New York City, more than anywhere in the nation, is the venue for criminal prosecutions of financial professionals such as investment bankers, Wall Street traders, and compliance professionals. These kinds of cases might as well be considered a completely separate area of law from the more typical criminal practice involving the defense of charges such as Assault, Burglary, Criminal Possession of a Weapon, and the like. For one, understanding the financial markets and how they are regulated is often critical, as well as understanding the kinds of collateral consequences that such a person faces, as with FINRA, that may not be present in the context of the “average” arrest and criminal defendant. Whether you hold a series 3, series 6, series 7 or another certification, you, and more importantly your criminal attorney, must be aware of the legal and professional consequences before, not after, your case comes to a close.
Can I have my felony conviction sealed in New York? Will New York expunge a felony regardless of the arrest charge? Do criminal records – misdemeanor or felony – remain open to the public forever? What if I am convicted of a non-violent theft crime? Is there a way to screen or hide this record or conviction? More specifically, what if I stole or embezzled $7,500.00, $75,000.00 or even $750,000.00 from an employer? Now that you have asked the questions, the answer to these inquiries are all found in New York Criminal Procedure Law 160.59.
NY CPL 160.59, New York’s sealing statute, does not provide for expunging or expungement of criminal convictions, but allows people with certain eligible criminal convictions to have those cases sealed on and from their records. Subject to many relevant factors and mandatory requirements that can be vetted with your New York expungment or sealing attorney, Grand Larceny, New York Penal Law sections 155.30, 155.35, 155.40 and 155.42, is a statutorily eligible offense.
Sometimes the threat of an arrest or prosecution is enough to send an innocent person into a deep depression or panic. After all, if an Assistant District Attorney or detective with the NYPD is asking you questions (never forget your right to counsel and similar right to refuse to answer questions), the hint of wrongdoing is as embarrassing as it is crippling. In the context of a White Collar crime such as a larceny, theft, tax fraud or embezzlement related offense, whether it is your neighbor, employer, accountant or friends, when these people are subpoenaed or merely questioned by law enforcement, the brand of the Scarlet Letter is coming in hot. With or without an arrest, the old adage of “where there’s smoke there’s fire” holds true even if you are free from any wrongdoing. Simply, it is never too early for you and your criminal lawyer to get in front of these types of allegations.
As New York criminal defense attorneys familiar and experienced in every stage of a criminal case from the investigatory inception through trial before a judge or jury, one thing that Crotty Saland PC does with regularity is consult with clients to best get them out in front of any allegation of wrongdoing. A recent White Collar case handled by one of our criminal lawyers demonstrates how this strategy can, in the right circumstance, provide closure to a subject or target while freeing them from even the appearance of impropriety.
Before ultimately declining to prosecute our client, prosecutors in the New York County (Manhattan) District Attorney’s Office investigated an alleged fraud that had the appearance of a Grand Larceny Embezzlement and Second Degree Grand Larceny. Because the nature of the accused theft by our client exceeded $50,000, but was less than $1,000,000, our client not only had exposure to a felony, but a sentence of as much as five to fifteen years in prison. In fact, like any type or form of Grand Larceny in New York, the value dictates the charge. In the event there was an arrest, indictment and conviction, New York Penal Law 155.40 would have left our client vulnerable to not only incarceration, but jeopardized our client’s professional licenses and certifications. Generally speaking, even without going to prison, an accountant, lawyer, physician or any similarly situated professional monitored by FINRA or FDIC regulations, answerable to a legal Bar Association, or any other accrediting body would compromise their livelihood with such an arrest.
Embezzlement cases in New York are often some of the most difficult crimes to defend for Grand Larceny lawyers and Embezzlement defense attorneys. Yes, every case is different, but Grand Larceny by Embezzlement often involves a “smoking gun” of a paper trail. In these cases, money is transferred out of an employer’s account and into the account of an accused. As a New York City and greater New York criminal defense attorney, it no longer surprises me to see people make these boneheaded and easily traceable transactions. Even worse, from a criminal defense perspective, as much as an accused may want to apologize for the infraction, admitting the indiscretion to the police, a detective or employer makes any criminal case that much stronger. From a personal and “human” side, we can all understand that people make mistakes and making a victim whole is what we should endeavor to do, but when you are accused of a crime you should always think things through before making any statement to any party.
In many of our discussions, we’ve highlighted that while New York’s larceny and theft laws can seem straightforward enough on paper, their interpretations are sometimes extremely ambiguous. As a result, we’ve recommended consulting your New York criminal lawyer in any circumstance where you have been charged with a larceny-related offense whether it be Petit Larceny, Grand Larceny, Criminal Possession of Stolen Property or a similar crime. Today, we’ll be discussing one of a number of defenses that, in the event you are charged with a crime involving larceny, your attorney may be able to assert on your behalf.
There are many methods of proving a defendant’s innocence (actually, it is the People’s burden to prove your guilt). In some circumstances, it is most effective to highlight inconsistencies in the prosecution’s case. In others, evidence can be presented that contradicts the state’s theory of a crime. A third and somewhat less utilized method of proving a defendant’s innocence is to assert a statutory defense. Unlike the first two methods, a statutory defense admits that while a defendant may have performed the crime that prosecutors allege, such as Petit Larceny or Grand Larceny, there is a justification that excuses him or her from guilt for doing so.
It may not be the first of the ten commandments, but according to the Book of Vance, Jr., violating “thou shalt not (allegedly) steal” is understandably and correctly a grave and serious crime against the public. In the minds of some in the law enforcement community, any theft, regardless of how large or insignificant it may be, is a greater sin than disregarding the axiom “thou shalt not answer ‘ready for trial’ in an illusory manner.” But let us not digress…
According to the Manhattan District Attorney’s Office, Cyrus Vance’s keepers of the grail have once again notched a victory against Team Hades. This time the arrestee in Manhattan Criminal Court was an accounts payable clerk who is alleged to have perpetrated a $1 million Embezzlement from the Archdiocese of New York. 67 year old Anita Collins is not only accused of Grand Larceny in the First Degree, a violation of New York Penal Law 155.42, but it is not her first brush with the law. In fact, the Church apparently failed to do its due diligence on the accused and was unaware she completed five years probation after her felony Grand Larceny conviction in 1999.
Ask any New York criminal defense attorney who regularly practices in the criminal court of our state. Not all thefts are created equal. The New York Penal Law breaks down Larceny into distinct degrees, ranging from Petit Larceny to Grand Larceny (NY P.L. 155.25, 155.30, 155.35, 155.40, 155.42). Prosecutors in New York City, the neighboring boroughs, and in the surrounding counties of Westchester and Rockland, will designate the proper Larceny charge based on an estimate of the value of the property that has allegedly been stolen. Many times part of being an effective White-Collar Criminal defense lawyer is getting the charges against your client reduced (so that your client can face potentially less, little, or no prison time) especially if the evidence is too stacked against your client for an acquittal. Conversely, just as criminal defense lawyers attempt to reduce charges, prosecutors will try to increase the degree of an offense. One such tool prosecutors utilize to aid in this effort is aggregation. Instead of charging an accused defendant thief with multiple lesser larceny charges, they may be able to add up the value of the total property stolen from several different thefts. So if a person commits six separate thefts of $501 each, instead of charging the thief with six separate counts of Petit Larceny (a misdemeanor) the prosecution may be able to charge the thief with Grand Larceny in the Third Degree (a class D felony). What was once punishable by at most up to a year in jail is now punishable by up to two and one-third to seven years in state prison. Obviously, the difference is enormous.
Aggregation is not applicable in all instances involving multiple thefts. Generally, aggregation is permissible where separate acts of theft are from the same owner if the successive thefts are pursuant to a single sustained criminal scheme. An examination of the pertinent New York case law helps “flesh out” aggregation. The seminal New York case on aggregation, People v. Cox, 286 N.Y. 137, established the aggregation principle (the case dates back to 1941 so the monetary values are different, but the legal principles holds true). The case centered on a defendant who was a turnstile maintainer in the subway system. Over a two-year period he stole batches of nickels, about $25 at a time, from the subway system. However, in aggregate the nickels totaled about $2,000 dollars. Cox argued that because his theft occurred over a period of time and at no one time exceeded the sum of $100 he was guilty of numerous Petit Larceny crimes rather than one Grand Larceny (the ceiling for petit larceny then was $100). The court ruled that the evidence showed that the “entire taking was governed by a single intent and a general illegal design.” The length of period over which the thefts occurred was irrelevant. Thus, Cox was convicted as a felon (Grand Larceny) not the misdemeanor.