New York Theft and Larceny Lawyers Blog

Published on: June 4, 2012

Understanding the Elements of “Accosting” & “Public Place” in a Fraudulent Accosting – New York Penal Law 165.30 – Arrest

Far from the most common and equally far from being one of the more complex white collar fraud and theft crimes in New York, Fraudulent Accosting, pursuant to New York Penal Law 165.30, is nonetheless a serious offense. In fact, as a misdemeanor crime, NY PL 165.30 is punishable by up to one year in jail on either Rikers Island or the local jail in the county where you were arrested. Briefly, you are guilty of Fraudulent Accosting if and when, in a public place, you accost another person with the intent to defraud that person into giving you money or property by means of a trick, swindle or confidence game. Breaking this down further, in order for you to be guilty of Fraudulent Accosting you must (1) accost another person, (2) in a public place, (3) while having the intent to defraud that other person of money or property, and (4) do so by trick, swindle, or confidence game. See Jury Charges in NY Criminal Cases §35.08 (H. Leventhal ed. 1989).

As with many criminal statutes, a definition or statement of elements rarely, by itself, is clear enough to define a crime. To better understand criminal offenses, a review of court decisions is not merely helpful, but sometimes critical. To that end, a recent decision stemming from New York County (Manhattan) is worthy of review as it sheds greater light on New York Penal Law 165.30. In People v. Rodney Watts, 2011CN010203, NYLJ 1202556652476, at *1 (Crim., NY, Decided May 22, 2012), the prosecutors charged the defendant with Fraudulent Accosting after he allegedly sold four tickets to the Book of Mormon for $800. The tickets turned out to be fraudulent and counterfeit tickets. The criminal court complaint (actually called an information) stated that the incident occurred inside 335 Avenue of the Americas and when the defendant met with the undercover police officer he stated in substance that he was there to meet for the tickets. The question before the court was whether or not the information (complaint) was legally sufficient to establish the charge of Fraudulent Accosting. Although the court analyzed various elements, the main two it address involved the definitions of “accost” and “public place.”

Published on: May 31, 2012

Manhattan Grand Jury Indicts Abacus Federal Savings Bank and 11 Employees in Alleged Residential Mortgage Scam Topping Hundreds of Millions of Dollars

By Jeremy Saland

Nick Fury’s Howling Commandos have struck another blow against alleged criminal disorder in the great City of New York. Led by Manhattan District Attorney Cyrus Vance, Jr., prosecutors believe that Abacus Federal Savings Bank and eleven former employees were the central platform behind the sale of fraudulent loans to Fannie Mae. Not merely one or two loans, prosecutors contend these men and women perpetrated a false document mortgage fraud scheme involving sales in the hundreds of millions of dollars. Beyond the eleven individuals arrested in this scheme and the indictment of Abacus Bank, eight other former employees have already pleaded guilty to various felony offenses.

Among other crimes, the 184 count indictment against Abacus Bank and her eleven former employees charges Residential Mortgage Fraud in the First Degree (New York Penal Law 187.25), Residential Mortgage Fraud in the Second Degree (New York Penal Law 187.20), Grand Larceny in the First Degree (New York Penal Law 155.42, Second Degree Grand Larceny (New York Penal Law 155.40) and Falsifying Business Records in the First Degree (New York Penal Law 175.10). The most serious of these offenses, NY PL 187.25 and NY PL 155.42, are “B” felonies that require a minimum of one to three and a maximum of eight and one third to twenty five years in prison post conviction. The “C” felonies of NY PL 155.40 and NY PL 187.20 do not have mandatory terms of incarceration for first time felony offenders, but carry a maximum sentence of five to fifteen years in prison. NY PL 175.10 is an “E” felony with a potential punishment of up to four years in state custody.

Published on: May 30, 2012

New York VIP Service Founder Indicted: Proprietor of Giuliano Group Concierge Accused of Grand Larceny from Clients

By Jeremy Saland

While an arrest for Grand Larceny can lead to an indictment charging only one crime, in New York City it is far from atypical for that Grand Larceny arrest to be a part of a much larger scheme. In fact, as shown by the recent arrest and indictment of Robert Giuliano, Grand Larceny in the Third Degree may just be the tip of his alleged criminal iceberg.

According to Manhattan District Attorney Cyrus Vance, Jr., the Alpha Flight crew has caught up with the allegedly villainous Giuliano who is accused of defrauding at least two clients linked to a fraudulent concierge services website that he operated. It is believed by prosecutors that Giuliano’s high end luxury service promising VIP access to hot events from award shows and movie premieres to fashion shows and inaugural balls had a criminal element. Clients utilized Giuliano’s company, Giuliano Group Concierge, through its website at www.giulianogroup.tv. Using their credit cards online, clients were offered access to swank parties including the film premiere and after party for “American Pie: American Reunion” starring Jason Biggs, the TV premiere and after party for “Mad Men” starring Jon Hamm, January Jones and Christina Hendriks as well as a Russell Simmons privately hosted event for President Obama.

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 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: 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: 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: May 4, 2012

Bookkeeper for Brooklyn Public Administrator Allegedly Steals $2.6 Million from the Estates of the Dead

By Jeremy Saland

Manhattan District Attorney Cyrus Vance, Jr.’s League of Extraordinary Gentlemen (and women) has once again stuck a blow against The Fantom’s ranks. According to a press release, Richard Paul, the bookkeeper for the Kings County Public Administrator’s Office, stole “more than $2.6 million from the estates of individuals who died without a will by manipulating the agency’s check writing system.” In addition to Paul, DA Vance obtained an indictment from a New York County Grand Jury charging Taryn Miller, Ransel Sangster and George Bethea for their involvement in this alleged theft and fraud scheme. The arrest charges for Paul, Miller, Sangster and Bethea are all tied to Grand Larceny.

As a bookkeeper in the Public Administrators Office, it is believed that Paul “cooked the books” of an agency that has a responsibility to oversee the estates of those who died intestate. One dies intestate when one dies without a will. In cases such as these where there is no family to claim the estate of the deceased, the Public Administrator maintains the deceased’s estate. All of the money is ultimately transferred to the New York City Department of Finance. It is alleged by prosecutors that Paul, whose responsibility it was to make the transfers to the New York City Department of Finance, transferred money to confidants and friends from August 2008 to November 2011.