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When Taking Property of Another May Not be Stealing: Understanding Petit Larceny & New York Penal Law 155.25

“Stealing” is a term that we would all likely define in a similar way. Whether it is a shoplifting from Macys, Bloomingdales or Century 21 or it is a theft of a briefcase from a car or subway platform, the New York criminal law requires that certain elements be met. Assuming your shoplift or theft is equal to or less than $1,000 in value, the charge you will face through a Desk Appearance Ticket or a “regular” arrest will be either Petit Larceny (New York Penal Law 155.25) or Criminal Possession of Stolen Property in the Fifth Degree (New York Penal Law 165.40). Both “A” misdemeanors, NY PL 155.25 and NY PL 165.40 are punishable by one year in jail.

Obviously, before throwing your hands up in the air and surrendering to the consequences of an alleged shoplifting or theft arrest, you should consult with a New York criminal defense attorney to identify what defenses you have in terms of challenging the evidence or mitigating your conduct. Assuming it is applicable to the allegations in your arrest for either Petit Larceny or Criminal Possession of Stolen Property in the Fifth Degree, one defense may be to ask a court to dismiss the charges against you because the complaint is not sufficient. In other words, prosecutors have not satisfied the elements of the crimes in the paper filed with the court that contains the criminal accusation. Depending on the circumstances, the following case may be a weapon you and your lawyer utilize for your defense. If nothing else, the case below will help an individual unfamiliar with the legal process in criminal court understand that process a little better.

In People v. Gonzalez, 2011NY031743, prosecutors charged the defendant with multiple crimes including NY PL 155.25 and NY PL 165.40 in a sting operation after police left a bag outside a store and the defendant walked off with it. More specifically, the allegation were drafted in a misdemeanor information (a legal complaint alleging crimes against the accused) as follows:

Police Officer David Bernstein states that he is informed by Sergeant David Cuce (“informant”) that informant observed Police officer Joseph Nebbia place a bag containing a laptop worth approximately $110 on the sidewalk in front of 152 Ludlow Street, New York, New York on April 30, 2011 at about 00:50 hours. PO Bernstein is further informed by informant that informant observed the defendant:

(i) walk over to the bag, pick it up and walk away; (ii) hold the bag close to his body; (iii) walk by a marked police car without attempting to return said property; and (iv) open said bag and look inside.

PO Bernstein is further informed by informant that informant stopped defendant and informant recovered the bag containing the laptop.

Arguing that the information above was not legally sufficient, the defendant argued:

“Under PL []155.25, ‘[a] person is guilty of petit larceny when he steals property.’ ‘A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof’ (PL []155.05 [1]). Further, a person ‘appropriates’ the property of another by ‘exercis[ing] control over it…permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit’ (PL []155.00 [4]).”

In agreeing with the defendant that the information was not legally sufficient, the court indicated there was no evidence or allegation in the complaint that established the defendant’s intent to deprive anyone of the bag and lap top. In other words, the criminal information was just too bare bones. As an example, the court noted there was no statement as to how long the defendant possessed the bag after picking it up, what markings the bag had that indicated it belonged to another person or whether the bag was just trashed or discarded. The court further noted that there was no factual support in the complaint meeting the requirements of NY PL 155.00(4) establishing the defendant’s intent to permanently deprive anyone of this property.

The court’s analysis led it to one conclusion. The case against the defendant should be dismissed. For the reasons the information failed to satisfy the elements of NY PL 155.25, it also failed to establish the same for NY PL 165.40.

As noted above, this case may or may not be relevant to your arrest or Desk Appearance Ticket (DAT) in New York for an alleged violation of Petit Larceny or Criminal Possession of Stolen Property.The principle behind it, however, will always be useful. That is, in addition to merely attempting to mitigate conduct, an examination of any criminal complaint against you may be equally or an even more fruitful defense. If prosecutors cannot meet their burden and your attorney or lawyer can establish their inability to do so, your case may be dismissed. Remember, an allegation is never proof beyond a reasonable doubt.

To learn more about New York’s theft and larceny crimes from misdemeanor to felony offenses, review the links above to the NewYorkTheftAndLarcenyLawyers.Com website and blog or the websites and blogs below.

A New York criminal defense practice established by two former Manhattan prosecutors, the New York criminal defense attorneys at Crotty Saland PC represent clients arrested, investigated and indicted for all larceny and theft crimes in the New York City region.

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