New York Theft and Larceny Lawyers Blog

Published on: December 28, 2011

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

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 24, 2011

Knowingly Possessing Stolen Property: The Criminal Defense of Knowledge to a NY Stolen Property Arrest

By Jeremy Saland

In New York, one need not necessarily commit theft to be charged with a crime involving larceny. In fact, a New York criminal lawyer experienced in theft offenses can explain how in some circumstances, mere possession of stolen property is sufficient to establish the basis of a theft or larceny arrest. Under New York Penal Law 165.40 (Criminal Possession of Stolen Property in the Fifth Degree), it is a crime for a person to knowingly possess stolen property for the purpose of benefiting himself or another. Under the same law, it is also a crime for a person to knowingly possess stolen property for the purpose of preventing the owner from recovering that property. Like many of New York’s larceny laws, the range of consequences a defendant will face for possessing stolen property can vary widely, often depending upon the nature of the property itself. As we’ve previously discussed, if the stolen property exceeds certain dollar values, or falls within a specific class of items, the defendant might not be charged with a simple misdemeanor, but rather, a much more serious felony (NY PL 165.45 through NY PL 165.54). While the ramifications of a misdemeanor Criminal Possession of Stolen Property arrest in New York is serious, the gravity of the felony crimes are that much more.

Pursuant to New York criminal law, all offenses related to possession of stolen property share one element in particular that must be proven beyond a reasonable doubt: a defendant must knowingly possess the stolen property upon which the charge is based. Given this language, it might be assumed that if a person knows he or she is in possession of a certain piece of property, and that property is stolen, he or she must be guilty of possessing stolen property. As a skilled defense attorney will inform you, however, this interpretation is not entirely accurate. While it may seem like a somewhat basic question on its surface, whether a defendant “knowingly possesses” stolen property is a question that your criminal attorney may be able to argue strongly in your favor.

Published on: December 20, 2011

Grand Larceny by Extortion & Blackmail: A Criminal Lawyer’s Examination of “Untraditional” New York Extortion Cases Pursuant to NY P.L. 155.05(e)

By Jeremy Saland

One of the more notable crimes under New York’s many larceny crimes and theft offenses is Grand Larceny by Extortion (often called Blackmail). Most experienced White Collar criminal defense attorneys in New York City, Brooklyn, Manhattan, Queens and the neighboring counties deal with the many faces of Extortion and Blackmail as prosecutors levy charges against their clients. Because of this, Extortion can be defined as quite a broad crime. New York Penal Law 155.05(e) lists a breadth of activities that may constitute Extortion…some of it obvious and much of it not at all. Generally paraphrasing the statute, a person is guilty of Larceny by Extortion when he/she obtains property by instilling a fear that if the property is not given, the “bad guy” will do some act that will harm the property owner in some way. In common parlance, as noted above, it is similar to Blackmail – the property owner is compelled to deliver the property because they are threatened. The statute lists the many forms of harm that may constitute Grand Larceny by Extortion, such as: physical injury, damage to property, accusation of a crime, exposing a secret, causing a strike, testifying or withholding information, abusing a position of power. In other words, any threat to perform an act that will harm the property owner in some way.

One of the keys to understanding Larceny by Extortion is that it shares the same broad definition of property that accompanies the Grand Larceny statutes. Property really will include anything of value. Thus, it is not just the obvious – money – that constitutes property, but also a contract for services, or a right of a tenant to possess and occupy an apartment. One New York criminal case directly on this point of law is People v. Spatarella, 34 NY.2d 157. There, Mr. Spartella was convicted of Grand Larceny by Extortion, in violation of NY Penal Law 155.40. Spartella was the head of a garbage collection company. A competitor had been servicing a restaurant in the area, and the defendant wanted the business. Thus, Spartella threatened the competitor with physical injury and the competitor removed their garbage containers from the restaurant. Without the restaurant owner’s knowledge or consent, Spartella started serving its refuse collection needs. The interesting question of law before the court was whether in this situation, where a customer is stolen through intimidation (rather than the more common extortion situation where money is demanded in return for leaving the business alone), the defendant perpetrated Extortion. The court ruled that this did constitute Extortion. The competitor was deprived of the business relationship and the right to service the restaurant. As the court stated, for Extortion purposes property that can be threatened has consistently “included intangible rights.” Another “untraditional” Extortion case shows further how the statute can be extended to encompass different property. In United States v. Ivezaj, 568 F.3d 88, the defendants challenged their convictions under New York’s Extortion laws claiming that the control over intangible property was not “property” that could be “delivered” pursuant to NY PL 155.05. Interestingly, in this case the property gained by threat was control of an illegal gambling operation. The Court of Appeals here, ruled that not only do intangible goods constitute property under New York law, but the control over an illegal gambling ring is a “thing of value” which is “provided for…compensation.” The court rejected the argument that illegally obtained assets and businesses conducted in violation of the law cannot constitute property. In other words, it did not matter that the “victims” of Extortion had no legal right to operate an illegal gambling business.

Published on: December 16, 2011

Larceny of Common Property: Can You Steal Property that is Jointly Owned?

By Jeremy Saland

As an experienced New York criminal defense attorney serving Manhattan, Brooklyn, Queens, the Bronx, and the surrounding counties such as Westchester, I am routinely confronted with legal question surrounding New York Grand Larceny crimes and other New York larceny laws and theft laws. In today’s blog post I want to address one of the more ‘weird’ legal situations that arises when a joint property owners “steals” commonly owned property from the other party he or she shares ownership.

To avoid confusion at the outset, let’s pause a moment and allow me to share a little Legal Property 101. Under the common law, there are different types of ownership rights one can have in property. Obviously the most basic is full ownership by a single person. However, more than one person may own one piece of property. When referring to land (real property) we usually call this a concurrent estate or co-tenancy. Now, there are different subsets of concurrent estates that vary in different jurisdictions, but their definition and consequences on ownership rights go beyond what we need to know here. For purposes of our discussion, when I refer to “joint” or “common” ownership of property I mean property over which each individual owner has an equal and undivided right of possession in that property. Each owner is entitled to have and use the property. It does not matter if that property is a car, bank account or computer.

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.

Published on: December 7, 2011

Escalating the Degree of a Grand Larceny Crime in New York: When Aggregation Applies to a Theft Crime

By Jeremy Saland

Ask any New York criminal defense attorney who regularly practices in the criminal court of our state. Not all thefts are created equal. The New York Penal Law breaks down Larceny into distinct degrees, ranging from Petit Larceny to Grand Larceny (NY P.L. 155.25, 155.30, 155.35, 155.40, 155.42). Prosecutors in New York City, the neighboring boroughs, and in the surrounding counties of Westchester and Rockland, will designate the proper Larceny charge based on an estimate of the value of the property that has allegedly been stolen. Many times part of being an effective White-Collar Criminal defense lawyer is getting the charges against your client reduced (so that your client can face potentially less, little, or no prison time) especially if the evidence is too stacked against your client for an acquittal. Conversely, just as criminal defense lawyers attempt to reduce charges, prosecutors will try to increase the degree of an offense. One such tool prosecutors utilize to aid in this effort is aggregation. Instead of charging an accused defendant thief with multiple lesser larceny charges, they may be able to add up the value of the total property stolen from several different thefts. So if a person commits six separate thefts of $501 each, instead of charging the thief with six separate counts of Petit Larceny (a misdemeanor) the prosecution may be able to charge the thief with Grand Larceny in the Third Degree (a class D felony). What was once punishable by at most up to a year in jail is now punishable by up to two and one-third to seven years in state prison. Obviously, the difference is enormous.

Aggregation is not applicable in all instances involving multiple thefts. Generally, aggregation is permissible where separate acts of theft are from the same owner if the successive thefts are pursuant to a single sustained criminal scheme. An examination of the pertinent New York case law helps “flesh out” aggregation. The seminal New York case on aggregation, People v. Cox, 286 N.Y. 137, established the aggregation principle (the case dates back to 1941 so the monetary values are different, but the legal principles holds true). The case centered on a defendant who was a turnstile maintainer in the subway system. Over a two-year period he stole batches of nickels, about $25 at a time, from the subway system. However, in aggregate the nickels totaled about $2,000 dollars. Cox argued that because his theft occurred over a period of time and at no one time exceeded the sum of $100 he was guilty of numerous Petit Larceny crimes rather than one Grand Larceny (the ceiling for petit larceny then was $100). The court ruled that the evidence showed that the “entire taking was governed by a single intent and a general illegal design.” The length of period over which the thefts occurred was irrelevant. Thus, Cox was convicted as a felon (Grand Larceny) not the misdemeanor.

Published on: November 5, 2011

Have Questions About New York Theft Laws & Larceny Crimes: NewYorkTheftAndLarcenyLawyersBlog.Com

By Jeremy Saland

New York criminal lawyers Elizabeth Crotty and Jeremy Saland are pleased to share their newest online resource for NY theft crimes and larceny laws. The NewYorkTheftAndLarcenyLawyersBlog.Com, along with its “sister” website, NewYorkTheftAndLarcenyLawyers.Com, is a resource with practical information on white collar theft offenses and larceny crimes in New York State. Not drafted by website designers or marketing professionals, the information contained in these two sites is all original work product created and maintained by lawyers. In fact, both Elizabeth Crotty and Jeremy Saland have practiced law since 2000 when they began serving together as Assistant District Attorneys in Robert Morgenthau’s Manhattan District Attorney’s Office. After serving as prosecutors for six and seven years respectively, followed by boutique civil litigation and criminal defense experience, our New York criminal lawyers started their own law firm dedicated to criminal defense in 2008. Since then, our criminal attorneys have successfully defended clients throughout New York City and the region.

Not created as a substitute for legal counsel (nothing read in any blog entry or webpage should be construed as advice), both the website and blog are viable means to start your education on theft and larceny crimes while also giving you the knowledge to have an informed conversation with your attorney. Moreover, the content will also help those unfamiliar with criminal law to see the practical application of criminal statutes in New York courts. Because the materials address crimes, current and historical court decisions and cases covered by news agencies in the New York City market, the website and blog are all valuable tools if you are a target of a criminal investigation or a defendant in an arrest.