Misdemeanor Theft Crimes

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?

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: May 8, 2012

When Taking Property of Another May Not be Stealing: Understanding Petit Larceny & New York Penal Law 155.25

By Jeremy Saland

“Stealing” is a term that we would all likely define in a similar way. Whether it is a shoplifting from Macys, Bloomingdales or Century 21 or it is a theft of a briefcase from a car or subway platform, the New York criminal law requires that certain elements be met. Assuming your shoplift or theft is equal to or less than $1,000 in value, the charge you will face through a Desk Appearance Ticket or a “regular” arrest will be 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). Both “A” misdemeanors, NY PL 155.25 and NY PL 165.40 are punishable by one year in jail.

Obviously, before throwing your hands up in the air and surrendering to the consequences of an alleged shoplifting or theft arrest, you should consult with a New York criminal defense attorney to identify what defenses you have in terms of challenging the evidence or mitigating your conduct. Assuming it is applicable to the allegations in your arrest for either Petit Larceny or Criminal Possession of Stolen Property in the Fifth Degree, one defense may be to ask a court to dismiss the charges against you because the complaint is not sufficient. In other words, prosecutors have not satisfied the elements of the crimes in the paper filed with the court that contains the criminal accusation. Depending on the circumstances, the following case may be a weapon you and your lawyer utilize for your defense. If nothing else, the case below will help an individual unfamiliar with the legal process in criminal court understand that process a little better.

Published on: April 16, 2012

Direct & Collateral Issues for NYC Department of Education Employees & Public School Teachers Arrested for New York Theft Crimes Part I

By Jeremy Saland

New York City public school teachers, just like members of any profession, are not immune from arrests, Desk Appearance Tickets (often called NY DATs), indictments or convictions for crimes set forth in the New York Penal Law. In New York City – Manhattan, Brooklyn, Queens and the Bronx – the Department of Education dictates certain types of crimes that can devastate or end the career of a teacher whether that offense stems from a misdemeanor DAT or a felony arrest. As such, the New York City Department of Education requires the reporting of these arrests. Whether or not you ultimately seek the guidance or representation of a New York criminal lawyer or defense attorney at your arraignment, it is critical to understand what you may face in the criminal court as well as in the classroom.

Briefly, and before discussing the reporting requirements for teachers arrested in NYC as mandated by the NYC Department of Education, there are five common misdemeanor crimes that the criminal defense attorneys at Saland Law PC have either prosecuted as Assistant District Attorneys in Manhattan or defended as criminal lawyers. In no way, however, is this an exhaustive list. These crimes are shoplifting pursuant to Petit Larceny (NY PL 155.25) or Criminal Possession of Stolen Property in the Fourth Degree (NY PL 165.40), Theft of Services (New York Penal Law 165.15), Assault in the Third Degree (NY PL 120.00) and Criminal Possession of a Controlled Substance in the Seventh Degree (NY PL 220.03). Because this blog is dedicated to theft and larceny crimes in New York, the latter two offenses will not be addressed here (extensive information on these crimes is available on our sister blog and website at New-York-Lawyers.org as well as NewYorkCriminalLawyerBlog.Com).

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: January 7, 2012

When a Lie Leads to a Theft Conviction: Establishing Knowledge of Stolen Property at a NY PL 155.30 & NY PL 165.40 Trial

By Jeremy Saland

In a previous post, we explained that under New York’s larceny laws, offenses relating to Criminal Possession of Stolen Property require that a prosecutor introduce evidence showing a defendant “knowingly possessed” the stolen property in question. We explained that, given the language of the statute, courts have held that a defendant cannot be convicted for merely possessing stolen property without evidence showing that he or she knew the property was stolen.

To illustrate this point, we examined a case called People v. Nowakowski. In this case, the defendant explained that he had purchased the property in question, but the prosecution was unable to provide any evidence, either direct or circumstantial, that the defendant knew the property was stolen. Because the prosecution provided no evidence that the defendant knew the property was stolen, the jury could not properly be asked to consider whether he knew it was stolen.

Published on: December 28, 2011

Circumstantial Proof: Can New York Prosecutors Sustain Your Petit Larceny or Criminal Possession of Stolen Property Arrest

By Jeremy Saland

While Grand Larceny crimes are vastly more serious than their misdemeanor Petit Larceny counterparts, the theft cases that fill the dockets of New York Criminal Courts and the calendars of New York criminal lawyers – from Manhattan, to Queens, out to Westchester and Rockland Counties- usually involve violations of the “lesser” NY PL 155.25. In this blog I want to examine a Kings (Brooklyn) County Criminal case- People v. McDuffie, 2011 KNO74543, NYLJ 12025314774, at *1 (Crim., KI, Decided October 27, 2011)- which illustrates the level of proof required to properly charge (and convict) a defendant of Petit Larceny (New York Penal Law 155.25) and Criminal Possession of Stolen Property in the Fifth Degree (New York Penal Law 165.40). To clarify, pursuant to NY PL 155.25, a person is guilty of Petit Larceny when he or she steals property (any property) with a value of one thousand dollars or less. Additionally, pursuant to NY PL 165.40, a person is guilty of Criminal Possession of Stolen Property in the Fifth Degree when he or she knowingly possess stolen property with the intent to benefit him or herself. The value of the property that sets the particular degree of the crime is the same for both offenses.

Before proceeding it is worth noting that People v. McDuffie is also interesting because it involves a bit of criminal procedure law- the basics of which are worth understanding. The defendant here was not appealing a conviction (meaning post plea or after trial). Rather, the defendant made a motion to dismiss the case as “facially insufficient.” In other words, the defendant argued that the Brooklyn District Attorney’s Office did not have the proper proof to bring these charges against him in the first place and they were not properly set forth in the “four counters” of the criminal complaint. In order to properly file charges against a defendant the prosecution must show non-hearsay facts (generally first hand observations by witnesses) that establish each and every element of the offense charged. While the burden is and remains on the shoulders of the prosecution, the proof is much lower to initially bring charges against a defendant as opposed to supporting a guilty conviction at trial (hence proving facial insufficiency is a much more arduous task for the defense because at this stage in the process there is no “beyond a reasonable doubt”). Therefore, in McDuffie the People had to show that their complaint (called the “information”) was enough to establish a Prima Facie (on the face of it) case–meaning the facts point to guilt.

Published on: December 12, 2011

Skipping Out on Your New York City Bar Tab: A Criminal Law Analysis of NY PL 165.15 “Theft of Services”

By Jeremy Saland

One may assume that failure to pay a bar tab automatically violates New York Penal Law 165.15. In fact, Theft of Services – a Class A misdemeanor punishable by up to one year in jail – is often the crime charged in such cases when an individual is arrested for failing to pay their bill at a bar, pub or tavern. In its eleven distinct subsections, Theft of Services defines the numerous New York crimes involving service theft throughout the boroughs of New York City including Manhattan, Brooklyn and Queens. The question remains, however. Is failure to pay a bar bill a violation of NY PL 165.15?

The most commonly charged subsection of Theft Services that criminal lawyers in New York handle are violations of NY PL 165.15(2). This subsections establishes that you are guilty of this misdemeanor crime when you not merely avoid paying for a restaurant service that you received, but that this avoidance is intentional. The law even establishes that you are presumed to have intended to not pay for theses services if you do not pay for the same. In short, if you skip out on a restaurant or hotel bill you may be guilty of NY PL 165.15(2). While officers can take the accused into custody (usually spending up to one night in jail), they frequently issue a Desk Appearance Ticket (DAT) for NY PL 165.15, which requires the defendant to return to court on another date without going through central booking.