An arrest for a New York Second Degree Grand Larceny charge is a life altering event. An indictment or conviction for New York Penal Law 155.40 is even worse. In fact, an arrest for an degree of Grand Larceny in Manhattan, Queens, Brooklyn, Westchester or any county is potentially devastating. Because of this, it is critical to examine or identify potential defenses with your criminal lawyer right out of the gate. Fortunately, some defendants arrested for or charged with any Grand Larceny crime may actually have a “built in” defense to the theft or larceny allegation against them. For example, can a partner perpetrate a Grand Larceny from another partner when he or she misappropriates partnership funds? After all, partners both have rights to the money and funds, right? In such a case is the best defense one where your criminal lawyer or theft defense attorney cites People v. Zinke, 76 N.Y.2d 8 (1990). There, the Court of Appeals held that “…in New York, partners cannot be charged with larceny for misappropriating firm assets. Indeed…a partner “[can] not steal partnership property.” Further, the “…important point is that limited partnerships are partnerships in the eyes of the law of this State, and as such they come within the rule that partners cannot be guilty of larceny when they steal from them.”
Well, as clear as the law may seem based on this case and other decisions by our state’s highest court, law is not math. Each case is unique and there are often twists that impact the application of those laws. One such example can be found in People v. Antilla, 77 N.Y.2d 853 (1991). In Antilla, the defendant’s now deceased and previously widowed great-aunt gave the defendant control over some of her financial affairs. Further, the great-aunt left the defendant one third of her estate. Shortly thereafter, the great-aunt deposited $180.000 into a money market account where both parties were joint owners.Over the next fourteen months, the defendant withdrew most of the money. Additionally, he received the statements. Ultimately, the defendant left New York and gave up financial control of this great-aunt’s estate other than the money market account where the $180,000 was deposited. Unfortunately for the defendant, a jury convicted him of Grand Larceny in the Second Degree – NY PL 155.40.
The issue or question raised in this case, and briefly addressed above, was can a joint owner or partner in property be convicted of a larceny crime for stealing that property? Here, the Court found that it could, albeit, through an interesting route (there goes the Zinke rule right out the window…)
The Court first noted that the People met their burden of establishing a larceny by false promise when the defendant induced his great-aunt to open a joint account. The People further met their legal burden by establishing the defendant never intended to or believed he would take care of his great-aunt’s financial affairs when he opened the account. As stated by the Court: “The jury’s finding of larcenous intent flowed ‘naturally and reasonably’ from the entire array of facts and circumstances and ‘exclude[d] to a moral certainty’ every hypothesis except defendant’s guilt.”
Addressing the issue of this blog, how could the defendant be convicted of Grand Larceny if, as a joint owner, he was withdrawing money from a partner’s account? Simply….it is “the larcenous creation of the joint account, not defendant’s withdrawals from it, [that] provided the basis for his conviction.” In other words, the Court inferred, if not stated clearly, that if this was a legitimately and honestly opened account and shared between two account holders with the same rights to the property, ie, partners, then an issue would have risen as to what needed to whether a crime of theft was perpetrated. Here, however, there was never a true desire to open an account to assist or benefit the great-aunt. Instead, larcenous intent existed. As such, this partnership, if it could be called that, was fraudulent and a “larcenous creation” from its inception.
The reviews here of Zinke and Antilla are very brief and far from in depth. Are these case decisions that could be utilized by your attorney in your Grand Larceny arrest? What if the theory of your theft is not one of “false promise?” Would it matter? Consult with your own criminal lawyer. Ask these questions. Set your defense into motion.
To learn about all New York Grand Larceny arrests and crimes, follow the respective links above or through the websites and blogs below.
The New York criminal lawyers at Crotty Saland PC represent clients in all Grand Larceny and Criminal Possession of Stolen Property arrests, indictments and trials throughout New York City as well as many suburban counties. The two founding partners at Crotty Saland PC served as Manhattan prosecutors prior to starting the criminal defense law firm.