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When Can NY Prosecutors Aggregate and Combine Separate Thefts to Increase a Petit Larceny to a Grand Larceny

The difference between a felony larceny arrest when compared to a misdemeanor larceny crime in New York is significant. After all, felonies are crimes that are more likely to negatively impact professional licenses, immigration statuses, and other privileges and rights. Further a Grand Larceny conviction, as opposed to a Petit Larceny conviction, carries a greater potential term of incarceration. In New York, for example, a PL 155.25 (Petit Larceny) conviction is punishable by up to one year in jail while a PL 155.30 (Fourth Degree Grand Larceny) or PL 155.35 (Third Degree Grand Larceny) conviction is punishable by up to four years and seven years in a New York State prison respectively. Other Grand Larceny crimes such as Second or First Degree Grand Larceny are punishable by even greater years of incarceration.

What the above information highlights is the fact that should you face an arrest or indictment for a larceny crime in New York, one of the critical questions you should ask is whether or not the dollar amount of the theft can be decreased thereby lowering the degree of the crime. In concrete terms, can a Third Degree Grand Larceny be reduced to a Fourth Degree Grand Larceny or a Fourth Degree Grand Larceny be knocked down to a Petit Larceny? The following blog entry will analyze the aggregation scenario where crimes can be increased or enhanced and one worthy of discussing with your own criminal lawyer in the event it is on point with your case.

In People v. Malcolm, 2015 NY Slip Op 6829 – NY: Appellate Div., 2nd Dept. 2015, the defendant was arrested after he was observed stealing property and items from a Home Depot. Regardless of the the specific items, on each date the theft was of the misdemeanor variety. In other words, each time the defendant was recorded and observed on video he was caught stealing property valued $1,000.00 or less. As such, the defendant argued that each offense was a separate Petit Larceny crime of PL 155.25. This misdemeanor, as noted above, is punishable by only up to one year in jail. Contrary to the defendant’s assertion, however, the prosecution aggregated each count or incident into one greater theft in excess of $1,000.00 and secured a conviction at trial for violating the Fourth Degree Grand Larceny statute of PL 155.30. Again, as addressed above, this crime is publishable by a sentence as great as four years in prison.

The question raised on appeal was how, why or when can the prosecution aggregate or add up thefts into one action? Here, the Court found that the thefts could be added together to enhance the crime. As stated by the Court:

The evidence established that the defendant stole “‘with a single [ongoing] intent, carried out in successive stages’ (People v Rossi, 5 NY2d at 401), and that this was not merely a series of distinct petty thefts (see People v Daghita, 301 NY 223, 225 [affirming the defendant’s conviction of a single continuing grand larceny where he stole a ‘considerable quantity of merchandise over a period of time’ from the same store and ‘used a large portion of it to furnish his home and to outfit his family’]; see also People v Henderson, 163 AD2d 888; cf. People v Seymour, 77 AD3d 976, 980 [insufficient proof that two thefts from the same store constituted a common scheme or plan, where the defendant stole one television during the first incident, a variety of merchandise during the second incident, and each theft was perpetrated in a different manner, since ‘there was no evidence of the defendant’s intent to commit fraud or of his intent to engage in a plan of continuous fraud’]).”

The rule seems fairly clear in definition, but is one that requires an analysis as per the facts alleged in a particular case. At bottom, was there a shared intent and was the conduct ongoing. If so, and you are charged with a larceny crime in New York, be prepared for the prosecution to raise the level of your offense to much more serious crime and equally significant degree of potential incarceration.

To learn more about New York theft and larceny crimes including Petit Larceny or any degree of Grand Larceny, review this blog or the websites and blogs listed below.

Crotty Saland PC is a New York criminal defense firm located in lower Manhattan and serves clients throughout the New York City region. The founding New York criminal lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorneys Office.

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