There are three degrees of Robbery in New York State all of which are felony crimes. Third Degree Robbery, New York Penal Law 160.05, Second Degree Robbery, New York Penal Law 160.10 and First Degree Robbery, New York Penal Law 160.15. Each of these crimes, ranging from Third to First Degree, have potential sentences of up to seven, fifteen and twenty five years respectively. Not only is an arrest quite severe, but a punishment and sentence for the latter two offenses, NY PL 160.10 and NY PL 160.15, also have mandatory minimums of 3.5 and 5 years from the lesser crime to the more serious. Without addressing the numerous differences between the crimes, you can discuss how a Second Degree Robbery differs from a First Degree Robbery with your own criminal defense lawyer, there are some important factors that distinguish these felonies. While briefly address the elements of these crimes, this blog entry will address a specific characteristic of any Robbery arrest in New York and one that is addressed in the Jury Instructions for NY Penal Law Article 160.
In New York, there are several criminal charges unique to the jurisdiction, whether it’s in Manhattan, Brooklyn, Queens, the Bronx, or upstate in Rockland or Westchester County. The first of these not-so-obvious criminal statutes is Unauthorized Use of a Vehicle, PL 165.05, 165.06 and 165.07. A person may be charged with Unauthorized Use of a Vehicle when they take a vehicle without the consent of the owner. This may sound like simple stealing, covered by other crimes such as Grand Larceny in the Fourth Degree, PL 155.30(8). However, Unauthorized Use of a Vehicle also covers situation where the person took possession of the vehicle lawfully, such as renting a car, but when that person then operates it outside the bounds of the rental agreement, such as keeping the car past the date it was due to be returned, or operating it outside of the are that the owner permitted it to be used. This could also apply in a situation where a person turns over their car to a mechanic for some repair work, and the mechanic takes the vehicle for joy-ride, or otherwise uses the car without the owner’s consent. Unauthorized Use of a Vehicle in the Third Degree is a class A misdemeanor, punishable by up to one year in jail, just like Petit Larceny, PL 155.25.
In New York, general theft-related crimes are referred to as “larcenies.” A crime of larceny essentially boils down to an allegation that a person, the defendant in a criminal case, stole property. There are many different ways in which a person steals property under the Criminal Procedure Law and Penal Law, specifically under Penal Law 155.05, which defines “larceny.” What level of crime may be charged, such as a B Felony, D Felony, or A Misdemeanor, and whether a person may be charged with Grand Larceny or Petit Larceny, depends on many factors including the method by which the person allegedly stole property, the nature of the property that was stolen, and the total value of that property. The difference between being charged with a felony and a misdemeanor is huge, and it is critical that a person charged with a larceny in New York understands the implications of that distinction. A criminal lawyer with expertise in this area can be invaluable.
Health care, and issues surrounding the same, is discussed almost daily on the radio, television and internet. Simply, health care is a daily part of our lives in both the political and literal sense. While we may know about “Obama Care,” attempts to repeal the Affordable Health Care Act, Medicare, Medicaid, and different health insurance options, New York criminal lawyers often hear about or deal with health care issues in a completely different context. What is that you ask? Because of the prevalent fraud that is perpetrated to and in the health care system, District Attorneys and the New York State Attorney General actively investigate and prosecute individuals and groups of people from pharmacists and physicians to patients and office staff, for violating a Health Care Fraud pursuant to New York Penal Law Article 177. Depending on the amount of the theft from a health plan over a one year period, exposure to incarceration is not merely a legitimate concern, but a potential reality whether a person is arrested for First Degree Heath Care Fraud, Fifth Degree Health Care Fraud or crime in between.
Petit Larceny is a misdemeanor not a felony, right? After all, New York wouldn’t call New York Penal Law 155.25 “Petty Larceny” if it was a felony crime. Even if you look at New York’s Larceny statutes in New York Penal Law Article 155.00, Petit Larceny, codified as NY PL 155.25, doesn’t have any degree where other theft offenses often have degrees. For that matter, it seems to make sense if Grand Larceny is a felony, then Petit Larceny is a misdemeanor.
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.
The New York Martin Act, New York General Business Law Section 352 and 352-C, is a state statute in New York that provides for civil and criminal penalties for securities fraud. The Martin Act is analogous to federal and other state securities fraud statutes, with certain key differences. One of those key differences is that the Martin Act does not require proof of an intent to defraud, or proof of intent to deceive or mislead, in order to charge and convict a person of a crime under the statute, punishable by up to one year in jail. However, if such intent is established, the charges under the Martin Act can be elevated to a felony punishable by state prison time.
This lack of an intent to defraud requirement becomes especially relevant where the Martin Act charges are based on non-disclosure. Generally speaking, it is much more difficult for a prosecutor to prove that a person had the intent to mislead an investor by not providing information that it is to prove that intent based on affirmatively providing false information. Doing away with any requirement that an intent to deceive be alleged or proven removes this hurdle from a prosecutor’s path to conviction. The following touches on this non-disclosure issue.
In New York, a court may impose restitution as a component of sentence, in addition to the more commonly understood penalties of jail time, community service, orders of protection, and so on. Section 60.27 of the New York State Penal Law permits a sentencing court to order restitution to the victim of the crime in addition to any other dispositions authorized by statute, meaning it can be tacked on to any other type of sentence. Restitution on criminal charges may not include sums for pain and suffering or liquidated damages, as in civil cases, and it may not be greater than what is necessary to compensate the victim of a crime for out-of-pocket losses. All of this can be a part of a disposition or plea involving Grand Larceny and Criminal Possession of Stolen Property crimes and, as such, it is something that you and your criminal defense lawyer should work through before resolving your case.
The criminal charge of Scheme to Defraud in New York often arises in the context of intricate and large-scale thefts. As such, there is typically a Grand Larceny or other theft-related offense accompanying the Scheme to Defraud charge on a felony complaint or indictment. While it is tempting to see this overlap and view a Scheme to Defraud charge as just another form of larceny, doing so can have disastrous consequences for any criminal defense. Scheme to Defraud is quite clearly a distinct charge, with its own unique nuances, related statutory rules, and methods of proof that you must fully address with you or criminal defense attorney. One such issue is the idea of “moral certainty” in the context of either an NY PL 190.65 or NY PL 190.60 arrest.
Financial crimes such as New York Scheme to Defraud and charges under the New York Martin Act are notoriously complex and difficult to understand and interpret. This complexity only becomes more significant when there are, as is typically the case with such criminal charges, hundreds of thousands of pieces of documentary evidence. In those circumstances, it is easy for prosecutors to make glaring oversights or unintentionally misrepresent the facts, and just as easy for criminal defense attorneys to let those negligent misdeeds go unnoticed. The question then becomes, “How does the Court deal with these prosecutorial errors when they become apparent.” This was exactly the question faced by by the New York County Supreme Court, Criminal Term in People v. Thompson, et al., 2016 NY Slip Op 50777(U) (N.Y. Co. Sup. 2016).
In Thompson, a white-collar criminal case involving a penny stock pump-and-dump scheme, the prosecutor presented numerous documents to the Grand Jury to obtain an indictment, including marketing emails to potential investors. Importantly, the prosecutor omitted highly relevant disclaimers that the defendants had included in those promotional emails, which were highly exculpatory with regard to the defendant’s intent. The Court found that the prosecutor should clearly have included the entire contents of those emails. While prosecutors are not generally obligated to to present all, or even any, evidence that is favorable to an accused person to the Grand Jury, the Court held that the prosecutor does have a duty of fairness to the accused which should prevent them from selectively omitting critical portions of a document that they are already presenting to the Grand Jury.
However, the Court in Thompson then gave the answer to the question above, which was that the indictment should still not be dismissed because, in this particular case, the Court did not believe that the prosecutor deliberately misled the Grand Jury, and those particular documents were just some of many that were presented, and not a critical part of the Grand Jury presentation.