When most New York criminal lawyers and every day people think of larceny and theft crimes, there are often a few ways stealing comes to mind. While a theft is a theft – any stealing of property $1,000 or less is a misdemeanor Petit Larceny pursuant to New York Penal Law 155.25 and possession of the items is a misdemeanor of Fifth Degree Criminal Possession of Stolen Property pursuant to New York Penal Law 165.40 – the items stolen can span tremendous distances apart. For example, a “run of the mill” shoplifting at Macys or Century 21 in Manhattan or charging iPhone left out unattended in a Brooklyn restaurant would qualify, can a a person be arrested for or convicted in New York for taking money in exchange for a sale that he or she knows in advance is fraudulent or bogus? What if, for example, a seller agrees to give you an LED television for $800, takes your cash and never returns? Alternatively, what if a seller tells you he is giving you a genuine Coach bag, he is paid, then sells you what is ultimately a knock off? Has a misdemeanor theft or larceny crime been perpetrated? Is this a larceny by trick? Hopefully this blog entry will shed some light on both this question and answer.
In People v. Kinfe, 2016 NY Slip Op 51208(U) (NY County Crim. Ct.), an undercover police officer gave the defendant $20 to purchase cocaine. After leaving the money on a table (it is pre-recorded so the police can identify it later), the accused gave the officer what the officer believed to be cocaine. Further, the defendant stated that he would sell the undercover officer “two rocks for $20.” After giving the officer the alleged drugs and the officer placing the money on the table, the officer tested the substance and confirmed it was not cocaine. Although the defendant avoided a much more serious offense, the sale of cocaine is the Class B felony of New York Penal Law 220.39, he was charged with Petit Larceny for the “theft” of the $20.
Despite the defendant’s contention that he never actually took possession of the $20, the court noted that possession can be constructive and need not be actual. In other words, the dollars need not be in one’s hand if he or she can exert control over the item in question. More specifically, the Court noted that “‘[t]Taking’ includes exercising dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner’s continued rights (People v. Jennings, 69 NY2d 103, 118 ). A person is guilty of attempted petit larceny when with intent to commit the crime of petit larceny, ‘he engages in conduct which tends to effect the commission of such crime'”. Taking the logical next step, the Court found that the irrespective of whether or not the defendant ultimately retrieved the money before he was arrested, he knew in advance of his ruse to sell fake cocaine. As such, there was a reasonable inference that he intended to steal the officer’s money.
While this example may be extreme, knowingly selling a bogus product and taking money or some other property in return is at a minimum an offense that can be substantiated for legal sufficiency purposes in a criminal complaint. Might an accused still have defenses to push back on a prosecutor’s burden of proof beyond a reasonable doubt? Absolutely. After all, the District Attorney must establish your intent and, in this case, knowledge of the fake property in question. The bottom line is even without physical possession, knowingly defrauding someone for money can lead to a misdemeanor or felony conviction depending on how much you wrongfully obtained.
To read more about crimes in New York involving theft, larceny and criminal possession of stolen property as either a misdemeanor or felony, review this blog or the website and blog listed below.
Established by two former Manhattan prosecutors, Saland Law PC is a New York criminal defense firm representing clients in the New York City area.