Perhaps the most common type of crime committed by young people in New York and beyond is theft. Whether it’s a privileged teenager stealing a magazine for a thrill, or a child who has fallen into gang activity robbing a person on the street, theft-related offenses are all too common among adolescents. Until recently, criminal attorneys representing juveniles and children in New York State’s adult criminal justice system, even as 16 year olds, where these youths faced severe penalties including prison. Due to the recent Raise the Age legislation in New York, these “Adolescent Offenders” can now be diverted into Family Court, rather than the more severe and frightening adult system, where there are more services, programs and support available to hopefully intercept these teenagers before they go too far down the criminal rabbit-hole.
What is “stealing” you ask? A mere taking of someone’s property without their permission or authority? Yes, in part, but actually much, much more. While those unfamiliar with the criminal law may see theft, larceny and stolen property related crimes through their own respective lenses, the New York Penal Law defines these offenses – Petit Larceny, Grand Larceny and Criminal Possession of Stolen Property – with elements that every prosecutor must prove beyond a reasonable doubt and every criminal defense lawyer actively challenges to prevent the District Attorney from doing so.
Drafted by the legislature into Penal Law 155.05(1), to violate either misdemeanor Petit Larceny or any degree of felony Grand Larceny, you must have the intent to deprive another person of his or her property or appropriate the same for yourself or another party. Not only must you have this goal when taking the property, but you in fact must do so successfully and wrongfully.
In this day and age, with computerized banking and depositing checks on a cell phone, jurisdiction in the context of financial crimes becomes a more and more difficult question for judges, criminal lawyers and prosecutors alike. This is even more pronounced in the New York City metropolitan area with multiple states and jurisdictions in close proximity including Connecticut, New Jersey and Pennsylvania. This jurisdiction issue raises its proverbial head when conduct occurs outside of New York, but the impact of that criminal behavior or act is felt by a resident in this state. Not an atypical scenario, a recent decision by a Queens County Supreme Court Judge, Criminal Term, further clarifies when District Attorneys have the authority to prosecute fraud and theft related cases despite the alleged conduct occurring elsewhere.
As set forth in New York Penal Law 155.05(1), the hallmark of any arrest involving misdemeanor Petit Larceny or felony Grand Larceny is that no matter the taking or the nature of the property involved, an accused must also have the intent to deprive another person of that property or, alternatively, appropriate the same to him or herself. In non-legal terms, if an accused takes another person’s wallet from their hand, $100 in cash from their pocket, or diamond encrusted tiara from their head and instead of running off to squirrel it away or sell it, for example, he or she merely tosses it on the ground and walks away, prosecutors may not prove a larceny related arrest beyond a reasonable doubt. While clearly an issue of fact as to intent, before any judge or jury can render a verdict, the District Attorney, aka, the “People,” must establish the element of either “deprive” or “appropriate” as defined in Penal Law 155.00. As demonstrated in the below case, albeit an extreme and grotesque example of a moral failing, failure to do so can be fatal to any larceny offense.
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.
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.