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Multiple Convictions for Possessing the Same Stolen Property Over a Period of Time: Understanding Jeopardy & New York Penal Law Article 165

Under New York’s larceny laws and theft crimes statutes, certain crimes and offenses are completed at the time they are committed. Take, for example, Grand Larceny, pursuant to Article 155 of the New York Penal Law. Under New York Penal Law 155.30, a person commits Grand Larceny in the Fourth Degree when he or she steals a piece of property, regardless of its type or nature, with a value in excess of $1,000. For the purpose of this particular statute, a person is considered to have stolen property when he or she takes, withholds, or obtains the property of another person with the intent of depriving that person of the property. So long as the person possesses the property in question with the intent to deprive another person of that property, the crime is considered complete at the moment that he or she takes the property. The property need not be in the accused’s possession for a minimum of one hour, one day or one week to have perpetrated the crime of NY PL 155.30 or any other degree of Grand Larceny. It is the physical taking that is the hallmark of any New York Penal Law Article 155 crime.

While the rule above holds true for the vast majority of offenses, the nature of other larceny-related crimes can be considered more ongoing or part of a greater course of conduct. Under New York Penal Law 165.45, a person commits Criminal Possession of Stolen Property in the Fourth Degree when he or she knowingly possesses stolen property with a value more than $1,000. While the crime occurs when the defendant first comes into knowing possession of the property, the offense continues for as long as the person is in possession of that property. In other words, you could be arrested or “get in trouble” with the law whether you are found to be in this possession of stolen property minutes or weeks after its theft. The nature of possession, unlike a taking, can go on for an extensive period and does not end until that possession no longer exists.

As a New York criminal defense attorney can explain to you, the ongoing nature of certain offenses can sometimes have important implications on your case. If, for instance, a defendant is found to be in possession of the same piece of stolen property on separate occasions, is it conceivable that he or she might be charged with two separate counts of Criminal Possession of Stolen Property? In other words, can you not only be arrested but convicted two or three times for being in possession of the same LED Samsung television you attempted to pawn off at three separate shops or stolen diamond ring you tried to sell back to two jewelry stores? In this circumstance such as these, because of the ongoing nature of the offense, your criminal defense lawyer may be able to make a double jeopardy argument in your favor should prosecutors seek to duplicate the same charge.

In People v. Miernik, 284 A.D.2d 919 (4th Dept. 2001), a defendant was accused of using the same stolen credit card on the same day, but at two separate locations. Prosecutors charged the defendant twice with similar offenses, based upon the two individual transactions. One of the charges that prosecutors alleged twice against the defendant was a violation of New York Penal Law 165.45, Criminal Possession of Stolen Property in the Fourth Degree, a Class E felony. The defendant pleaded guilty to both charges. After the trial court accepted his plea, the defendant appealed the conviction. He did not allege that an error had been made in the proceedings, but rather, that his conviction on two counts of possessing stolen property represented a violation of his constitutional rights. Ultimately, the Court agreed.

Under the United States Constitution, there are certain inalienable rights guaranteed to every citizen. One of these rights, guaranteed by the 5th Amendment, is freedom from facing double jeopardy for one’s crimes. Under the 5th Amendment’s double jeopardy clause, it is guaranteed that every citizen will not be tried twice for the same crime by the same party. In the defendant’s case, the Court determined that by charging the defendant twice with Criminal Possession of Stolen Property, prosecutors had essentially charged him two times for what amounted to the exact same continuing offense.

Given the circumstances, the Court was correct in reaching this conclusion. As we discussed, unlike larceny, possession of stolen property is an ongoing crime. If the defendant had stolen the same credit card on two separate occasions, he could likely be tried twice for Grand Larceny (a theft of a credit card is automatically a felony in New York). But here, the defendant used the same credit card in his possession during both transactions that he made. Based upon this, he was improperly convicted on two separate counts of possessing stolen property.

Had the defendant possessed two credit cards, as opposed to one that he used twice, prosecutors might have charged him with Criminal Possession of Stolen Property by alleging one card in the first indictment and another card in the second (like the theft of a credit card, possession of a stolen credit card is a felony for each individual card). Again, because that was not the case in Meirnik, the defendant’s plea was vacated.

To better understand New York crimes, statutes and procedures involving the offenses of Criminal Possession of Stolen Property and Grand Larceny, follow any of the links above or below.

Established by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC represent the accused throughout New York City and beyond.

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