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.
In New York, Criminal Possession of Stolen Property fits into five separate categories or degrees when value is considered. These are Fifth Degree Criminal Possession of Stolen Property (New York Penal Law 165.40), Fourth Degree Criminal Possession of Stolen Property (New York Penal Law 165.45), Third Degree Criminal Possession of Stolen Property (New York Penal Law 165.50), Second Degree Criminal Possession of Stolen Property (New York Penal Law 165.52) and First Degree Criminal Possession of Stolen Property (New York Penal Law 165.54). The threshold for determining the value or dollar amount for these crimes are $1,000 or less, greater than $1,000, greater than $3,000, greater than $50,000 and in excess of $1 million respectively. Further, other than Fifth Degree Criminal Possession of Stolen Property, each of these crimes are felony offenses. Putting aside valuation (another issues not addressed here is the means by which courts determine or assess value), the basic language of a Criminal Possession of Stolen Property arrest, misdemeanor complaint or felony indictment, is that the accused knowingly possessed stolen property. Further you must also have the intent to benefit yourself or impede the owner from recovering his or her property whether it is money from a bank account, an antique watch or an iPad.
The question posed here is whether you can be arrested, charged with and ultimately found guilty by a judge or jury for any degree of Criminal Possession of Stolen Property even if you did not actually steal the property, were not present when the property was stolen, had no involvement in the actually taking and were not arrested for and charged with Petit Larceny (New York Penal Law 155.25) or any degree of Grand Larceny? The simple and short answer is “yes.”
Fraud arrests are embarrassing. Theft arrests are compromising. Larceny arrests are stigmatizing. Felony arrests in New York? Those can land you in prison. Misdemeanors? By Desk Appearance Ticket or full processing in Central Booking, there is potential for incarceration too. Whether it is a shoplifting arrest or DAT for violating the Petit Larceny statute of New York Penal Law 155.25 or Fifth Degree Criminal Possession of Stolen Property Statute of New York Penal Law 165.40, a fake identification arrest for violating the Third Degree Criminal Possession of a Forged Instrument statute of New York Penal Law 170.20, a failure to pay a cab fare arrest for violating New York Penal Law 165.15, or any other crime involving Forgery, Falsifying Business Records, Theft of Services, Scheme to Defraud or Grand Larceny, if you are regulated through FINRA or FDIC, the ramifications can be a “game changer” to your career and livelihood. While you can potentially avoid reporting certain misdemeanor crimes on your Form U4, if you are charged with any felony (even if it is later reduced or resolved in a non-criminal manner) or convicted of the same, you will have to answer for your alleged actions. Even if the offense you are accused if is merely a misdemeanor (“merely” is a relative term as New York does not expunge criminal convictions for these crimes) and the offense involves fraud, forgery, wrongful taking of property or even false statements or omissions, you will be required to report the alleged infraction. This blog entry will not address the substance and definitions of the above crimes (that can be found throughout this blog and the New-York-Lawyers.org website), but reporting of these arrests and convictions on your U4 and consequences associated with FINRA regulations and those involving FDIC insured banks.
The difference between a felony larceny arrest when compared to a misdemeanor larceny crime in New York is significant. After all, felonies are crimes that are more likely to negatively impact professional licenses, immigration statuses, and other privileges and rights. Further a Grand Larceny conviction, as opposed to a Petit Larceny conviction, carries a greater potential term of incarceration. In New York, for example, a PL 155.25 (Petit Larceny) conviction is punishable by up to one year in jail while a PL 155.30 (Fourth Degree Grand Larceny) or PL 155.35 (Third Degree Grand Larceny) conviction is punishable by up to four years and seven years in a New York State prison respectively. Other Grand Larceny crimes such as Second or First Degree Grand Larceny are punishable by even greater years of incarceration.
What the above information highlights is the fact that should you face an arrest or indictment for a larceny crime in New York, one of the critical questions you should ask is whether or not the dollar amount of the theft can be decreased thereby lowering the degree of the crime. In concrete terms, can a Third Degree Grand Larceny be reduced to a Fourth Degree Grand Larceny or a Fourth Degree Grand Larceny be knocked down to a Petit Larceny? The following blog entry will analyze the aggregation scenario where crimes can be increased or enhanced and one worthy of discussing with your own criminal lawyer in the event it is on point with your case.
New York theft crimes come in a variety of offenses from misdemeanor to felony and non-violent to violent. Some crimes may be punishable by up to one year in prison while others can land you in prison for as long as twenty five years. When that crime involves a vehicle theft, the value of the car usually has a direct impact on the crime. Some thefts are automatically felonies such as New York Penal Law 155.30(8). This offense, Fourth Degree Grand Larceny, makes it a felony to steal a vehicle valued in excess of $100. However, if the car is worth more than $3,000 or $50,000, the crime would be kicked up to New York Penal Law 155.35 or 155.40 respectively. These offenses carry even greater sentences of imprisonment beyond the four years associated with PL 155.30(8), aka, Grand Theft Auto.
This blog entry will deal not with the actual theft of a car, truck or SUV in New York, but the unauthorized use of the same and what conduct rises to the level of violating NY PL 165.05, Third Degree Unauthorized Use of a Vehicle.
Whether you are charged with a misdemeanor Petit Larceny, New York Penal Law 155.25, or a more serious felony including Grand Larceny in the Fourth, Third or even greater degree, New York Penal Law 155.30 and 155.35 respectively, there are certain common elements that prosecutors must establish beyond a reasonable doubt. While a conviction for PL 155.25 may “only” carry a sentence of up to one year in jail where as a conviction for PL 155.30 or PL 155.35 may be punishable by as great as four or seven years respectively, each arrest stemming from an Article 155 allegation requires the same degree of attention. The hurdle of legal sufficiency must always be overcome by prosecutors and challenged by your criminal defense attorney. This blog entry will address one of those elements or mandatory traits of a viable PL 155.25, PL 155.30, PL 155.35, PL 155.40 or PL 155.42 arrest. That is, it is it enough for a District Attorney to establish your intent to temporarily use another’s property or must they establish your intent to permanently deprive an owner of the same?