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.
In New York, in order to be charged and convicted of a theft-related crime, it generally must be alleged that the defendant stole the property from an “owner” of that property. In other words, you can’t steal property from someone who doesn’t own that property, and you can’t steal property that rightfully belongs to you. This makes all the sense in the world, and doesn’t seem like it could ever lead to any ambiguity. However, it often does, particularly in the context of family and other close personal relationships. This entry will address when the “ownership” threshold is satisfied for the NYPD, other police officers or any branch of law enforcement to make an arrest and the respective District Attorney have sufficient evidence to prosecute the crime of either Petit Larceny, New York Penal Law 155.25, or any degree of Grand Larceny.
Grand Larceny in the State of New York is a serious felony offense that carries with it the possibility of significant state prison time. There are multiple degrees of Grand Larceny, from First Degree to Fourth Degree, which can have vastly different consequences and sentencing ranges. One of the key factors distinguishing the various degrees of Grand Larceny is the value of the property that was allegedly stolen, from more than $1000 for Grand Larceny in the Fourth Degree, New York Penal Law 155.30, to more than $1,000,000 for Grand Larceny in the First Degree, New York Penal Law 155.42. On the surface, this may seem like a simple and sensible way to differentiate these charges. However, a significant degree of complexity can be added to the mix in the form of the principle of Aggregation.
Any conviction in New York for either Grand Larceny or felony Criminal Possession of Stolen Property carries the potential of serious imprisonment and incarceration. Even the “lowest” felony crimes – Fourth Degree Grand Larceny (New York Penal Law 155.30) and Fourth Degree Criminal Possession of Stolen Property (New York Penal Law 165.45) – have possible sentences of up to four years in prison. In other words, if you steal or knowingly possess stolen property worth a hair over $1,000 but no more than $3,000, jail is on the table in the eyes of the law.
Other than prison or jail, what are the financial ramifications, if any, involving restitution and fines and what is your exposure?
Grand Larceny in New York is a theft or stealing when the value of the property wrongfully taken into your possession is greater than $1,000.00. This type of theft is defined as a Fourth Degree Grand Larceny according to New York Penal Law 155.30. As repeatedly noted throughout countless blogs, when the value is more than $3,000.00 the crime is elevated to Third Degree Grand Larceny as codified in New York Penal Law 155.35 as long as the amount does not exceed $50,000.00. Tucking away this basic understanding of these offenses, an element that the prosecution must prove beyond a reasonable doubt is the “taking” element while also identifying who the custodian is of that property or rightful owner. This entry addresses the legal concept of “taking” in a Grand Larceny and unlawful transaction as well as better defining who, and is not, an owner.
You possess a $15,000.00 Rolex watch without the permission of the owner. You have an iPhone belonging to another person and he or she never gave you permission or authority to possess it. Certainly, if the owner never gave you the right to take, possess or have his or her property, whatever it may be and irrespective of its value, the fact that you possessed that property without a right to do so is proof of your guilt of Criminal Possession of Stolen Property pursuant to New York Penal Law Article 165? Although much depends on how prosecutors draft an accusatory instrument, without more than asserting you didn’t have permission, your criminal lawyer may successfully secure a dismissal of the complaint alleging Criminal Possession of Stolen Property.
In pertinent part, you are guilty of Criminal Possession of Stolen Property when you both knowingly possess the stolen property and when you do so with the purpose or objective to benefit yourself or a third party or, alternatively, to prevent the recovery of the property by the rightful owner. Just like Petit Larceny and Grand Larceny, if the amount or value of the property in question exceeds $1,000, $3,000, $50,000 or $1,000,000 the degree of the felony is enhanced in severity.