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Articles Posted in Criminal Possession of Stolen Property

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No, there is not a crime of cell phone theft, iPhone stealing or smart phone heist in the New York Penal Law. However, merely because there is no specific statute addressing cell phones, mobile phones, smart phones and other personal devices such as iPads does not mean there is no crime or crimes that occur when one is stolen. On a base level, whenever you steal anything – from a pen or shoelace to a million dollars in cash or a diamond engagement ring – a larceny has occurred. Irrespective of value, the theft is a Petit Larceny and the possession of the property is Criminal Possession of Stolen Property in the Fifth Degree as set forth in New York Penal Law 155.25 and New York Penal Law 165.40 respectively. These offenses are both class “A” misdemeanors.

Putting behind the misdemeanor crimes the NYPD will arrest you for and a District Attorney will prosecute, the following entry will briefly examine some crimes for cell phone theft routinely seen by New York criminal lawyers and defense attorneys throughout New York City District Attorney’s Offices in Manhattan, Queens, Brooklyn and the Bronx as well as other prosecutors’ offices elsewhere in suburban counties such as Westchester, Rockland, Putnam and Dutchess.

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While most people think of larceny and criminal possession of stolen property in two or three general ways – shoplifting, embezzlement or some scheme to steal money – perception is not reality. As a New York criminal defense attorney and former Manhattan Assistant District Attorney I have personally defended or prosecuted a wide variety of thefts that range from complicated schemes involving multiple people and millions of dollars to incidents as “simple” as a person stealing a laptop from bar or restaurant. In most cases, the dollar amount of the property regardless of its nature or type is the controlling factor as to the severity of the crime. For example, when the value of the property is more than $1,000 then the offense is a Fourth Degree Grand Larceny or Fourth Degree Criminal Possession of Stolen Property pursuant to New York Penal Law 155.30 and 165.45 respectively. Class “E” felonies, these crimes would not be applicable if the dollar amounts were less or more. In those cases the applicable crime to charge could be Petit Larceny or Fifth Degree Criminal Possession of Stolen Property on the lower end and higher degree felony for values exceeding $3,000, $50,000 or $1 million. Similarly, when a theft or larceny involves a specific type of property, such as a credit card, secret scientific material, a firearm or certain vehicles, then the offense is automatically a felony even if the financial threshold has not been met.

Continuing with the vehicle theme, while the following case is not one of those that is based on vehicle type and value as specified in PL 155.30(8) and PL 165.45(5), it is a bit off from the normal context of these types of crimes. Why is it worth blogging about? Because the case represents that whether or not you subjectively believe something has value or your conduct is not an extortion, embezzlement or shoplift, a judge or jury can still convict you for a felony crime. You’ve been warned.

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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.

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In New York, like any other state, evidence can be either direct or circumstantial. While it would be easy for a District Attorney’s Office and local police department to observe a theft and larceny related crime first hand, crime, or alleged crime, simply doesn’t work that way. Whether the arrest offense is the taking, a larceny, or the criminal possession, certain actions and statements without direct proof can provide the police with probable cause and the prosecution with proof beyond a reasonable doubt. Although this means of prosecuting crimes in New York is relevant to any offense, the following case reflects how it can directly impact an arrest for Criminal Possession of Stolen Property pursuant to New York Penal Law Article 165.

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There are very strict and unforgiving laws in New York State. The New York Penal law, when addressing financial crimes, has dollar amount thresholds that upon their breach the crime is enhanced. What this means is that if you steal by any means property valued in excess of $1,000 is an “E” felony of Fourth Degree Grand Larceny (New York Penal Law 155.30). If that amount exceeds $3,000 then it is a “D” felony of Third Degree Grand Larceny (New York Penal Law 155.35). The next thresholds are at $50,000 and $1 million. There are corresponding offenses for  Criminal Possession of Stolen Property (again, it is value based for the most part barring some exceptions so the nature of the property is irrelevant). Not only is there a concern for an accused that he or she can face incarceration in prison – up to four years on an “E” felony and seven years on a “D” felony – there are other concerns for professionals and foreign nationals. Even without stepping foot in a jail, a conviction can end a career or make a person inadmissible in the future. Potentially, for the latter group of individuals, the offense could be an Aggravated Felony. Due to all of these collateral and direct concerns with felony arrests, it is imperative to formulate a plan when accused of these or any crime and your exposure is great. Unfortunately, a scenario played out for a Crotty Saland PC client who was both a physician and a foreign national.

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In New York, Criminal Possession of Stolen Property fits into five separate categories or degrees when value is considered. These are Fifth Degree Criminal Possession of Stolen Property (New York Penal Law 165.40), Fourth Degree Criminal Possession of Stolen Property (New York Penal Law 165.45), Third Degree Criminal Possession of Stolen Property (New York Penal Law 165.50), Second Degree Criminal Possession of Stolen Property (New York Penal Law 165.52) and First Degree Criminal Possession of Stolen Property (New York Penal Law 165.54). The threshold for determining the value or dollar amount for these crimes are $1,000 or less, greater than $1,000, greater than $3,000, greater than $50,000 and in excess of $1 million respectively. Further, other than Fifth Degree Criminal Possession of Stolen Property, each of these crimes are felony offenses. Putting aside valuation (another issues not addressed here is the means by which courts determine or assess value), the basic language of a Criminal Possession of Stolen Property arrest, misdemeanor complaint or felony indictment, is that the accused knowingly possessed stolen property. Further you must also have the intent to benefit yourself or impede the owner from recovering his or her property whether it is money from a bank account, an antique watch or an iPad.

The question posed here is whether you can be arrested, charged with and ultimately found guilty by a judge or jury for any degree of Criminal Possession of Stolen Property even if you did not actually steal the property, were not present when the property was stolen, had no involvement in the actually taking and were not arrested for and charged with Petit Larceny (New York Penal Law 155.25) or any degree of Grand Larceny? The simple and short answer is “yes.”

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Fraud arrests are embarrassing. Theft arrests are compromising. Larceny arrests are stigmatizing. Felony arrests in New York? Those can land you in prison. Misdemeanors? By Desk Appearance Ticket or full processing in Central Booking, there is potential for incarceration too. Whether it is a shoplifting arrest or DAT for violating the Petit Larceny statute of New York Penal Law 155.25 or Fifth Degree Criminal Possession of Stolen Property Statute of New York Penal Law 165.40, a fake identification arrest for violating  the Third Degree Criminal Possession of a Forged Instrument statute of New York Penal Law 170.20, a failure to pay a cab fare arrest for violating New York Penal Law 165.15,  or any other crime involving Forgery, Falsifying Business Records, Theft of Services, Scheme to Defraud or Grand Larceny, if you are regulated through FINRA or FDIC, the ramifications can be a “game changer” to your career and livelihood. While you can potentially avoid reporting certain misdemeanor crimes on your Form U4, if you are charged with any felony (even if it is later reduced or resolved in a non-criminal manner) or convicted of the same, you will have to answer for your alleged actions. Even if the offense you are accused if is merely a misdemeanor (“merely” is a relative term as New York does not expunge criminal convictions for these crimes) and the offense involves fraud, forgery, wrongful taking of property or even false statements or omissions, you will be required to report the alleged infraction. This blog entry will not address the substance and definitions of the above crimes (that can be found throughout this blog and the CrottySaland.Com website), but reporting of these arrests and convictions on your U4 and consequences associated with FINRA regulations and those involving FDIC insured banks.

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If there is such a “good” in crimes and prosecutions, arrests and accusations for shoplifting often result in the issuance of a Desk Appearance Ticket (DAT) in lieu of a person being processed through Central Booking. The “bad,” however, is that shoplifting arrests for the crimes of Petit Larceny, New York Penal Law 155.25, and Criminal Possession of Stolen Property in the Fifth Degree, New York Penal Law 165.40, are so routine that prosecutors, judges and even many inexperienced criminal defense attorneys do not blink an eye when examining an accusatory information to determine its viability and sufficiency. That is not to say these people are lazy by any means, but fatigue of seeing the same boilerplate language leads to poor results. Fortunately for one defendant, the examination of the complaint against her led to a judge dismissing the charges of Petit Larceny after the court determined there was no nexus between her actions and that of an unapprehended other individual who attempted to leave the store with stolen property. This blog entry will address the court’s decision and look at the overall value and importance of the ruling in the realm of arrests for PL 155.25 and PL 165.40.

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Petit Larceny, New York Penal Law 155.25, is one of the most common theft crimes charged in New York, prosecuted by Assistant District Attorneys, and defended by New York criminal lawyers. Like its sister offense of Criminal Possession of Stolen Property in the Fifth Degree, New York Penal Law 165.40, this misdemeanor “shoplifting” crime is one that prosecutors can very easily draft in an accusatory instrument (called a criminal court complaint or information). In fact, in New York City’s boroughs of Manhattan, Brooklyn and Queens, there is fairly boilerplate language that is found in most complaints. Of grave concern to criminal defense attorneys, however, is whether or not the boilerplate language that is plugged into these complaints is legally sufficient and not conlusory (are there enough factual allegations and not mere conclusory statements). Whether an accused finds himself or herself before a judge during an arraignment by way of Desk Appearance Ticket (commonly called a DAT or Appearance Ticket) or after spending 24 hours in the infamous Tombs should the information be legally insufficient an attorney can file a motion for dismissal.

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No matter how long your criminal defense lawyer or criminal defense attorney has practiced in the courts of New York, every criminal trial he or she faces is unique and can have complex legal issues. During a criminal trial a defendant may be charged with multiple crimes and the jury may find the defendants guilty of, all, none or an assortment of crimes charges but not all of them. After the verdict is issued, a criminal defense attorney can argue that the verdict should be overturned for various reasons. Two potential ways your criminal lawyer can challenge a verdict is if the verdict is legally repugnant or legally insufficient.

A jury verdict is legally repugnant if the verdict is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury. The repugnancy claim can be a useful legal tool when the jury verdict is inconsistent with the elements of the crime and should be used to overturn inherently inconsistent verdicts. People v. Forde illuminates some of the issues that can arise when a legal repugnancy or a legal sufficiency claim is made.

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