Grand Larceny

Published on: June 19, 2012

Grand Larceny from the Person of Another: Can a “Detective Investigation” be the Sole Basis of a NY Felony Complaint & Arrest Warrant

Often described as a lesser version of Robbery or a Robbery without force and violence, Grand Larceny from the Person of Another is a serious crime. An “E” felony, New York Penal Law 155.30(5) is punishable by as little as no jail, but up to as much as four years in state prison. In substance, a person is guilty of Grand Larceny in the Fourth Degree pursuant to the “Person of Another” subsection (NY PL 155.30(5)) when that person takes property from another’s body, irrespective of its type or value.

There are many issues that New York criminal defense attorneys encounter defending their clients against felony allegations of Grand Larceny in this context. A recent Town Court decision, worth analyzing here, addresses one of these issues that a theft lawyer and his or her defendant may encounter.

Published on: May 24, 2012

Case Assessment: Manhattan Insurance Fraud Arrests Nab Three Including Physician

By Jeremy Saland

Aquaman never had to come up to breathe and it appears that Manhattan District Attorney Cyrus Vance, Jr. does not either. DA Vance’s Super Friends clearly have no interest in catching their collective breath as they continue to relentlessly pursue those believed to be the Legion of Doom’s villinious associates. Whether it is fighting crime in the streets, or, as his predecessor Robert Morgenthau coined during his thirty plus year tenure, “crime in the suites,” the Manhattan DA’s Office continues to unequivically display its lack of tolerance for criminal shenanigans. According to their latest press release, Sudha Kailas, Herlina Luis and Janice Sich are the unfortunate recipients of this zealous pursuit of all things allegedly criminal. The arrests in New York of Kailas, Herlina and Sich are merely a minuscule fraction of the white collar theft and fraud cases brought by the Manhattan District Attorney’s Office over the past few months.

It is alleged by prosecutors that Kailas, Luis and Sich, who are charged with Grand Larceny, Insurance Fraud and other crimes, defrauded insurance companies and employment health plans out of nearly a half a million dollars (it appears as if the cases are separate). While likely only a “drop in the bucket” of an unsympathetic insurance company’s finances (some might argue they steal from us), the reality is that any fraud victimizes tax payers and other law abiding citizens who pay into these programs. Certainly, if true, a theft of this scale is not one that is insignificant or can be ignored by law enforcement and is understandingly the target of many agencies.

Published on: May 24, 2012

When Theft of Services is Actually a Grand Larceny: Distinguishing Services from Commodities in a NY Grand Larceny Arrest

By Jeremy Saland

While the overlap between Petit Larceny and the varying degrees of Grand Larceny in New York is clear (Petit Larceny is a “lesser included offense” of Grand Larceny), what is the relationship between Theft of Services and those larceny offenses? Are Theft of Services and Grand Larceny in the Third Degree, for example, mutually exclusive? If one is charged can the other be part of the same arrest as well? If you are stealing a service can you also be stealing property in a manner to satisfy the elements of any New York Penal Law Article 155 crime? In short, the answer to all of this is “yes.”

Briefly, Theft of Services, pursuant to New York Penal Law 165.15, is a misdemeanor offense punishable by up to a year in jail. This crime is often associated with arrests in Manhattan, Brooklyn, Queens, etc., where one intentionally fails to pay a tab at a restaurant or from a cab driver. NY PL 165.15 is a misdemeanor and, in the circumstances above, one is often issued a Desk Appearance Ticket (DAT) at the time of one’s arrest. Although Theft of Services is a crime, New York larceny crimes are equal to and much more serious than this offense. If you intentionally steal property of another (this is not the exact definition), then you are guilty of at least the misdemeanor of Petit Larceny. Should the value exceed $1,000, $3,000, $50,000 or $1,000,000 you are guilty of Fourth, Third, Second or First Degree Grand Larceny respectively. These crimes are felony offenses that have maximum sentences ranging from four years in prison to twenty-five years.

Published on: May 21, 2012

Theft of Jointly Held Property: The “Zinke” Bar to Grand Larceny Prosecutions in New York

By Jeremy Saland

Most theft crimes are fairly straight forward. While that does not necessarily mean prosecutors can easily prove Grand Larceny beyond a reasonable doubt, roles of the parties are often clearly defined. That is, there is a defendant or the accused and the complainant or the victim. Whether the Grand Larceny theft is in Manhattan for New York Penal Law 155.30 (value in excess of $1,000, but $3,000 or less) or the Grand Larceny theft is in Brooklyn for New York Penal Law 155.35 (value in excess of $3,000,but $50,000 or less), there is an unlawful taking by one party from another. Sadly (or maybe to the benefit of the accused), nothing in the world of New York criminal law or a New York criminal defense attorney is that easy. As I noted in a previous blog entry on the same general topic, what happens if the property alleged to be stolen is jointly owned? Can there still be a theft or larceny regardless of the value of that property?

In a case stemming out of Kings County (Brooklyn) New York, a judge, prosecutor and criminal defense attorney had the opportunity to litigate this issue. In People v. Rosenfeld, 17 Misc.3d 253 (Kings Cty Sup. Ct. 2007), defendants where charged with Grand Larceny in the Second Degree, pursuant to New York Penal Law 155.40, after they were accused of stealing real property from a co-owner of that property. A Brooklyn Grand Jury indicted the defendants for their forging of a deed that resulted in an improper transfer of the complainant co-owners’ interest in that same property. Despite the contention of the prosecution, the Court held (to be addressed in more detail below), that the defendants could not be charged as they were tenants in common with the co-owners they allegedly stole from. Simply put, no co-owner of property has a superior right of possession, a necessary element in the New York Penal Law (see NY PL 155.05(5)).

Published on: April 26, 2012

DA: Nepalese National Defrauded Fellow Countrymen Out of Thousands of Dollars in Immigration Scam

By Jeremy Saland

A prosecutor needs to protect all people regardless of whether they are citizens, residents or even illegally living in the United States. While members of the defense bar can, and usually do, spar with their prosecutorial counterparts in order to ensure the burden of proof is met in any criminal complaint or allegation, it does not diminish the role of the District Attorney (or defense lawyer for that matter). In fact, Manhattan District Attorney Cyrus Vance, Jr., who championed protecting immigrants as one of his platforms, is exercising the power of the New York Criminal Justice System to assist people who fall pray to those seeking to take advantage of immigrants. According to the DA website, Vance Inc. has obtained the arrest and indictment of Hit Shrestha, “a Nepalese national, for systematically defrauding other Nepalese nationals of thousands of dollars.” As such, Shrestha faces multiple felony charges including Grand Larceny in the Fourth Degree (New York Penal Law 155.30) and Scheme to Defraud in the First Degree (New York Penal Law 190.65).

According to the New York County District Attorney’s Office, Shrestha allegedly convinced multiple Nepalese immigrants to pay her a fee ranging from $3,000 to $7,000 so she could arrange for their family members to come to the United States. These fees included air travel and immigration forms. Prosecutors further claim that Shrestha bonded with new immigrants from her home country of Nepal by inviting them to dinner, introducing them to local people in the Nepalese community and helping them find employment.

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: 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 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.

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.