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When Possessing a Stolen $5 Gift Card to Starbucks Becomes a Felony in New York: Understanding New York Penal Law 165.45(2)

As we’ve often mentioned, under the New York Penal Law (often called the New York Criminal Law or New York Criminal Code), the seriousness of a vast majority of larceny-related crimes is usually based not upon what type of property is stolen, but rather, the value of the stolen property in question. In limited circumstances, however, the type of property stolen can actually play a larger role in the charge a defendant will face than the property’s dollar value. Under New York Penal Law 165.45, it is a Class E felony to knowingly possess stolen property valued at more than $1,000, or stolen property that falls within a specific class of items. These items include: credit cards, debit cards, public benefit cards, firearms, motor-vehicles, religious items, and some pre-cursor chemicals used in the manufacture of methamphetamine (you do not often come across this last category very often). If a defendant is found to be in knowing possession of stolen property that falls within any of these categories, he or she can be charged with a felony, regardless of the stolen property’s dollar value.

While these items may seem plainly defined, your New York criminal defense attorney knows that in some instances, courts have allowed the scope of these terms to expand in unexpected directions. One specific instance of this can be seen in a decision rendered by the First Department Appellate Court in its interpretation of the term “debit card.” When most people think of what is meant by a “debit card,” their immediate thought is generally a card issued by a bank for withdrawing funds from one’s personal bank account. To others, “debit card, “credit card” and even “ATM card” are all interchangeable for practical every day purposes. Under New York law, however, courts have found that what can be considered a “debit card,” for the purposes of New York Penal Law 165.45(2), is not merely limited or constrained by our own definitions.

In People v. Stokes, 2010 NY Slip Op 00009 [69 AD3d 409] January 5, 2010, a defendant was found to be in possession of a number of stolen gift cards. When the defendant was charged, prosecutors ignored the value of the cards, instead alleging that the defendant actually possessed stolen debit cards that had been issued by the store. Thus, despite the low value of the gift cards, the defendant was charged with violating NY PL165.45(2), a felony. Instead of facing up to one year in county jail for having property worth $1,000 or less, Stokes faced up to four years in prison on the sole basis of the nature of the property, ie, an alleged debit card (keep in mind that each stolen debit card is a separate and distinct crime).

After trial, Stoke was convicted of NY PL 165.45(2). He appealed. In his appeal, Stokes challenged the sufficiency of the evidence against him. He argued that because there was no business relationship between the card- issuer and any particular card-holder, like the existence of a bank account, the gift cards could not be considered debit cards within the meaning of the statute. Ultimately, the Court did not agree with the defendant’s argument. Referencing General Business Law 511, the Court explained that for the purposes of the applicable subsection of Criminal Possession of Stolen Property in the Fourth Degree, the term “debit card” is defined as, “a card. . . issued by a person to another person which may be used, without a personal identification number, code or similar identification number, code or similar identification, to purchase or lease property or services.” Comparing this definition with the evidence at its disposal, the Court determined that a gift card easily fit within the meaning of the terms. To begin with, a gift card somewhat obviously comes in the form of a “card,” as required by the statute. Next, money placed upon the card can be used for the purchase of property. Finally, no personal identification number is required to make these purchases. Therefore, the gift cards submitted as evidence were sufficient to satisfy the literal meaning of the statute.

In rejecting the defendant’s argument, the Court further noted that the statute did not require that a specific person be named upon a debit card. Additionally, the statute made no mention of any requirement that a business relationship exist between card-issuer and card-holder. Therefore, the gift card could properly be considered a “debit card” within the meaning of the statute. If nothing else, Stokes should make it clear that what you and I may think of as a “gift card” to Starbucks or Macys may in fact be a debit card. As such, if that debit card is stolen, whether it contains $500 or $25 in useable funds, its mere possession can be ratcheted up to a felony offense. It is worth noting, as I briefly did above, what may compound matters is the fact that each separate stolen debit card is the basis for a new crime.

To get a better understanding of New York’s theft statutes including the felonies of Fourth Degree Grand Larceny, Third Degree Grand Larceny and even more serious offenses, follow the hyperlinks. The websites and blogs below are also tremendous resources for these larceny and theft crimes and are easily searchable to for information ranging from legal decisions, cases in the news and criminal statutes.

Established by two New York criminal defense attorneys who previously served as Manhattan prosecutors, Crotty Saland PC represents clients accused of theft and white collar crimes in the New York City and surrounding areas.

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