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Deprive and Appropriate: Critical Elements in a New York Grand Larceny Prosecution

What is “stealing” you ask? A mere taking of someone’s property without their permission or authority? Yes, in part, but actually much, much more. While those unfamiliar with the criminal law may see theft, larceny and stolen property related crimes through their own respective lenses, the New York Penal Law defines these offenses – Petit Larceny, Grand Larceny and Criminal Possession of Stolen Property – with elements that every prosecutor must prove beyond a reasonable doubt and every criminal defense lawyer actively challenges to prevent the District Attorney from doing so.

Drafted by the legislature into Penal Law 155.05(1), to violate either misdemeanor Petit Larceny or any degree of felony Grand Larceny, you must have the intent to deprive another person of his or her property or appropriate the same for yourself or another party. Not only must you have this goal when taking the property, but you in fact must do so successfully and wrongfully.

Further outlined in Penal Law 155.00(3) and 155.00(4) respectively, the code defines both “deprive” and “appropriate”. Factors considered by judges tasked with examining the sufficiency of these offenses must determine whether, for example, the property was permanently withheld, kept for such a long time frame that a major portion of its economic value was sabotaged or disposed of in a manner that likely left the owner without the ability to secure it. Alternatively, these same judges must ascertain if the party that took the object controlled the same to a sufficient degree or disposed of it to his or her benefit. When it comes to stolen property, the District Attorney must prove that an accused possessed the property knowing that it was stolen and with the intent to benefit himself or prevent its recovery by the rightful owner.

Confusing? Usually not at all when applied to every day circumstances coupled with common sense. However, because criminal justice is anything but routine, sometimes prosecutors push the proverbial envelope in the name of subjective justice thereby raising legal flags. One recent example is found in People v. Lewis, Slip Op. 50900 (N.Y. Crim. Ct. 2019). There, an undercover officer attempted to buy marijuana and cocaine in what the NYPD calls a “buy and bust”. In these stings, drugs are purchased with pre-recorded or marked money and the seller is then arrested. Despite their plans, however, after giving Lewis $20 of PRBM (pre-recorded buy money), Lewis failed to return despite the alleged agreement that he would return with the weed and controlled substances. In the accusatory instrument the officer not only mentioned the conversation regarding the drug purchase, PRBM, and his failure to return with the goods, but the recovery of the PRBM from the defendant’s person.

Deciding that the allegations failed to have legal muster and this deficiency required dismissal, the Court first found the language describing the agreement that Lewis use the $20 to buy marijuana and cocaine lacking. Not that such an agreement could never raise to the level of a theft, the Court determined further details and description was necessary. Digging deeper, the Court further found that the accusatory instrument failed to established and sufficiently reflect that the undercover police officer was the owner or custodian of the property, the statutory elements of “deprive” and “appropriate,” the duration of the incident, and how long the defendant was gone with the money. Without these factual allegations the Court could not make a reasonable inference as to Lewis’ intent nor that he wrongfully took / withheld the PRBM from the police. Due to these factual shortcomings, the Court dismissed both PL 155.25 and PL 165.40.

It seems likely and reasonably that with a little more clarity and detail, assuming it existed and satisfied the elementary mandates, the prosecution could have prevailed. In fact, in a similar situation, they did just that after prosecutors filled in the numerous blanks that were left empty in Lewis. See. People v. Kinfe, 52 Misc 3d 1217(A), 43 N.Y.S.3d 768 (N.Y.Crim.Ct. 2016).

To learn more about the crimes codified in New York Penal Law Article 155 and 165, review the provided links.

Crotty Saland PC, a New York City criminal defense firm founded by two former Manhattan Assistant District Attorneys, represents those accused of these and other offenses in NYC, the Hudson Valley and throughout the state.

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