A question that I routinely field as a criminal defense attorney and sealing lawyer in New York is whether or not a mistake made in one’s youth relating to a conviction for petty theft, stolen property, shoplifting or larceny can be sealed or expunged later in life. Although there is no short answer to the question, the answer is both yes and no. Yes, New York now permits or allows a person convicted of Petit Larceny, Fifth Degree Criminal Possession of Stolen Property, New York Penal Law 155.25, New York Penal Law 165.40 and other crimes relating to shoplifting to have those offenses sealed as of October 2017. However, the answer still remains a firm “no” as to expunging these crimes. Despite this lack of expungement, however, because New York Criminal Procedure Law 160.59 is fairly expansive as to sealing, the potential value of a motion to seal pursuant to NY Crim. Pro. Law 160.59 cannot and should not be overlooked by anyone who wants to shield themselves from their criminal past. In fact, a successful application for sealing pursuant to NY CPL 160.59 can “block” the prying eyes of potential public or private employers.
When you are a professional and your career depends on your name and character, the mere allegations of an arrest can be devastating. An allegation is often the equivalent to a conviction. Whether you work in banking and finance, you are regulated by FINRA or the FDIC, you are an attorney of physician that maintains a professional license, or the product you sell is “you,” an arrest in New York for a crime of fraud, deceit or theft is life altering in the most adverse way. Recently, a client arrested for stealing clothing from Bergdorf Goodmans in Manhattan faced such a embarrassing dilemma when she was accused of shoplifting gloves retailing for well north of $1,000.00. Technically a felony shoplift as a class “E” felony of Fourth Degree Grand Larceny, New York Penal Law 155.30, our client was fortunate enough to receive a Desk Appearance Ticket (DAT) for Petit Larceny, a class “A” misdemeanor. While the criminal complaint ultimately reflected Penal Law 155.25 and Penal Law 165.40, the latter offense is Fifth Degree Criminal Possession of Stolen Property, the crimes our client faced technically involved felonies due to the value of the clothing our client was accused of shoplifting after our client exited the store without paying for the property.
Despite the magnitude of potential felony charges, the uncertainty of what might happen to our client’s otherwise pristine and clean record, the New York criminal defense attorneys and shoplifting defense lawyers at Crotty Saland PC delivered the best result possible for our client in this New York City shoplifting arrest. No, our client did not receive a Disorderly Conduct or ACD on the PL 155.25 and PL 165.40 arrest, but instead the case was both dismissed and sealed unconditionally.
There are few things more frightening then when you are taken into custody by special agents of the United States government and charged with Federal crimes in a District Court. Whether it is the FBI, Secret Service, IRS or any other agency and whether it’s the Eastern District of New York or the Southern District of New York, the fear and anxiety is equal. Will there be bail? If so, how can you post it and who will sign for you? Will there be conditions of your release? What are the sentencing guidelines that you will face? Is there a mandatory minimum and what is the maximum term of imprisonment you can be held in a Federal prison? Will you seek to cooperate and secure a 5K1 letter from the United States Attorney’s Office? There are countless questions you will likely have that relate to many factors ranging from whether you were initial a subject or target, the length of the investigation and what, if any, steps you and your Federal criminal defense lawyers took to address these countless issues and concerns with the AUSA prior to your surrender.
The fears and concerns identified above were only a few of those faced by a Crotty Saland PC client who was accused of being a key player in scheme whereby stolen and fraudulent tax returns in excess of $2 million were deposited into various banks accounts unknown to any party and immediately withdrawn to the benefit of those engaged in the scam against the United States Treasury and IRS. Accused of, among other crimes, Conspiracy to Exchange and Convert United States Treasury Checks, 18 USC 371, our client faced up to five years incarceration and a $250,000 fine. Concerning to our client, the United States Probation Officer calculated and asserted that our client should receive 30 to 37 months imprisonment. Complicating our client’s predicament further, our client was not a United States citizen and only a few months earlier became a father.
Theft and larceny related arrests in New York involve crimes that not only have immediate impacts in terms of incarceration and criminal charges, but have the collateral consequence that complicate careers and jobs. For example, if you are an employee of New York City, your arrest whether by Desk Appearance Ticket or due to a felony allegation, will trigger a formal action on the part of the administration. What is of critical importance, and something that your criminal lawyer should stress to you, the ultimate outcome of your case. Yes, an arrest is bad, but a felony or misdemeanor conviction is worse. Far worse. Fortunately for a client of Crotty Saland PC, an arrest for Fourth Degree Grand Larceny, New York Penal Law 155.30, resulted in a non criminal violation of Disorderly Conduct. Checking off the box of avoiding a criminal conviction, our client’s shoplifting arrest from Century 21 involving just shy of $2,000.00 in clothing will ultimately be sealed without any public record.
Possessing stolen property in New York is a crime. Its likely surprising to no one – from your second cousin to your criminal defense attorney – that in addition to the theft of property, Petit Larceny or Grand Larceny, when you knowingly possess stolen property you have committed either a misdemeanor or a felony. Without breaking out each and every subsection of Criminal Possession of Stolen Property where certain types of property equate to specific felony crimes, the routine way the NYPD, local or county police, and the District Attorney determine the applicable degree of a Criminal Possession of Stolen Property arrest charge is value based. That means if it the property, no matter what it may be, is less than $1,000.00 it is a misdemeanor and if the value is greater than $1,000.00, $3,000.00, $50,000.00 or $1 million, then the crime is a felony that escalates from an “E” to a “B” respectively.
Well, the above is all great and good, but what if the property you are arrested for possessing was not stolen in the first place? Does it make a difference if you believed it was stolen even though it was not? What about if in fact it was stolen property, but you believed it was not? Why is this worthy of discussion? Because as you can consult with your criminal defense lawyer, should you be charged with any degree – misdemeanor or felony – of Criminal Possession of Stolen property – PL 165.40, PL 165.45, PL 165.50, PL 165.52 or PL 165.54 – and you are either unaware the property was stolen or it in fact was not stolen, then you have a defense to this set of crimes.
Depending how aggressive or creative a District Attorney gets, sometimes what is one simple act becomes multiple criminal charges from the onset of an arrest or at some point during the prosecution. While the law allows an Assistant District Attorney in New York to supersede an information (criminal complaint) or present criminal charges to a Grand Jury that were not initially on a felony complaint, when such actions are taken a criminal defense lawyer must be on his or her respective “game.” Why? Some charges may be obvious on their faces but others not so much. Complicating matters, what may seem like a simply case with limited exposure can ultimately involve a crime with potentially significant consequences. People v. Gavrilov, 2015 Slip Op. 51562 (App. Term 2nd Dept. 2015) is such a case where the conduct and the charged crimes did not exactly coalesce. There, the defendant entered a vehicle and stole some property. Charged with Petit Larceny, New York Penal Law 155.25, and Fifth Degree Criminal Possession of Stolen Property, New York Penal Law 165.40, the defendant also found himself facing Third Degree Unauthorized Use of a Vehicle, New York Penal Law 165.05. Although not a more serious offense, a very interesting question was raised. Did prosecutors overreach by charging the defendant with PL 165.05 or does wrongfully entering and stealing from a vehicle also violate the Unauthorized Use of a Motor Vehicle statute?
“Value.” Say it with me. “Value.” Heck, scream it from the trees or the jury box. “Value!” Sing it from the judge’s chair or the prosecutor’s office. Whether in the Grand Jury or Trial Jury, value is often the most critical if not central element of any Grand Larceny arrest in New York. Sure, there has to be an unlawful taking or stealing (don’t forget to challenge that along with your arrest), but stepping away from the foundation of any larceny or theft arrest, barring the property stolen satisfying a specifically identified object or type of thing, a credit card for example, value is king (or queen). Don’t take my word for it. I’ve only practiced criminal law as a New York criminal defense attorney and both a former Manhattan Assistant District Attorney and Westchester County Town Prosecutor for more than sixteen years. Heck, what do I know…
Most people rightfully think a larceny or theft occurs when they wrongfully and without permission steal or take someone’s property. Usually, but not always, that person refuses to return the property or simply doesn’t tell the victim that he or she took it in the first place. Simply, the rightful owner lost his or her television, mobile phone, car, or good old fashion cash forever. However, in New York, a theft or larceny need not be a permanent taking. In fact, it need not be a taking at all in the common way we think about such acts. According to the New York Penal Law and the plethora of cases that analyze and interpret it (please note the shout out to the “Three Amigos”), a police officer can arrest, District Attorney prosecute and judge or jury convict you of a crime if you fail to return property. How you ask? New York Penal Law 155.05(2)(b) specifically addresses how one can be charged with a Petit Larceny or Grand Larceny Crime in New York when one acquires lost property.
In the State of New York from Manhattan to Buffalo, Brooklyn to Syracuse and Queens to White Plains, the New York Penal Law reigns supreme. While each Judicial Department (there are four) may interpret the law differently, when the Court of Appeals rules, its decision must be followed by all prosecutors, criminal lawyers and judges throughout the Empire State. Regardless of whether you are arrested in New York City or Yonkers, if you are accused of a Grand Larceny or Petit Larceny the law mandates that it occur through one of the statutorily recognized means outlined in New York Penal Law 155.05(2)(a). Charged with PL 155.25, PL 155.30, PL 155.35 or faced with any other arrest for any larceny crime or degree, the wrongful taking must occur by common law larceny by trespassory taking, common law larceny by trick, embezzlement, or obtaining property by false pretenses.
Sometimes in a New York Grand Larceny and Criminal Possession of Stolen Property arrest or trial, a criminal defense attorney challenges the value placed on property that his or her client allegedly stole. For obvious reasons, this is done to potentially reduced the degree and severity of the charged crime and to limit exposure to restitution if and when there is a conviction. This defense may be part of or distinct from an overall plan of attacking the prosecutor’s case, but one step in a defense that should not be ignored. Because of the critical importance value has to any theft, larceny or stolen property arrest, indictment or trial, I have dedicated many blog entries to this subject. This particular entry will examine how the District Attorney can present evidence to a jury as to value without an “expert”. In other words, for example, does law enforcement need the antique car dealer to testify that the vehicle in question is valued at $50,000.01 to elevate the crime from a Third Degree Grand Larceny to a Second Degree Grand Larceny? Is there another means by which evidence can establish this value and therefore the crime of PL 155.40 as opposed to PL 155.35? If so, what are those means?