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Legal Sufficiency & the Minimum Requirements of a NY PL 155.25 or NY PL 165.40 Case

Petit Larceny, New York Penal Law 155.25, is one of the most common theft crimes charged in New York, prosecuted by Assistant District Attorneys, and defended by New York criminal lawyers. Like its sister offense of Criminal Possession of Stolen Property in the Fifth Degree, New York Penal Law 165.40, this misdemeanor “shoplifting” crime is one that prosecutors can very easily draft in an accusatory instrument (called a criminal court complaint or information). In fact, in New York City’s boroughs of Manhattan, Brooklyn and Queens, there is fairly boilerplate language that is found in most complaints. Of grave concern to criminal defense attorneys, however, is whether or not the boilerplate language that is plugged into these complaints is legally sufficient and not conlusory (are there enough factual allegations and not mere conclusory statements). Whether an accused finds himself or herself before a judge during an arraignment by way of Desk Appearance Ticket (commonly called a DAT or Appearance Ticket) or after spending 24 hours in the infamous Tombs should the information be legally insufficient an attorney can file a motion for dismissal.

Very briefly, and before addressing the legal sufficiency issue involving common boilerplate language found in accusatory instruments of a PL 155.25 and PL 165.40 cases, we must first address the definition of these crimes. The easiest way to understand the parameters of these offenses is if you steal property not belonging to you and you knowingly possession stolen property with no intent to return in, then you are likely guilty of these respective crimes (this is not the technical legal definition of either Petit Larceny or Criminal Possession of Stolen Property in the Fifth Degree). As long as the value of the property is not in excess of $1,000.00 and it is not of a specified type (for example, stealing a credit card is automatically a felony regardless of value), the crime remains a misdemeanor punishable by up to one year in jail.

Armed with some degree of knowledge, what if you are charged on an information in Manhattan Criminal Court after receiving a DAT for shoplifting or another theft crime? What if the complaint against you merely states that a particular person is the custodian (he or she need not be the sole owner) of the property you possess and that you did not have permission or authority to possess it? Further, what if, in describing how you tried to take or steal the property, the information merely sets forth that you attempted to leave the store? In other words, is it sufficient to establish these crimes (at the information level, not necessarily at the trial level where each element of a crime must be proven beyond a reasonable doubt)? Is more needed? The simple answer is probably not. The bare minimum may be enough even if factually at trial it is not.

In People v. Parlegreco, 2015 NY Slip Op 50247 (NY Appellate Term, 1st Dept. 2015), the defendant “was observed ‘on video’ as he ‘remove[d] three (3) boxes from a FedEx hand truck and exit said building with said boxes.’ Contrary to defendant’s lone contention, the statement attributed to a named FedEx employee, identified as a custodian of the property, that defendant ‘did not have permission or authority to take or possess the property,’ was ‘sufficiently evidentiary in character’ to support a finding that the alleged taking was wrongful (see generally People v Allen, 92 NY2d 378, 385 [1998]). In other words, at this stage prosecutors were not required to further establish the relationship between the custodian and his control or ownership over the property or greater detail as to how in fact he was the custodian. It was enough to only state conclusory that this person was in fact a custodian and could assert the defendant had no right to it.

Similarly, in People v. Chkhartishv, 2015 NY Slip Op 50240 (NY Appellate Term, 1st Dept. 2015), the information alleged that the defendant concealed some fragrances and attempted to leave the store without paying. Devoid of any description or factual contentions as to how the items were concealed and how the defendant attempted to leave the store (were the fragrances placed underneath clothing in a bag or in pocks and did the accused walk passed cash registers and open the door to exit, for example?), the court held that “[n]o additional evidentiary details were required for the People’s pleading to provide ‘adequate notice to enable defendant to prepare a defense and invoke his protection against double jeopardy’ (People v Kasse, 22 NY2d 1142, 1143 [2014]; see generally People v Olivo, 52 NY2d 309, 315-316 [1981]).

The above two cases clearly demonstrate the easy lift prosecutors must surmount when drafting a complaint or accusatory instrument. Yes, you may not truly have concealed property or attempted to exit an establishment, but for the purpose of giving you legal notice of your purported crimes it is sufficient. Might you have a defense based on fact or evidence? Absolutely. But a motion to dismiss at this stage in the process may not be the means by which you and your attorney beat back the arrest charges for your exoneration.

To read the wealth of blog entries, legal decisions and other commentary provided by Crotty Saland PC about New York’s theft and larceny misdemeanors and felonies including the shoplifting crimes of NY PL 155.25 and NY PL 165.40, read through the blogs, websites and links found here and below.

Crotty Saland PC is a New York City criminal defense law firm staffed and founded by former Manhattan prosecutors. The New York criminal defense attorneys at Crotty Saland represent clients in New York City as well as many suburban municipalities and counties.

 

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