Every element of every crime is equally important. Irrespective of the charge you face, prosecutors in New York City, Westchester County or anywhere else in the State of New York must prove each element beyond a reasonable doubt. This is no different if you you are charged with Grand Larceny as codified in Article 150 of the New York Penal Law or a violent offense of Assault as codified in Article 120 of the New York Penal Law. Addressing the former offense of Grand Larceny, one of the elements that an Assistant District Attorney must prove to a jury or a judge at trial is that the value of the alleged property you allegedly stole exceeds either $1,000.00, $3,000.00, $50,000.00 or $1,000,000.00. Simply, value is an essential element of any Grand Larceny crime that your criminal lawyer or criminal defense attorney will vigorously challenge. If a judge or jury agrees with you, as opposed to the prosecutor, then either the trial will end in an acquittal or a conviction for a lesser criminal offense. Where a case involves cash or money, your attorney’s task may be quite difficult, but how is value assessed (or challenged) when the value of the property in question is not easily quantified?
It certainly is not used in the everyday lingo of a non-lawyer and rarely used by those who are practicing attorneys, but asportation is a term that a New York criminal defense attorney or New York theft lawyer should be keenly aware of. More specifically, the importance of this term to a New York shoplifting defense attorney and an accused shoplifter cannot be understated. After all, if you are convicted of Petit Larceny (NY PL 155.25), this misdemeanor crime could land you in jail for up to one year whether the theft involved a $1 pack of gum or two pairs of Cole Haan shoes valued at $500.00 each. This blog entry will focus on asportation and its relevance to any shoplifting or related theft or larceny case in New York.
Whenever you get contacted by an investigator from the New York City Human Resources Administration (“HRA“), its is certainly an acceptable response to be concerned that you are or have been a subject of a potential criminal investigation. Maybe the Bureau of Fraud Investigation or another internal agency of the NYC HRA believes you lied or misrepresented your financial resources or employment when you obtained medical or other benefits. Maybe their is evidence of some other supposed wrongdoing. If accurate and correct, your conduct may have been willful. However, your actions may also may been the result of an honest mistake. Whatever reason the HRA is contacting you by phone or letter, its is critically important to understand your potential exposure and to learn how to protect yourself before you admit to any fraudulent act that can not only compound your situation in terms restitution, but also lead to a criminal prosecution by a District Attorney’s Office.
As a New York criminal attorneys who regularly defends clients against arrest, indictments, investigations and general allegations of theft and fraud, the most difficult cases we encounter are those that are supported by strong evidence of guilt (a/k/a potential proof beyond a reasonable doubt). For example, in a New York Grand Larceny by Embezzlement, a “paper” trail may lead directly to a client’s footsteps. If a crime was perpetrated on a computer, search warrants may reveal emails, log in information and even deleted files supporting the District Attorney’s Criminal Possession of Stolen Property or Forgery indictment. Whatever the crime and whatever the allegation, when evidence is overwhelming from a legal and factual standpoint, the mitigation defense is often the next weapon in your criminal lawyer’s arsenal. The following case result where our client was charged with the felonies of Scheme to Defraud in the First Degree (New York Penal Law 190.65), Grand Larceny in the Third Degree (New York Penal Law 155.35) and Grand Larceny in the Fourth Degree (New York Penal Law 155.30) demonstrates how effective the mitigation defense may be to avoid incarceration or a felony conviction.
It’s fairly irrelevant what you call it. Credit Card Fraud, Debit Card Fraud, Credit Card Theft, Debit Card Theft, Identity Theft…the fraudulent obtaining and use of credit card numbers and accounts is so drastic and commonplace, that barring the dollar amount hitting the tens of millions or more, this type of criminal activity is arguably becoming routine (are you listening Target?!). Most New York criminal lawyers would acknowledge that if you possess a stolen credit card or stolen debit card, you could very well face an arrest or indictment for Criminal Possession of Stolen Property in the Fourth Degree (New York Penal Law 165.45). Further, any competent New York criminal defense attorney recognizes that the theft of a physical credit card is chargeable as Grand Larceny in the Fourth Degree (New York Penal Law 155.30). The question that is an interesting one is what if the accused is smart enough not to possess the actual credit card or debit card? What if he or she merely possesses the account numbers? Simply, if you only possess credit card account numbers (or debit card), are you guilty of either Fourth Degree Grand Larceny (NY PL 155.30) or Fourth Degree Criminal Possession of Stolen Property (NY PL 165.45)?
As “luck” would have it, People v. Bodner, #2012-486, NYLJ 1202639616673, at *1 (Sup., RO, Decided January 15, 2014), addresses the exact issue discussed above. That is, if you merely possess a debit card number or credit card number (or steal the same), is your conduct the same in the eyes of the law whereby you can be arrested for Grand Larceny in the Fourth Degree or Criminal Possession of Stolen Property in the Fourth Degree as if you actually possessed the plastic itself?
Manhattan District Attorney Cyrus Vance, Jr. is at it again. No, Vance’s band of prosecutorial marauders have not just hopped, skipped and jumped from county to county or state to state, but Vance’s seemingly infinitely long appendages have grabbed yet another alleged fraudster. According to the Manhattan District Attorney’s Office website, junior Ponzi schemer and United States Naval Academy graduate, Bryan Caisse, duped friends and former classmates out of more than $1 million when law enforcement finally caught up to him in airport in Bogotá, Colombia. Although in the aggregate the crime(s) exceeded $1,000,000, and therefore could be the basis of a First Degree Grand Larceny arrest, Caisse dodged a proverbial bullet. Instead, it appears that DA Vance’s minions charged Caisse with multiple lesser offenses including Second Degree Grand Larceny and Third Degree Grand Larceny on an individual basis. Of course, avoiding mandatory state prison on a plea or conviction of First Degree Grand Larceny is a hollow victory. There is no doubt prosecutors will ask for, and many judges would sentence, a term of incarceration in a New York State prison.
Prosecutors claim that commencing sometime in 2008, Caisse said he was going to start a company, Huxley Capital Management. Friends and former classmates contributed and gave Caisse more than $1 million. What is right out of Bernie Maddoff’s DIY handbook, it is alleged that Caisse pocket the money for such items as rental payments, car services, personal debts, credit cards, cash withdrawals, and restaurants. Ultimately, when the the “investors” sought repayment, Caisse couldn’t deliver. Prosecutors have gone as far as to assert that Caisse even claimed he was in a car accident to avoid repayment. Unfortunately for some of the investors, it is believed only some folks were paid back from stolen proceeds of others.
What can fairly be characterized as one of Manhattan District Attorney Cyrus Vance’s most notable and significant indictments to date, Gotham’s chief law enforcement officer announced the indictment of dozens of former New York City police officers and firemen in a Social Security fraud scheme tied to 9/11 retirements. As tweeted by Vance, “[t]he charged scam went on for decades & investigators estimate that the amount stolen from taxpayers could reach $400 million.” Based on the allegations, approximately 80 former members of the NYPD and FDNY will face varying criminal counts including Grand Larceny in the First Degree (New York Penal Law 155.42) and Grand Larceny in the Second Degree (New York Penal Law 155.40) based on the alleged conduct of obtaining between $30,000 to $50,000 a year in bogus mental health benefits from the Department of Social Security for one and two decades. Other lesser felonies may be charged in the indictment including First Degree Offering a False Instrument for Filing (New York Penal Law 175.35) and similar offenses.
Because the law allows prosecutors to aggregate the benefit obtained from one “victim” by one alleged perpetrator of a larceny crime, the alleged fake claims made here can be added up for the specific individual associated with a particular theft. Additionally, a ring leader who has his hand in completing the larceny offenses can potentially be charged as an accomplice making him liable for more than what he personally stole. For example, if a former detective, police officer or firefighter is accused of falsely obtaining $35,000 in benefits a year for ten years, that defendant would be potentially liable for $350,000. Because the amount is greater than $50,000, but less than $1,000,000, the applicable crime he would face would be Second Degree Grand Larceny. If the total exceeded $1,000,000, whether the accused was charged as an individual in the aggregate or as an accomplice in multiple crimes, prosecutors would likely charge Grand Larceny in the First Degree. An alternative theory would permit prosecutors to charge the head schemer who had his hands in many pots for each of the separate Second Degree Grand Larceny offenses. Whether one faces a conviction for NY PL 155.42 or NY PL 155.40 is relevant. The former crime carries a mandatory term of imprisonment upon conviction of one to three years and as much as eight and one third to twenty five. The latter offense is punishable by “only” as long as five to fifteen years in prison.
Most New York tax crime lawyers who are also experienced criminal defense attorneys represent clients charged with committing “tax fraud acts” as defined and identified in New York State Tax Law sections 1802, 1803, 1804, 1805 and 1806. These New York tax crimes, however, are certainly not the only potentially felony offenses you may be exposed to should you be arrested or indicted for an illegal withholding or stealing of tax monies. In fact, one of the more common tax crimes investigated in Queens, Brooklyn, the Bronx, Manhattan and even Westchester and Long Island, tax crimes relating to cigarettes has spiked in recent years. Codified throughout various subsections of New York Tax Law 1814, failure to pay taxes on certain tobacco products or the possession and transportation of untaxed cigarettes is can potentially lead to a significant period of incarceration. The ease by which prosecutors in New York can charge a person with violating one of the many crimes relating to improperly or untaxed cigarettes is highlighted by the subject of this blog entry, People v. Ran Yang, 2009 NY Slip Op 50793(U) [23 Misc 3d 1117(A)].
In pertinent part, New York City Administrative Code 11-4012 (a)(1) states that if you willfully attempt in any manner to evade or defeat any tax imposed [in this section] or the payment of that tax you are guilty of a misdemeanor. Further, New York City Administrative Code 11-4012 (b) makes it a misdemeanor crime if you possess or transport for the purpose of sale any unstamped or unlawfully stamped packages of cigarettes subject to tax. Alternatively, if you sell or offer for sale unstamped or unlawfully stamped packages of cigarettes it is also a misdemeanor crime. These two criminal violations of the New York City Administrative Code generally mimic, but are distinct crimes, from New York State Tax Law 1814(a)(1) and New York State Tax Law 1814(d). The latter of these crimes involve the illegal transportation and sale of unstamped or unlawfully stamped cigarettes while the former is a more generic tax crime.
New York City government, from Manhattan to Brooklyn and Queens to the Bronx, is on the lookout for ways to plug its various financial holes. Sometimes this results in spending cuts while other times agencies are looking to claw back monies expended or lost. Unfortunately for many struggling people, those who have received benefits associated with the New York City Human Resources Administration (“HRA”) may be a target not only of an administrative investigation, but a criminal one that could lead to a felony arrest.
Crotty Saland PC, a New York criminal defense firm established by two former Manhattan prosecutors, has handled numerous investigations and inquiries by the Human Resources Administration into alleged benefits that clients were either over paid or not entitled to receive. These allegations have involved “thefts” and “frauds” from as little as approximately $20,000 to nearly $100,000. Fortunately for these clients, through negotiation and diligence, not only was Crotty Saland PC able to reduce the amount owed by thousands of dollars and set up a reasonable payment plan, but these clients avoided the fear, embarrassment, uncertainly and potential incarceration as a result of an arrest for Grand Larceny, Offering a False Instrument for Filing and other similar felony crimes.
Its a common theme or perceived defense to shoplifting in New York City that routinely rears its head from those accused of shoplifting and attorneys not necessarily familiar with how to defend a shoplifting arrest. “I didn’t leave the store so how can I be guilty of a crime involving theft or stealing? How do the crimes of New York Penal Law 155.25 or New York Penal Law 165.40 apply to me?” Even more common than the question, the answer is always the same. Yes, an experienced shoplifting attorney and criminal lawyer knows that each case is fact or evidence specific, but you can be arrested and charged with the shoplifting crimes of PL 155.25 or PL 165.40 without taking a step outside the walls of the retail store where you were arrested.
A recent decision, and one I am confident your criminal attorney or New York shoplifting lawyer or should have read, that addresses this precise issue is People v. Bailey, 2013 NY Slip Op 51021 – NY: Appellate Term, 1st Dept. 2013. In Bailey, the defendant moved to dismiss a complaint (an information) for facial sufficiency because the defendant believed that the conduct described in that complaint did not satisfy the elements and establish the minimum criteria for violating the Petit Larceny and Fifth Degree Criminal Possession of Stolen Property statutes. There, the People drafted the accusatory instrument stating in substance that the defendant “removed six pairs of earrings from a display, ‘conceal[ed]‘ them inside her jacket sleeve, and ‘walk[ed] past more than one open register and move[d] to another floor in the store in possession of the property and without paying for it.'”