Depending how aggressive or creative a District Attorney gets, sometimes what is one simple act becomes multiple criminal charges from the onset of an arrest or at some point during the prosecution. While the law allows an Assistant District Attorney in New York to supersede an information (criminal complaint) or present criminal charges to a Grand Jury that were not initially on a felony complaint, when such actions are taken a criminal defense lawyer must be on his or her respective “game.” Why? Some charges may be obvious on their faces but others not so much. Complicating matters, what may seem like a simply case with limited exposure can ultimately involve a crime with potentially significant consequences. People v. Gavrilov, 2015 Slip Op. 51562 (App. Term 2nd Dept. 2015) is such a case where the conduct and the charged crimes did not exactly coalesce. There, the defendant entered a vehicle and stole some property. Charged with Petit Larceny, New York Penal Law 155.25, and Fifth Degree Criminal Possession of Stolen Property, New York Penal Law 165.40, the defendant also found himself facing Third Degree Unauthorized Use of a Vehicle, New York Penal Law 165.05. Although not a more serious offense, a very interesting question was raised. Did prosecutors overreach by charging the defendant with PL 165.05 or does wrongfully entering and stealing from a vehicle also violate the Unauthorized Use of a Motor Vehicle statute?
Most people rightfully think a larceny or theft occurs when they wrongfully and without permission steal or take someone’s property. Usually, but not always, that person refuses to return the property or simply doesn’t tell the victim that he or she took it in the first place. Simply, the rightful owner lost his or her television, mobile phone, car, or good old fashion cash forever. However, in New York, a theft or larceny need not be a permanent taking. In fact, it need not be a taking at all in the common way we think about such acts. According to the New York Penal Law and the plethora of cases that analyze and interpret it (please note the shout out to the “Three Amigos”), a police officer can arrest, District Attorney prosecute and judge or jury convict you of a crime if you fail to return property. How you ask? New York Penal Law 155.05(2)(b) specifically addresses how one can be charged with a Petit Larceny or Grand Larceny Crime in New York when one acquires lost property.
No, there is not a crime of cell phone theft, iPhone stealing or smart phone heist in the New York Penal Law. However, merely because there is no specific statute addressing cell phones, mobile phones, smart phones and other personal devices such as iPads does not mean there is no crime or crimes that occur when one is stolen. On a base level, whenever you steal anything – from a pen or shoelace to a million dollars in cash or a diamond engagement ring – a larceny has occurred. Irrespective of value, the theft is a Petit Larceny and the possession of the property is Criminal Possession of Stolen Property in the Fifth Degree as set forth in New York Penal Law 155.25 and New York Penal Law 165.40 respectively. These offenses are both class “A” misdemeanors.
Putting behind the misdemeanor crimes the NYPD will arrest you for and a District Attorney will prosecute, the following entry will briefly examine some crimes for cell phone theft routinely seen by New York criminal lawyers and defense attorneys throughout New York City District Attorney’s Offices in Manhattan, Queens, Brooklyn and the Bronx as well as other prosecutors’ offices elsewhere in suburban counties such as Westchester, Rockland, Putnam and Dutchess.
Most value based theft crimes share the same elements as one another outside of the necessity that the property in question reach a certain amount to raise the level of the offense. For example, Petit Larceny involves property valued at $1,000 or less while First Degree Grand Larceny requires that the property stolen be worth more than $1,000,000. Putting aside Grand Larceny crimes in New York that are item or object specific, stealing a credit card for example is automatically a felony of Fourth Degree Grand Larceny, the underlying elements are generally the same. You can look to NY PL 155.25, NY PL 155.30, NY PL 155.35 or an of the larceny crimes of the New York Penal Law and the common elemental bond is that you are guilty of larceny when you steal property. Taking this analysis one step further, Penal Law 155.05(1) mandates that “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.”
With these definitions in hand, the question presented by this particular blog is whether or not merely depriving someone of their property is sufficient to constitute a crime of larceny – Petit or Grand. Further, must the taking be permanent, for a long frame time or some other lesser period?
While most people think of larceny and criminal possession of stolen property in two or three general ways – shoplifting, embezzlement or some scheme to steal money – perception is not reality. As a New York criminal defense attorney and former Manhattan Assistant District Attorney I have personally defended or prosecuted a wide variety of thefts that range from complicated schemes involving multiple people and millions of dollars to incidents as “simple” as a person stealing a laptop from bar or restaurant. In most cases, the dollar amount of the property regardless of its nature or type is the controlling factor as to the severity of the crime. For example, when the value of the property is more than $1,000 then the offense is a Fourth Degree Grand Larceny or Fourth Degree Criminal Possession of Stolen Property pursuant to New York Penal Law 155.30 and 165.45 respectively. Class “E” felonies, these crimes would not be applicable if the dollar amounts were less or more. In those cases the applicable crime to charge could be Petit Larceny or Fifth Degree Criminal Possession of Stolen Property on the lower end and higher degree felony for values exceeding $3,000, $50,000 or $1 million. Similarly, when a theft or larceny involves a specific type of property, such as a credit card, secret scientific material, a firearm or certain vehicles, then the offense is automatically a felony even if the financial threshold has not been met.
Continuing with the vehicle theme, while the following case is not one of those that is based on vehicle type and value as specified in PL 155.30(8) and PL 165.45(5), it is a bit off from the normal context of these types of crimes. Why is it worth blogging about? Because the case represents that whether or not you subjectively believe something has value or your conduct is not an extortion, embezzlement or shoplift, a judge or jury can still convict you for a felony crime. You’ve been warned.
On of the more common misunderstandings of New York shoplifting law (there is not actual statute such as this, but it is a clear means to describe similar offenses), is that an accused must leave a store to be arrested and ultimately convicted for Petit Larceny, Grand Larceny or Criminal Possession of Stolen Property. Irrespective of whether an offenses is a misdemeanor PL 155.25 or a felony PL 155.30, the evidence of the wrongful taking must be legally sufficient on a complaint and beyond a reasonable doubt at trial. While New York law is very clear that possession inconsistent with the rights of the property owner is a telling factor when determining if a shoplifting larceny occurred, the analysis is very fact specific and one which you and your criminal attorney or shoplifting lawyer must examine. That said, however, can a defendant successfully challenge an arrest in New York for Petit Larceny or Fifth Degree Criminal Possession of Stolen Property if a complaint fails to set forth facts that the accused walked past registers, checkout lines, etc., as part of his or her theft from a store? Will the failure by the prosecution to provide this information be fatal to the District Attorney’s case?
When most New York criminal lawyers and every day people think of larceny and theft crimes, there are often a few ways stealing comes to mind. While a theft is a theft – any stealing of property $1,000 or less is a misdemeanor Petit Larceny pursuant to New York Penal Law 155.25 and possession of the items is a misdemeanor of Fifth Degree Criminal Possession of Stolen Property pursuant to New York Penal Law 165.40 – the items stolen can span tremendous distances apart. For example, a “run of the mill” shoplifting at Macys or Century 21 in Manhattan or charging iPhone left out unattended in a Brooklyn restaurant would qualify, can a a person be arrested for or convicted in New York for taking money in exchange for a sale that he or she knows in advance is fraudulent or bogus? What if, for example, a seller agrees to give you an LED television for $800, takes your cash and never returns? Alternatively, what if a seller tells you he is giving you a genuine Coach bag, he is paid, then sells you what is ultimately a knock off? Has a misdemeanor theft or larceny crime been perpetrated? Is this a larceny by trick? Hopefully this blog entry will shed some light on both this question and answer.
Many complaints and accusatory instruments alleging violations of New York Penal Law 155.25 and New York Penal Law 165.40 are “bare bones” and boilerplate. That is, the language is somewhat “plug and play” and generic whereby the item stolen and the value of the property may be changed without substantively altering the paperwork filed in court at your arraignment. Some arrests for Petit Larceny and Fifth Degree Criminal Possession of Stolen Property are processed through a Desk Appearance Ticket (remember, at DAT only shows one charge, but when you appear in court there will likely be more) while others leave you waiting in central booking to see a judge. It is of little relevance where you end up or how you are prosecuted other than one means is more accommodating than the other. Why is it of no consequences? Because irrespective of whether you are charged with shoplifting, theft from an employer, stealing from someone’s home or any other larceny conduct no greater than $1,000, the crime or crimes of PL 155.25 and PL 165.40 remain the same. Moreover, from a legal position, the District Attorney’s Office still has the burden of providing an accused with sufficient notice of the crime or crimes he or she faces and a legally sufficient accusatory instrument so you can prepare a defense to your arrest.
A recent decision by an appellate court addressed the crime of Petit Larceny where a defendant pleaded guilty to PL 155.25 and later challenged the legal sufficiency of the charges. Regardless of the means by which you are arrested for or accused of PL 155.25 and whether it occurred in Manhattan, Brooklyn, Queens or anywhere in New York City or beyond, is not important. The following case is valuable one because it demonstrates the fairly low threshold the prosecution must achieve to move a case forward from arrest to potential trial. When reading this blog and brief entry, keep in mind that legal sufficiency is not the same as and significantly less than the standard required at trial to find guilt beyond a reasonable doubt.
Maybe it was Sephora in Manhattan or Century 21 elsewhere in New York City. It actually makes no difference if its Macy’s, Bloomingdale’s, Whole Foods or some mom and pop store in Queens, Brooklyn, Bronx, White Plains, Yonkers or any other municipality in New York. The standard, some would argue, is ridiculously low. Heck, you may have put the makeup, sweater or food in your own bag because it was convenient or the store didn’t supply a cart (if being environmentally friend and not using plastics is a crime, then guilty as charged!). On its face it seems like a reasonable thing to do. The reaction of store security, however, was quite the opposite. Reasonable? Not at all. Aggressive, accusatory, intimidating? Absolutely. Being embarrassed and signing paperwork, however, may be the least of your worries. If it is alleged that you stole property – regardless of what it may be worth (if anything!) – expect that you will at a minimum be arrested and issued a Desk Appearance Ticket (DAT in NYC) for either Petit Larceny (PL 155.25) or Fifth Degree Criminal Possession of Stolen Property (PL 165.40). To make matters worse, while the DAT for shoplifting may only reflect one of these charges, upon appearing in court you will have the “honor” of facing both misdemeanor crimes.
With a little lay of the land and a scenario that may very well fit into what you were alleged to have done, the question you likely are asking is, “Why was I arrested and why was I charged with a crime for shoplifting if I didn’t step foot out of the supermarket (fill in the store here)?!” Well, read on for your answer…
The difference between a felony and a misdemeanor is drastic. Whether the crime or crimes you are arrested for in New York involve those of the white collar or street variety, any criminal conviction is permanent. With a felony conviction, however, there is greater exposure to collateral consequences. When an offense involves a theft or fraud crime, such as Grand Larceny, Petit Larceny and Criminal Possession of Stolen Property, those secondary issues may actually be first and foremost on your list of concerns after incarceration. For example, are you licensed through FINRA? Do you work at an FDIC insured bank? Are you a legal resident, applying for a visa or interested in becoming a United States citizen? If so, will the felony trigger a review of immigration because it is deemed a Crime Involving Moral Turpitude or and Aggravated Felony?
Staying with larceny and theft crimes that occur in New York City or elsewhere in the State of New York, one of many things you should discuss with your own criminal defense attorney or defense lawyer is whether or not the charge you face can be knocked down or decreased to a less serious crime. Even better, can it be lessened to a non-criminal offense or be dismissed all together? Where you are arrested for and charged with a crime involving theft or larceny in New York, one means to investigate or defensive channel to pursue to limit your criminal exposure and collateral consequences is to attack the manner or method by which the District Attorney establishes value of the stolen property. If the prosecution lacks the proper evidence or your criminal defense lawyer can poke holes in the valuation to decrease it below certain thresholds, then your case can potentially be reduced from a greater felony to a lesser one and possibly out of a felony all together. Certainly, this defense is worthy of exploration in applicable cases and the following blog addresses an example right on point.