Articles Posted in Grand Larceny of Credit Cards

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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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Crimes involving the theft and wrongful use of credit cards and debit cards are the types of offenses that seem to escalate each year. Certainly, the ease by which one can steal or use a stolen credit card is undeniable. While many times it is one’s intent to steal a credit or debit card, it is not atypical for an alleged thief to be arrested for stealing a wallet, purse or pocket book and he or she is not only charged with a misdemeanor, but a felony as well. The reason for this is because in the State of New York from New York City (NYC) to the suburbs of Westchester County and well beyond, it is a violation of New York Penal Law 155.30(4), Fourth Degree Grand Larceny, New York Penal Law 165.45(2), Fourth Degree Criminal Possession of Stolen Property, to merely steal or possess a stolen credit card. You need not know that when you took a person’s bag from a bar in Manhattan or hotel in Brooklyn that the bag contained a credit card. Punishable by up to four years in prison, any criminal lawyer or larceny defense attorney will certainly explain that the consequences are grave upon arrest or conviction of PL 155.30 or PL 165.45.

With the brief fundamentals behind us, in the eyes of the law, does it make a difference if you possess the actual credit card as opposed to merely using the numbers for the account? In other words, for a judge or jury to find you guilty of a credit card or debit card crime as set forth in Grand Larceny in the Fourth Degree or Criminal Possession of the Fourth Degree, must you actually possess or steal that card?

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It’s fairly irrelevant what you call it. Credit Card Fraud, Debit Card Fraud, Credit Card Theft, Debit Card Theft, Identity Theft…the fraudulent obtaining and use of credit card numbers and accounts is so drastic and commonplace, that barring the dollar amount hitting the tens of millions or more, this type of criminal activity is arguably becoming routine (are you listening Target?!). Most New York criminal lawyers would acknowledge that if you possess a stolen credit card or stolen debit card, you could very well face an arrest or indictment for Criminal Possession of Stolen Property in the Fourth Degree (New York Penal Law 165.45[2]). Further, any competent New York criminal defense attorney recognizes that the theft of a physical credit card is chargeable as Grand Larceny in the Fourth Degree (New York Penal Law 155.30[4]). The question that is an interesting one is what if the accused is smart enough not to possess the actual credit card or debit card? What if he or she merely possesses the account numbers? Simply, if you only possess credit card account numbers (or debit card), are you guilty of either Fourth Degree Grand Larceny (NY PL 155.30) or Fourth Degree Criminal Possession of Stolen Property (NY PL 165.45)?

As “luck” would have it, People v. Bodner, #2012-486, NYLJ 1202639616673, at *1 (Sup., RO, Decided January 15, 2014), addresses the exact issue discussed above. That is, if you merely possess a debit card number or credit card number (or steal the same), is your conduct the same in the eyes of the law whereby you can be arrested for Grand Larceny in the Fourth Degree or Criminal Possession of Stolen Property in the Fourth Degree as if you actually possessed the plastic itself?

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When one is arrested in New York for Grand Larceny of Criminal Possession of Stolen Property, the property in question is often ascertainable in a quick and easy manner. After all, if you steal a car, a painting or money, the property “speaks for itself.” Equally clear, the owner of the property is usually obvious because a defendant is accused of stealing that property from a particular person or business. Often time the bigger issue that New York theft lawyers and larceny defense attorneys contend with is not whether the item stolen constitutes legal property or who the owner is, but whether or not the value of that property constitutes a misdemeanor, lower felony or a felony where prison is mandatory.

Before addressing the “legal wrinkles” in this blog entry’s title, let’s briefly define property. According to New York Penal Law 155.00(1), property is defined as money, personal or real property, evidence of debt or contract or any thing of value. Defined under New York Penal Law 155.00(5), an owner is a person who has a right of possession superior to the person who takes the property. It is important to note, however, a joint owner does not have superior rights to his or her fellow common owners.

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While an arrest for Grand Larceny can lead to an indictment charging only one crime, in New York City it is far from atypical for that Grand Larceny arrest to be a part of a much larger scheme. In fact, as shown by the recent arrest and indictment of Robert Giuliano, Grand Larceny in the Third Degree may just be the tip of his alleged criminal iceberg.

According to Manhattan District Attorney Cyrus Vance, Jr., the Alpha Flight crew has caught up with the allegedly villainous Giuliano who is accused of defrauding at least two clients linked to a fraudulent concierge services website that he operated. It is believed by prosecutors that Giuliano’s high end luxury service promising VIP access to hot events from award shows and movie premieres to fashion shows and inaugural balls had a criminal element. Clients utilized Giuliano’s company, Giuliano Group Concierge, through its website at www.giulianogroup.tv. Using their credit cards online, clients were offered access to swank parties including the film premiere and after party for “American Pie: American Reunion” starring Jason Biggs, the TV premiere and after party for “Mad Men” starring Jon Hamm, January Jones and Christina Hendriks as well as a Russell Simmons privately hosted event for President Obama.

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As we’ve often mentioned, under the New York Penal Law (often called the New York Criminal Law or New York Criminal Code), the seriousness of a vast majority of larceny-related crimes is usually based not upon what type of property is stolen, but rather, the value of the stolen property in question. In limited circumstances, however, the type of property stolen can actually play a larger role in the charge a defendant will face than the property’s dollar value. Under New York Penal Law 165.45, it is a Class E felony to knowingly possess stolen property valued at more than $1,000, or stolen property that falls within a specific class of items. These items include: credit cards, debit cards, public benefit cards, firearms, motor-vehicles, religious items, and some pre-cursor chemicals used in the manufacture of methamphetamine (you do not often come across this last category very often). If a defendant is found to be in knowing possession of stolen property that falls within any of these categories, he or she can be charged with a felony, regardless of the stolen property’s dollar value.

While these items may seem plainly defined, your New York criminal defense attorney knows that in some instances, courts have allowed the scope of these terms to expand in unexpected directions. One specific instance of this can be seen in a decision rendered by the First Department Appellate Court in its interpretation of the term “debit card.” When most people think of what is meant by a “debit card,” their immediate thought is generally a card issued by a bank for withdrawing funds from one’s personal bank account. To others, “debit card, “credit card” and even “ATM card” are all interchangeable for practical every day purposes. Under New York law, however, courts have found that what can be considered a “debit card,” for the purposes of New York Penal Law 165.45(2), is not merely limited or constrained by our own definitions.

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Under New York’s larceny laws and theft crimes statutes, certain crimes and offenses are completed at the time they are committed. Take, for example, Grand Larceny, pursuant to Article 155 of the New York Penal Law. Under New York Penal Law 155.30, a person commits Grand Larceny in the Fourth Degree when he or she steals a piece of property, regardless of its type or nature, with a value in excess of $1,000. For the purpose of this particular statute, a person is considered to have stolen property when he or she takes, withholds, or obtains the property of another person with the intent of depriving that person of the property. So long as the person possesses the property in question with the intent to deprive another person of that property, the crime is considered complete at the moment that he or she takes the property. The property need not be in the accused’s possession for a minimum of one hour, one day or one week to have perpetrated the crime of NY PL 155.30 or any other degree of Grand Larceny. It is the physical taking that is the hallmark of any New York Penal Law Article 155 crime.

While the rule above holds true for the vast majority of offenses, the nature of other larceny-related crimes can be considered more ongoing or part of a greater course of conduct. Under New York Penal Law 165.45, a person commits Criminal Possession of Stolen Property in the Fourth Degree when he or she knowingly possesses stolen property with a value more than $1,000. While the crime occurs when the defendant first comes into knowing possession of the property, the offense continues for as long as the person is in possession of that property. In other words, you could be arrested or “get in trouble” with the law whether you are found to be in this possession of stolen property minutes or weeks after its theft. The nature of possession, unlike a taking, can go on for an extensive period and does not end until that possession no longer exists.

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It “is what it is.” Sadly, I have seen it not only when I served as a New York prosecutor in Robert Morgenthau’s Manhattan District Attorneys Office, but I have seen as a New York criminal lawyer as well. Maybe you stole a purse and didn’t realize there was a credit card inside of it. Instead, you grabbed a backpack that happened to have a debit card in one of the interior pockets. Even if you were merely trying to snag a bag that you knew had $50 or $60 dollars in it, you are now charged with a felony for violating Grand Larceny in the Fourth Degree according to New York Penal Law 155.30(4). The unfortunate thing is that you never had the desire to steal that credit card or debit card or even knew it was there.

As a seasoned New York criminal attorney I have watched in recent years as crimes involving credit cards and debit cards have grown throughout the metropolitan New York City area. There are several different charges that can stem from credit card theft or credit card fraud, such as Identity Theft in the First Degree under NY PL 190.80, Criminal Possession of Stolen Property in the Fourth Degree under NY PL 165.45, and Criminal Possession of a Forged Instrument in the Second Degree under NY PL 170.25. However, a very common credit or debit card crime that elevates an otherwise lesser crime into a felony offense is Grand Larceny in the Fourth Degree. Previously on our sister blog site (NewYorkCriminaLawyerBlog.Com), as well as our two websites (CrottySaland.Com and NewYorkTheftAndLarcenyLawyers.Com), I extensively examined how Grand Larceny charges are generally broken down by the value of the property alleged to be stolen. In substance, the higher the value of the stolen property the greater the degree of the crime. Following this through, the greater the degree of the crime the longer the possible prison term for a convicted defendant. I won’t regurgitate the full differences here, but it is important to note that if the value of the stolen property is less than $1,000 a criminal will face only Petit Larceny charges pursuant to NY P.L. 155.25, an “A” misdemeanor charge. That is, of course, if your theft does not involve a credit or debit card.

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As an experienced New York criminal defense attorney serving Manhattan, Brooklyn, Queens, the Bronx, and the surrounding counties such as Westchester, I am routinely confronted with legal question surrounding New York Grand Larceny crimes and other New York larceny laws and theft laws. In today’s blog post I want to address one of the more ‘weird’ legal situations that arises when a joint property owners “steals” commonly owned property from the other party he or she shares ownership.

To avoid confusion at the outset, let’s pause a moment and allow me to share a little Legal Property 101. Under the common law, there are different types of ownership rights one can have in property. Obviously the most basic is full ownership by a single person. However, more than one person may own one piece of property. When referring to land (real property) we usually call this a concurrent estate or co-tenancy. Now, there are different subsets of concurrent estates that vary in different jurisdictions, but their definition and consequences on ownership rights go beyond what we need to know here. For purposes of our discussion, when I refer to “joint” or “common” ownership of property I mean property over which each individual owner has an equal and undivided right of possession in that property. Each owner is entitled to have and use the property. It does not matter if that property is a car, bank account or computer.

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