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I Didn’t Steal the Property, But I Failed to Return It: When Possessing Lost Property is a Crime in New York

Most people rightfully think a larceny or theft occurs when they wrongfully and without permission steal or take someone’s property. Usually, but not always, that person refuses to return the property or simply doesn’t tell the victim that he or she took it in the first place. Simply, the rightful owner lost his or her television, mobile phone, car, or good old fashion cash forever. However, in New York, a theft or larceny need not be a permanent taking. In fact, it need not be a taking at all in the common way we think about such acts. According to the New York Penal Law and the plethora of cases that analyze and interpret it (please note the shout out to the “Three Amigos”), a police officer can arrest, District Attorney prosecute and judge or jury convict you of a crime if you fail to return property. How you ask? New York Penal Law 155.05(2)(b) specifically addresses how one can be charged with a Petit Larceny or Grand Larceny Crime in New York when one acquires lost property.

New York Penal Law 155.05(2)(b), larceny by acquiring lost property occurs as follows:

“A person acquires lost property when he exercises control over property of another which he knows to have been lost or mislaid, or to have been delivered under a mistake as to the identity of the recipient or the nature or amount of the property, without taking reasonable measures to return such property to the owner .”

Sounds fairly straight forward, but in practical senses it is not. What if, for example, you found a wallet, but made no attempt to return the credit cards or cash? What if you found a number in that wallet, called it once, and never followed up? Being lazy is one thing, but what if you found that same wallet and demanded a “ransom” for its return even if it was quite insignificant?

In People v. Graves, 12 Misc.3d 516 (NY Crim. Ct. 2006), a variation of the above scenarios played out. There, the defendant was charged with Fifth Degree Criminal Possession of Stolen Property pursuant to New York Penal Law 165.40. Not accused of the actual taking at the point in time the property went missing, the theory was that the defendant possessed this stolen property that he found and did not readily return. The accusatory instrument alleged that the complainant’s cell phone was stolen on day one. The following day the complainant called the cell phone and the defendant answered. The defendant then demanded a sum of money for the return of the cell phone. Shortly thereafter, the complainant met the defendant who asked for the money. The police arrested the defendant and recovered the mobile phone.

According to the court:

“If it be assumed that the cellphone had been lost by complainant, the same result would follow. Since the finder of lost property who learns the identity of the rightful owner has an obligation to take reasonable measures to return the property, conditioning the return upon the payment of what amounts to a ransom constitutes a larceny.” As such, if the prosecution decided to do so, they could add the crime of Petit Larceny, PL 155.25 to the complaint.

People v. Graves is interesting on multiple levels (at least to criminal lawyers in New York handling theft, larceny and criminal possession of stolen property arrests and cases…). First, it is representative of the fact that a theft in New York is not what many think. Grabbing a purse and running off or embezzling from your employer certainly qualify, but so does a wrongful withholding in the right circumstances. Second, a non criminal action, for example finding a lost laptop computer, can start off with the greatest of intentions of returning the property, but if you turn the event or incident into a profit seeking opportunity, your initial goodwill likely will not protect you from prosecution in a criminal court.

Don’t be nervous if you find lost property because you are fearful the police or prosecutors will ultimately charge you with a crime. Honesty goes fairly far in life, but when in doubt take the steps to protect yourself from going down a road that can land you before a judge facing felony Grand Larceny or misdemeanor Petit Larceny charges. If you find property belonging to another person, think it through before you seize the opportunity to keep it or make a few dollars.

Further reading and materials about the substantive New York Penal Law crimes involving theft and larceny as well as their application and review by New York courts is available on this blog and the NewYorkTheftAndLarcenyLawyers.Com website. Additional easy to read information is available on the sites and blog linked below.

Crotty Saland PC is a New York criminal defense law practice representing clients in New York City as well as many surrounding suburban municipalities and counties. Both founding New York criminal defense lawyers at Crotty Saland PC served as prosecutors in Robert Morgenthau’s Manhattan District Attorney’s Office.

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