New York Theft and Larceny Lawyers Blog
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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[2]). 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[4]). 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?

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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.

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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.

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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.

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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.

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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.’”

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If being accused of a New York felony isn’t scary enough, being arrested for a felony crime where your immigration status stands in the balance certainly is. A Crotty Saland PC client accused of stealing more than $100,000 and attempting to steal an additional $275,000 from a client of the bank he managed, faced such fears. Fortunately for our client, however, despite being arrested for Attempted Grand Larceny in the Second Degree (New York Penal Law 110/155.40) and accused of Grand Larceny in the Second Degree (New York Penal Law 155.40), our client ultimately resolved his arrests with a misdemeanor plea to Petit Larceny (New York Penal Law 155.25). A misdemeanor, our client received the equivalent of “time served.” Throughout the entire process since our client’s arrest, prosecutors offered or recommended felony pleas that included as much as six years in prison. If convicted, our client faced an even greater sentence.

Before continuing, and by way of background, a person is guilty of Second Degree Grand Larceny (NY PL 155.40) if and when that person steals property (money, for example) and the value of the property is greater than $50,000, but does not exceed $1,000,000. Obviously, an Attempted Second Degree Grand Larceny (NY PL 110/155.40) is an attempt to commit this crime. A completed Grand Larceny in the Second Degree carries a punishment and sentence of up to five to fifteen years in prison for a first time offender while an attempt to commit that crime carries a sentence of up to two and one third to seven years in prison.

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Calling it a theme may be too strong, but Manhattan District Attorney Cyrus Vance, Jr. is plugging away on his mission to snag, a/k/a, arrest, white collar defendants who commit Grand Larceny and Criminal Possession of Stolen Property felonies in New York City. One look at the Manhattan District Attorney’s Office website will reveal a laundry list of defendants who have either been indicted for or convicted of a theft or fraud crime. In fact, the website even republishes articles by local newspapers on many of the same cases addressed in these various press releases. It need not take a legal scholar to grasp that C. Vance and Company runs one District Attorney’s Office that is serious and aggressive about prosecuting more than Gotham’s street crime.

According to the District Attorney’s Office, the newest “victim,” of law enforcement’s watchful eye is Rickey Smith for stealing more than $250,000 from the low-income Housing Development Fund Corporation. No small number, if true, the potential sentence for Grand Larceny in the Second Degree is as much as five to fifteen years in prison. Even though a conviction for New York Penal Law 155.40 does not require imprisonment for a first time offender, there should be little doubt that prosecutors will seek some amount of jail or prison. In addition to Second Degree Grand Larceny, a Grand Jury also indicted Smith for three counts of First Degree Falsifying Business Records. A lesser felony, New York Penal Law 175.10 is punishable by as much as one and one third to four years in state prison.

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One need not perpetrate an Embezzlement or an Extortion to be arrested or charged with a New York Grand Larceny crime. Heck, outright scheming by forging checks is so “yesterday.” If you want to be on the forefront of Grand Larceny offenses, you have to concoct a solid heist. Although he did not get away with it, according to Cyrus Vance’s Manhattan District Attorney’s Office, Phivos Istavrioglou was indicted by a New York Grand Jury for his alleged theft of Salvador Dali’s 1949 watercolor, “Cartel de Don Juan Tenorio.” While the $150,000 price tag is certainly lost on me (I assume an expert testified in the Grand Jury that the painting is worth more than a 1978 Bob Ross “Happy Little Trees”), Istavrioglou is facing serious crimes and potentially serious time.

According to reports, Istavrioglou strolled into an Upper East Side art gallery, opened up a shopping bag, removed “Cartel de Don Juan Tenorio” from the wall and dropped it right inside. Despite surveillance cameras set up around the gallery, Istavrioglou strolled right out. There can be little doubt that the gallery has some explaining to do in their complete lapse of security when such valuable and historic pieces of artwork are left vulnerable, but maintaing compromised security is not a crime. Stealing, however, is.

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Queens District Attorney Richard Brown is the Energizer Bunny of fraud scheme prosecutors. Running on batteries that never die, DA Brown just announced the arrests and indictments of Hazel Abrams, Aaron Dawkins, Antoinette Duncan, Tamara Easy, Wilburt Gordon, Albert Kopolovich, Raymond Mattison, Rolph Nozine and Jason Wade for their alleged involvement in a Queens Village no-fault insurance fraud scheme. In addition to the felony arrests of these men and women, prosecutors also indicted Queens Integrated Medical Care (previously Arco Medical, P.C). More specifically, these defendant’s now face DA Brown’s wrath for numerous charges including Third Degree Grand Larceny (New York Penal Law 155.35), Third Degree Insurance Fraud (New York Penal Law 176.20) and First Degree Falsifying Business Records (New York Penal Law 175.10). Make no mistake. Having defended individuals for large scale fraud and larceny schemes in Queens, I know DA Brown means business. Even assuming these men and woman have no criminal record, each faces up to two and one third to seven years in prison.

According to the press release, the “fraud factory” at Queens Integrated Medical Care bilked insurance companies out of $150,000. Certainly not a large number in terms of other arrests and indictments handled by that office, the amount of the alleged theft is still significant. Although any theft in excess of $50,000, but no more than $1,000,000 is a “C” felony of Grand Larceny in the Second Degree (punishable by as much as fifteen years in prison), the fraud scheme alleged here actually consists of seven separate indictments. Therefore, the total value of the alleged insurance fraud is not aggregated to increase the degree of the offense.

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