In New York, like any other state, evidence can be either direct or circumstantial. While it would be easy for a District Attorney’s Office and local police department to observe a theft and larceny related crime first hand, crime, or alleged crime, simply doesn’t work that way. Whether the arrest offense is the taking, a larceny, or the criminal possession, certain actions and statements without direct proof can provide the police with probable cause and the prosecution with proof beyond a reasonable doubt. Although this means of prosecuting crimes in New York is relevant to any offense, the following case reflects how it can directly impact an arrest for Criminal Possession of Stolen Property pursuant to New York Penal Law Article 165.
Sometimes the threat of an arrest or prosecution is enough to send an innocent person into a deep depression or panic. After all, if an Assistant District Attorney or detective with the NYPD is asking you questions (never forget your right to counsel and similar right to refuse to answer questions), the hint of wrongdoing is as embarrassing as it is crippling. In the context of a White Collar crime such as a larceny, theft, tax fraud or embezzlement related offense, whether it is your neighbor, employer, accountant or friends, when these people are subpoenaed or merely questioned by law enforcement, the brand of the Scarlet Letter is coming in hot. With or without an arrest, the old adage of “where there’s smoke there’s fire” holds true even if you are free from any wrongdoing. Simply, it is never too early for you and your criminal lawyer to get in front of these types of allegations.
As New York criminal defense attorneys familiar and experienced in every stage of a criminal case from the investigatory inception through trial before a judge or jury, one thing that Crotty Saland PC does with regularity is consult with clients to best get them out in front of any allegation of wrongdoing. A recent White Collar case handled by one of our criminal lawyers demonstrates how this strategy can, in the right circumstance, provide closure to a subject or target while freeing them from even the appearance of impropriety.
Before ultimately declining to prosecute our client, prosecutors in the New York County (Manhattan) District Attorney’s Office investigated an alleged fraud that had the appearance of a Grand Larceny Embezzlement and Second Degree Grand Larceny. Because the nature of the accused theft by our client exceeded $50,000, but was less than $1,000,000, our client not only had exposure to a felony, but a sentence of as much as five to fifteen years in prison. In fact, like any type or form of Grand Larceny in New York, the value dictates the charge. In the event there was an arrest, indictment and conviction, New York Penal Law 155.40 would have left our client vulnerable to not only incarceration, but jeopardized our client’s professional licenses and certifications. Generally speaking, even without going to prison, an accountant, lawyer, physician or any similarly situated professional monitored by FINRA or FDIC regulations, answerable to a legal Bar Association, or any other accrediting body would compromise their livelihood with such an arrest.
Many complaints and accusatory instruments alleging violations of New York Penal Law 155.25 and New York Penal Law 165.40 are “bare bones” and boilerplate. That is, the language is somewhat “plug and play” and generic whereby the item stolen and the value of the property may be changed without substantively altering the paperwork filed in court at your arraignment. Some arrests for Petit Larceny and Fifth Degree Criminal Possession of Stolen Property are processed through a Desk Appearance Ticket (remember, at DAT only shows one charge, but when you appear in court there will likely be more) while others leave you waiting in central booking to see a judge. It is of little relevance where you end up or how you are prosecuted other than one means is more accommodating than the other. Why is it of no consequences? Because irrespective of whether you are charged with shoplifting, theft from an employer, stealing from someone’s home or any other larceny conduct no greater than $1,000, the crime or crimes of PL 155.25 and PL 165.40 remain the same. Moreover, from a legal position, the District Attorney’s Office still has the burden of providing an accused with sufficient notice of the crime or crimes he or she faces and a legally sufficient accusatory instrument so you can prepare a defense to your arrest.
A recent decision by an appellate court addressed the crime of Petit Larceny where a defendant pleaded guilty to PL 155.25 and later challenged the legal sufficiency of the charges. Regardless of the means by which you are arrested for or accused of PL 155.25 and whether it occurred in Manhattan, Brooklyn, Queens or anywhere in New York City or beyond, is not important. The following case is valuable one because it demonstrates the fairly low threshold the prosecution must achieve to move a case forward from arrest to potential trial. When reading this blog and brief entry, keep in mind that legal sufficiency is not the same as and significantly less than the standard required at trial to find guilt beyond a reasonable doubt.
Maybe it was Sephora in Manhattan or Century 21 elsewhere in New York City. It actually makes no difference if its Macy’s, Bloomingdale’s, Whole Foods or some mom and pop store in Queens, Brooklyn, Bronx, White Plains, Yonkers or any other municipality in New York. The standard, some would argue, is ridiculously low. Heck, you may have put the makeup, sweater or food in your own bag because it was convenient or the store didn’t supply a cart (if being environmentally friend and not using plastics is a crime, then guilty as charged!). On its face it seems like a reasonable thing to do. The reaction of store security, however, was quite the opposite. Reasonable? Not at all. Aggressive, accusatory, intimidating? Absolutely. Being embarrassed and signing paperwork, however, may be the least of your worries. If it is alleged that you stole property – regardless of what it may be worth (if anything!) – expect that you will at a minimum be arrested and issued a Desk Appearance Ticket (DAT in NYC) for either Petit Larceny (PL 155.25) or Fifth Degree Criminal Possession of Stolen Property (PL 165.40). To make matters worse, while the DAT for shoplifting may only reflect one of these charges, upon appearing in court you will have the “honor” of facing both misdemeanor crimes.
With a little lay of the land and a scenario that may very well fit into what you were alleged to have done, the question you likely are asking is, “Why was I arrested and why was I charged with a crime for shoplifting if I didn’t step foot out of the supermarket (fill in the store here)?!” Well, read on for your answer…
The difference between a felony and a misdemeanor is drastic. Whether the crime or crimes you are arrested for in New York involve those of the white collar or street variety, any criminal conviction is permanent. With a felony conviction, however, there is greater exposure to collateral consequences. When an offense involves a theft or fraud crime, such as Grand Larceny, Petit Larceny and Criminal Possession of Stolen Property, those secondary issues may actually be first and foremost on your list of concerns after incarceration. For example, are you licensed through FINRA? Do you work at an FDIC insured bank? Are you a legal resident, applying for a visa or interested in becoming a United States citizen? If so, will the felony trigger a review of immigration because it is deemed a Crime Involving Moral Turpitude or and Aggravated Felony?
Staying with larceny and theft crimes that occur in New York City or elsewhere in the State of New York, one of many things you should discuss with your own criminal defense attorney or defense lawyer is whether or not the charge you face can be knocked down or decreased to a less serious crime. Even better, can it be lessened to a non-criminal offense or be dismissed all together? Where you are arrested for and charged with a crime involving theft or larceny in New York, one means to investigate or defensive channel to pursue to limit your criminal exposure and collateral consequences is to attack the manner or method by which the District Attorney establishes value of the stolen property. If the prosecution lacks the proper evidence or your criminal defense lawyer can poke holes in the valuation to decrease it below certain thresholds, then your case can potentially be reduced from a greater felony to a lesser one and possibly out of a felony all together. Certainly, this defense is worthy of exploration in applicable cases and the following blog addresses an example right on point.
There are very strict and unforgiving laws in New York State. The New York Penal law, when addressing financial crimes, has dollar amount thresholds that upon their breach the crime is enhanced. What this means is that if you steal by any means property valued in excess of $1,000 is an “E” felony of Fourth Degree Grand Larceny (New York Penal Law 155.30). If that amount exceeds $3,000 then it is a “D” felony of Third Degree Grand Larceny (New York Penal Law 155.35). The next thresholds are at $50,000 and $1 million. There are corresponding offenses for Criminal Possession of Stolen Property (again, it is value based for the most part barring some exceptions so the nature of the property is irrelevant). Not only is there a concern for an accused that he or she can face incarceration in prison – up to four years on an “E” felony and seven years on a “D” felony – there are other concerns for professionals and foreign nationals. Even without stepping foot in a jail, a conviction can end a career or make a person inadmissible in the future. Potentially, for the latter group of individuals, the offense could be an Aggravated Felony. Due to all of these collateral and direct concerns with felony arrests, it is imperative to formulate a plan when accused of these or any crime and your exposure is great. Unfortunately, a scenario played out for a Crotty Saland PC client who was both a physician and a foreign national.
In New York, Criminal Possession of Stolen Property fits into five separate categories or degrees when value is considered. These are Fifth Degree Criminal Possession of Stolen Property (New York Penal Law 165.40), Fourth Degree Criminal Possession of Stolen Property (New York Penal Law 165.45), Third Degree Criminal Possession of Stolen Property (New York Penal Law 165.50), Second Degree Criminal Possession of Stolen Property (New York Penal Law 165.52) and First Degree Criminal Possession of Stolen Property (New York Penal Law 165.54). The threshold for determining the value or dollar amount for these crimes are $1,000 or less, greater than $1,000, greater than $3,000, greater than $50,000 and in excess of $1 million respectively. Further, other than Fifth Degree Criminal Possession of Stolen Property, each of these crimes are felony offenses. Putting aside valuation (another issues not addressed here is the means by which courts determine or assess value), the basic language of a Criminal Possession of Stolen Property arrest, misdemeanor complaint or felony indictment, is that the accused knowingly possessed stolen property. Further you must also have the intent to benefit yourself or impede the owner from recovering his or her property whether it is money from a bank account, an antique watch or an iPad.
The question posed here is whether you can be arrested, charged with and ultimately found guilty by a judge or jury for any degree of Criminal Possession of Stolen Property even if you did not actually steal the property, were not present when the property was stolen, had no involvement in the actually taking and were not arrested for and charged with Petit Larceny (New York Penal Law 155.25) or any degree of Grand Larceny? The simple and short answer is “yes.”
Fraud arrests are embarrassing. Theft arrests are compromising. Larceny arrests are stigmatizing. Felony arrests in New York? Those can land you in prison. Misdemeanors? By Desk Appearance Ticket or full processing in Central Booking, there is potential for incarceration too. Whether it is a shoplifting arrest or DAT for violating the Petit Larceny statute of New York Penal Law 155.25 or Fifth Degree Criminal Possession of Stolen Property Statute of New York Penal Law 165.40, a fake identification arrest for violating the Third Degree Criminal Possession of a Forged Instrument statute of New York Penal Law 170.20, a failure to pay a cab fare arrest for violating New York Penal Law 165.15, or any other crime involving Forgery, Falsifying Business Records, Theft of Services, Scheme to Defraud or Grand Larceny, if you are regulated through FINRA or FDIC, the ramifications can be a “game changer” to your career and livelihood. While you can potentially avoid reporting certain misdemeanor crimes on your Form U4, if you are charged with any felony (even if it is later reduced or resolved in a non-criminal manner) or convicted of the same, you will have to answer for your alleged actions. Even if the offense you are accused if is merely a misdemeanor (“merely” is a relative term as New York does not expunge criminal convictions for these crimes) and the offense involves fraud, forgery, wrongful taking of property or even false statements or omissions, you will be required to report the alleged infraction. This blog entry will not address the substance and definitions of the above crimes (that can be found throughout this blog and the CrottySaland.Com website), but reporting of these arrests and convictions on your U4 and consequences associated with FINRA regulations and those involving FDIC insured banks.
The difference between a felony larceny arrest when compared to a misdemeanor larceny crime in New York is significant. After all, felonies are crimes that are more likely to negatively impact professional licenses, immigration statuses, and other privileges and rights. Further a Grand Larceny conviction, as opposed to a Petit Larceny conviction, carries a greater potential term of incarceration. In New York, for example, a PL 155.25 (Petit Larceny) conviction is punishable by up to one year in jail while a PL 155.30 (Fourth Degree Grand Larceny) or PL 155.35 (Third Degree Grand Larceny) conviction is punishable by up to four years and seven years in a New York State prison respectively. Other Grand Larceny crimes such as Second or First Degree Grand Larceny are punishable by even greater years of incarceration.
What the above information highlights is the fact that should you face an arrest or indictment for a larceny crime in New York, one of the critical questions you should ask is whether or not the dollar amount of the theft can be decreased thereby lowering the degree of the crime. In concrete terms, can a Third Degree Grand Larceny be reduced to a Fourth Degree Grand Larceny or a Fourth Degree Grand Larceny be knocked down to a Petit Larceny? The following blog entry will analyze the aggregation scenario where crimes can be increased or enhanced and one worthy of discussing with your own criminal lawyer in the event it is on point with your case.
New York theft crimes come in a variety of offenses from misdemeanor to felony and non-violent to violent. Some crimes may be punishable by up to one year in prison while others can land you in prison for as long as twenty five years. When that crime involves a vehicle theft, the value of the car usually has a direct impact on the crime. Some thefts are automatically felonies such as New York Penal Law 155.30(8). This offense, Fourth Degree Grand Larceny, makes it a felony to steal a vehicle valued in excess of $100. However, if the car is worth more than $3,000 or $50,000, the crime would be kicked up to New York Penal Law 155.35 or 155.40 respectively. These offenses carry even greater sentences of imprisonment beyond the four years associated with PL 155.30(8), aka, Grand Theft Auto.
This blog entry will deal not with the actual theft of a car, truck or SUV in New York, but the unauthorized use of the same and what conduct rises to the level of violating NY PL 165.05, Third Degree Unauthorized Use of a Vehicle.