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Understanding the Elements of “Taking” and “Owner” in a New York Grand Larceny Arrest and Case

Grand Larceny in New York is a theft or stealing when the value of the property wrongfully taken into your possession is greater than $1,000.00. This type of theft is defined as a Fourth Degree Grand Larceny according to New York Penal Law 155.30. As repeatedly noted throughout countless blogs, when the value is more than $3,000.00 the crime is elevated to Third Degree Grand Larceny as codified in New York Penal Law 155.35 as long as the amount does not exceed $50,000.00. Tucking away this basic understanding of these offenses, an element that the prosecution must prove beyond a reasonable doubt is the “taking” element while also identifying who the custodian is of that property or rightful owner. This entry addresses the legal concept of “taking” in a Grand Larceny and unlawful transaction as well as better defining who, and is not, an owner.

In People v. Rodriguez, 2017 NY Slip Op 7419 (1st Department 2017), an uncharged individual deposited a stolen check into the defendant’s account that the defendant opened approximately one day before. This unknown person used the defendant’s debit card and PIN number and the defendant later withdrew the proceeds of the stolen check at three different banks over the course of four hours.

The defendant’s first argument was no “taking” occurred because he only exercised control over the money, but not the check itself. The Court quickly shot down that particular line of defense and appeal. Simply, the defendant exercised his dominion and control over the check and the proceeds, “in a manner wholly inconsistent with the owner’s rights” (People v. Hardy, 26 NY3d 245, 250 (2015)) when he accessed the monies wrongfully placed in his account and then removed those dollars. It was the money, not the check, which was central to this theft. The larceny crime and the fact that the value of the property was in excess of $3,000 was not due to the physical check, but the money transferred into and illegally removed from the defendant’s bank account.

Arguing further, the defendant claimed that he in fact did not steal the funds from the rightful owner because the monies were in his own account. Dismantling this argument, the appellate court rightfully recognized that “An ‘[o]wner’ is ‘any person who has a right to possession [of the property] superior to that of the taker, obtainer or withholder’” as set forth in New York Penal Law 155.05(5). Clearly, the company that rightfully issued this particular check had a greater right to the possession of the monies in the defendant’s account if not the only right. As such, merely because the dollars were in the defendant’s account did not give him any right or a superior right to those dollars.

While no criminal defense attorney can be faulted for trying to think out of the box, the decision rendered by the First Department is consistent with the New York Penal Law. Both “taking” and  “owner” not only encompass regular and common sense definitions, but courts will not examine those elements in an overly constrictive manner to allow crimes to occur.

To better understand and learn about the elements of a New York felony Grand Larceny offense, Petit Larceny misdemeanor or other New York theft crimes and laws, review the content found here or below.

Crotty Saland PC is a New York criminal defense firm focusing on crimes relating to Embezzlement, Extortion, and other theft and fraud related offenses. The New York criminal defense lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorney’s Office and represent clients as both the accused and as victims of Grand Larceny crimes throughout New York City, the Hudson Valley and numerous of New York State municipalities.

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