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What are the Different Types of Theft Crimes in New York: Larceny by False Pretense vs. Larceny by False Promise

Thefts and larcenies in New York can take many different forms. New York State Penal Law 155.05 provides the various theories on which a criminal prosecution for larceny can be based. The distinctions between these various kinds of theft can be subtle, but identifying those distinctions can have an enormous impact on a criminal case. Two of these sub-types of larceny are commonly referred to as Larceny by False Pretense and Larceny by False Promise, which seem almost identical by their title, but describe two significantly different circumstances and allegations.

Historically, the crime of larceny was formulated in England under the common law, meaning it was a judicial creation. In its early days, larceny only included thefts that involved stealing from another person’ property or from on their person. However, that limitation was worn away over time, particularly due to an increase in trade and commercial business, which required that people’s interest in their property be protected even when that property was out of their possession. The way in which the English judiciary and legislature accomplished this was by creating certain legal fictions whereby property that was already in another person’s possession was at some point deemed to be “taken” from the owner by that other person when certain circumstances or conditions were met. This required categorization and descriptions of those circumstances in which a larceny would be deemed to have taken place.

In English courts, and in New York courts prior to the codification of these crimes in the Penal Law, judges typically construed these situations as narrowly as possible for fear of criminalizing conduct that really amounted to no more than a breach of contract or some other civil breach. In 1965, the present New York State Penal Law was adopted, which eventually explicitly recognized and detailed the requirements for establishing a theft based on making of a dishonest promise, Penal Law 155.05(2)(d), and theft based on false pretenses, Penal Law 155.05(2)(a).

With regard to larceny by false pretenses, the Penal Law actually explicitly incorporates this history and common law, and requires a false material statement about a past or presently existing fact. With regard to larceny by false promises, the Penal Law requires that the crime occurs “pursuant to a scheme to defraud, [a person] obtains property of another by means of a representation, express or implied, that he will in the future engage in particular conduct, and when he does not intend to engage in such conduct.” Essentially, larceny by false promise requires that an individual has made a promise while harboring a present intention not to perform.

The distinction is subtle, but clear, and it is particularly important given that larceny by false promise comes with a special protection for the accused that the intent to steal or defraud may not be established solely by the fact that the accused person did not perform what they promised to do. As anyone can see, this goes right back to the historical concerns of English judges of criminalizing what is really a civil breach of contract, and nothing more. Going even further, larceny by false promise “may be based only upon evidence establishing that the facts and circumstances of the case are wholly consistent with guilty intent or belief and wholly inconsistent with innocent intent or belief, and excluding to a moral certainty every hypothesis except that of the defendant’s intention or belief that the promise would not be performed.” Penal Law 155.05(2)(d). It’s clear that these historical concerns of chilling business and criminalizing contractual disputes are still with us today.

In People v. Norman, 85 N.Y.2d 609 (1995), New York’s highest court had to make exactly this distinction in considering the appeals of multiple defendants that raised essentially the same issue – did the evidence at trial establish larceny by false pretenses or larceny by false promise. Often times, if it’s the former, a conviction will stand, and if it’s the latter, the conviction will be overturned. This is because of the special requirements and protections that apply in a larceny by false promise case, which are much more difficult for a prosecutor to meet.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent clients in Larceny by False Promise, Larceny by False Pretense and other New York larceny crime or theft-related offense throughout the New York City and Hudson Valley regions.

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