New York Theft and Larceny Lawyers Blog

Published on: April 30, 2012

NY County DA: 85 Year Old Woman Defrauded Out of $1.6 Million by “Youngster” Nine Years Her Junior

In an alleged elder abuse case perpetrated by a member of the same generation, Manhattan District Attorney Cyrus R. Vance, Jr., claims that 76 year old Philip Leopold bilked his contemporary, an 85 year old woman, to the tune of $1.6 million. The Justice League contends that Leopold took advantage of his nearly blind and deaf contemporary as early as 2002.

DA Vance believes that between 2002 and 2010, Leopold created a trust for his victim that he and the Bank of New York were named as co-trustees. Shorty after its creation, the trust grew to more than $2 million. Around the same time, it is believed that Leopold opened a checking account at the bank where he previously opened the trust. Not completely devious in nature, prosecutors contend that Leopold used part of the money to pay the complainant’s household expenses as he took control of some of her finances and prepared checks for her signature.

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 22, 2012

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

By Jeremy Saland

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 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 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 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: 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.