi scheme that netted him $4.6 million dollars despite the fact that the alleged properties that were the centerpiece to the fraud and the defendant himself were located outside the jurisdiction. Charged with Scheme to Defraud in the First Degree (New York Penal Law 190.65) and Grand Larceny in the First Degree (New York Penal Law 155.42), Cassandro cannot avoid incarceration should he be convicted.

Prosecutors claim that Cassandro committed his Ponzi scheme by lying to investors – family and friends – in order to convince them to invest in a business building single family homes on Long Island. Despite his promises that that money was secured, the New York County District Attorney’s Office believes that quite the opposite occurred. Unbeknownst to these “investors,” Cassandro allegedly defrauded them by offering the same investment and loan scheme to others. As a result, Cassandro pocketed these monies that far exceeded what was actually needed for the projects. Instead of providing the lenders with security that had been promised, Cassandro gave the mortgages on these properties to others as well. Compounding matters, it is alleged that Cassandro deposited millions of dollars into his escrow account. It was this escrow account, according to DA Vance, that Cassandro used as his own “slush fund” for expenses such as the mortgage on his own home, country club dues and personal credit cards.

Published on: March 12, 2012

New York Extortion Crimes: Further Understanding & Defining Blackmail in NYC & Beyond

By Jeremy Saland

When we think about a New York larceny (whether it be Petit Larceny or Grand Larceny), most people’s minds immediately conjure up images of black-clad, ski-masked villains entering homes or businesses and making off with other people’s property (technically, that’s actually a Burglary). There are, however, ways that a person can commit larceny without ever donning a ski-mask or even wearing black (surprised?!?!). In New York, a person commits larceny when he or she steals property. Under penal law §155.05, stealing is defined as taking, obtaining, or withholding another person’s property with the intent to deprive that person of it. While “taking” someone’s property generally fits the preconceived notion of how one might commit larceny, other ways in which a person may “obtain” or “withhold” property often do not. One method by which someone might steal property in New York by “obtaining” it, for instance, is through Extortion.

Under NY PL 155.05, a person commits New York Grand Larceny by Extortion when he or she compels or induces another person to give up their property by instilling fear that, if the property is not given, the person will injure them, damage their property, commit a crime, expose a secret, testify against that person, abuse a position as a public servant, or perform any other act intended to harm that person. Though it may seem counter-intuitive that, despite the coercion, a person can be charged with “stealing” something that has been been given to them, a larceny by Extortion is treated no differently in New York than any other type of theft.

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: March 2, 2012

DA: Fake New York Hilton Employee Scams at Least Five Job Seekers Out of More than $13,000

By Jeremy Saland

New York fraud crimes involving Grand Larceny and other thefts come in a variety of “flavors.” Whether by Embezzlement, Extortion or Larceny by Trick, there is always a new scheme to be perpetrated on an unsuspecting victim. As proof of the countless ways in which people attempt to defraud or steal from others, one has to look no further than the press releases routinely issued by the Manhattan, Queens and other New York City area District Attorney’s Offices. In fact, Manhattan District Attorney Cyrus Vance, Jr. announced the indictment yesterday of Katia Gaton, a woman who allegedly posed as a New York Hilton Hotel employee and stole money from victims who were seeking jobs. The indictment charges Gaton with multiple counts including Grand Larceny in the Fourth Degree (New York Penal Law 155.30) and Grand Larceny in the Third Degree (New York Penal Law 155.35).

Briefly, and before addressing the allegations in this particular arrest and indictment, one is guilty of NY PL 155.30 if one steals more than $1,000, but no more than $3,000. One is guilty of NY PL 155.35 if one steals more than $3,000, but no more than $50,000. Because this is a theft case involving four separate victims, as opposed to multiple thefts from one victim, the total amount of the thefts is not aggregated to increase the degree or level of the crime. Here, even if it was, the threshold of more than $50,000 would not have been met anyway.