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When Theft of Services is Actually a Grand Larceny: Distinguishing Services from Commodities in a NY Grand Larceny Arrest

While the overlap between Petit Larceny and the varying degrees of Grand Larceny in New York is clear (Petit Larceny is a “lesser included offense” of Grand Larceny), what is the relationship between Theft of Services and those larceny offenses? Are Theft of Services and Grand Larceny in the Third Degree, for example, mutually exclusive? If one is charged can the other be part of the same arrest as well? If you are stealing a service can you also be stealing property in a manner to satisfy the elements of any New York Penal Law Article 155 crime? In short, the answer to all of this is “yes.”

Briefly, Theft of Services, pursuant to New York Penal Law 165.15, is a misdemeanor offense punishable by up to a year in jail. This crime is often associated with arrests in Manhattan, Brooklyn, Queens, etc., where one intentionally fails to pay a tab at a restaurant or from a cab driver. NY PL 165.15 is a misdemeanor and, in the circumstances above, one is often issued a Desk Appearance Ticket (DAT) at the time of one’s arrest. Although Theft of Services is a crime, New York larceny crimes are equal to and much more serious than this offense. If you intentionally steal property of another (this is not the exact definition), then you are guilty of at least the misdemeanor of Petit Larceny. Should the value exceed $1,000, $3,000, $50,000 or $1,000,000 you are guilty of Fourth, Third, Second or First Degree Grand Larceny respectively. These crimes are felony offenses that have maximum sentences ranging from four years in prison to twenty-five years.

Having established the background of these theft and larceny crimes in New York, again, what is the overlap? It would be a great defense to a Grand Larceny charge if you could establish that your conduct satisfied the elements of Theft of Services and, therefore, could not be charged as Grand Larceny. Sadly for a defendant in this predicament, as noted above, and further analyzed in the legal decision below, one has nothing to do with the other.

In People v. Wilson, 193 Misc.2d 677, 751 N.Y.S.2d 720, 2002 N.Y. Slip Op. 22226, a defendant moved to dismiss an indictment charging Grand Larceny in the Third Degree (New York Penal Law 155.35) under the theory that the prosecution had charged the defendant with the wrong statute. That is, instead of charging NY PL 155.35, prosecutors should have charged Theft of Services pursuant to NY PL 165.15. The difference to the defendant was enormous. Should he be convicted of Theft of Services the defendant faced up to one year in jail. The felony crime of Third Grand Larceny, however carried a sentence of up to seven years in state prison.

The defendant argued that the $20,000 worth of food he and his guest consumed at a restaurant was not a Grand Larceny as charged, but akin to Theft of Services. After all, he was not paying for the service provided by the restaurant. Despite the defendant’s assertion, the court assertively denied that claim. The court first recognized that it is far from atypical for these two offenses to overlap. Further, the court found that the argument set forth by the defendant did not consider the distinction between the “commodity or property itself and the service that actually supplies such commodity.” The Court further explained, citing People v. Neiss, 73 A.D.2d 938, 945 (2nd Dept. 1980):

“By distinguishing between … the commodity as property, and the actual supplying of the commodity as a service and holding that the defendant may be properly prosecuted under theories of larceny (for the actual taking of the property …) and theft of services (for the unauthorized receipt of the service …) we are, of course, cognizant of the substantial overlap between these two types of crimes. Generally, a successful theft of services will result in a theft of the commodity. However, this overlap does not negate the conceptualization of the supplying of the commodity and all that is therein implied …, as a service which is separate and independent from the commodity itself. Nor does the overlap in the criminal statutes prevent prosecution under the more general larceny provisions.”

In concluding that the theft of food was the theft of a commodity and property, the Court refused to dismiss the Grand Larceny charge. It is certainly worth noting that the claim by the restaurant that the value of the food service provided was $20,000 did not relieve the prosecution of from the burden of proving a value in excess of $3,000 (the minimum amount that is required to sustain a conviction for Grand Larceny in the Third Degree). The commodity and property found in the actual food is different than the service and tips associated with it. Whether this avenue of defense under these circumstances was viable is the subject of another blog for another day. The significance of this entry is to clearly show that prosecutors have discretion in the charges the present to a Grand Jury. Merely because your conduct may have violated a lesser offense does not mean prosecutors cannot present evidence of other more serious crimes. In the realm of Grand Larceny crimes in New York there are many.

For a wealth of information about New York theft and larceny laws – from case assessments to the review of statutes – follow any of the links above or review the websites and blogs listed below.

Crotty Saland PC is a New York criminal defense firm. Founded by two former Manhattan Assistant District Attorneys, the New York criminal defense attorneys at Crotty Saland PC represent clients in all white collar and theft allegations in the New York City area from investigation and arrest through hearings and trial.

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