Petit Larceny, New York Penal Law 155.25, is one of the most common theft crimes charged in New York, prosecuted by Assistant District Attorneys, and defended by New York criminal lawyers. Like its sister offense of Criminal Possession of Stolen Property in the Fifth Degree, New York Penal Law 165.40, this misdemeanor “shoplifting” crime is one that prosecutors can very easily draft in an accusatory instrument (called a criminal court complaint or information). In fact, in New York City’s boroughs of Manhattan, Brooklyn and Queens, there is fairly boilerplate language that is found in most complaints. Of grave concern to criminal defense attorneys, however, is whether or not the boilerplate language that is plugged into these complaints is legally sufficient and not conlusory (are there enough factual allegations and not mere conclusory statements). Whether an accused finds himself or herself before a judge during an arraignment by way of Desk Appearance Ticket (commonly called a DAT or Appearance Ticket) or after spending 24 hours in the infamous Tombs should the information be legally insufficient an attorney can file a motion for dismissal.
It certainly is not used in the everyday lingo of a non-lawyer and rarely used by those who are practicing attorneys, but asportation is a term that a New York criminal defense attorney or New York theft lawyer should be keenly aware of. More specifically, the importance of this term to a New York shoplifting defense attorney and an accused shoplifter cannot be understated. After all, if you are convicted of Petit Larceny (NY PL 155.25), this misdemeanor crime could land you in jail for up to one year whether the theft involved a $1 pack of gum or two pairs of Cole Haan shoes valued at $500.00 each. This blog entry will focus on asportation and its relevance to any shoplifting or related theft or larceny case in New York.
Most New York tax crime lawyers who are also experienced criminal defense attorneys represent clients charged with committing “tax fraud acts” as defined and identified in New York State Tax Law sections 1802, 1803, 1804, 1805 and 1806. These New York tax crimes, however, are certainly not the only potentially felony offenses you may be exposed to should you be arrested or indicted for an illegal withholding or stealing of tax monies. In fact, one of the more common tax crimes investigated in Queens, Brooklyn, the Bronx, Manhattan and even Westchester and Long Island, tax crimes relating to cigarettes has spiked in recent years. Codified throughout various subsections of New York Tax Law 1814, failure to pay taxes on certain tobacco products or the possession and transportation of untaxed cigarettes is can potentially lead to a significant period of incarceration. The ease by which prosecutors in New York can charge a person with violating one of the many crimes relating to improperly or untaxed cigarettes is highlighted by the subject of this blog entry, People v. Ran Yang, 2009 NY Slip Op 50793(U) [23 Misc 3d 1117(A)].
In pertinent part, New York City Administrative Code 11-4012 (a)(1) states that if you willfully attempt in any manner to evade or defeat any tax imposed [in this section] or the payment of that tax you are guilty of a misdemeanor. Further, New York City Administrative Code 11-4012 (b) makes it a misdemeanor crime if you possess or transport for the purpose of sale any unstamped or unlawfully stamped packages of cigarettes subject to tax. Alternatively, if you sell or offer for sale unstamped or unlawfully stamped packages of cigarettes it is also a misdemeanor crime. These two criminal violations of the New York City Administrative Code generally mimic, but are distinct crimes, from New York State Tax Law 1814(a)(1) and New York State Tax Law 1814(d). The latter of these crimes involve the illegal transportation and sale of unstamped or unlawfully stamped cigarettes while the former is a more generic tax crime.
Its a common theme or perceived defense to shoplifting in New York City that routinely rears its head from those accused of shoplifting and attorneys not necessarily familiar with how to defend a shoplifting arrest. “I didn’t leave the store so how can I be guilty of a crime involving theft or stealing? How do the crimes of New York Penal Law 155.25 or New York Penal Law 165.40 apply to me?” Even more common than the question, the answer is always the same. Yes, an experienced shoplifting attorney and criminal lawyer knows that each case is fact or evidence specific, but you can be arrested and charged with the shoplifting crimes of PL 155.25 or PL 165.40 without taking a step outside the walls of the retail store where you were arrested.
A recent decision, and one I am confident your criminal attorney or New York shoplifting lawyer or should have read, that addresses this precise issue is People v. Bailey, 2013 NY Slip Op 51021 – NY: Appellate Term, 1st Dept. 2013. In Bailey, the defendant moved to dismiss a complaint (an information) for facial sufficiency because the defendant believed that the conduct described in that complaint did not satisfy the elements and establish the minimum criteria for violating the Petit Larceny and Fifth Degree Criminal Possession of Stolen Property statutes. There, the People drafted the accusatory instrument stating in substance that the defendant “removed six pairs of earrings from a display, ‘conceal[ed]’ them inside her jacket sleeve, and ‘walk[ed] past more than one open register and move[d] to another floor in the store in possession of the property and without paying for it.'”
If being accused of a New York felony isn’t scary enough, being arrested for a felony crime where your immigration status stands in the balance certainly is. A Crotty Saland PC client accused of stealing more than $100,000 and attempting to steal an additional $275,000 from a client of the bank he managed, faced such fears. Fortunately for our client, however, despite being arrested for Attempted Grand Larceny in the Second Degree (New York Penal Law 110/155.40) and accused of Grand Larceny in the Second Degree (New York Penal Law 155.40), our client ultimately resolved his arrests with a misdemeanor plea to Petit Larceny (New York Penal Law 155.25). A misdemeanor, our client received the equivalent of “time served.” Throughout the entire process since our client’s arrest, prosecutors offered or recommended felony pleas that included as much as six years in prison. If convicted, our client faced an even greater sentence.
Before continuing, and by way of background, a person is guilty of Second Degree Grand Larceny (NY PL 155.40) if and when that person steals property (money, for example) and the value of the property is greater than $50,000, but does not exceed $1,000,000. Obviously, an Attempted Second Degree Grand Larceny (NY PL 110/155.40) is an attempt to commit this crime. A completed Grand Larceny in the Second Degree carries a punishment and sentence of up to five to fifteen years in prison for a first time offender while an attempt to commit that crime carries a sentence of up to two and one third to seven years in prison.
It is fairly common for store security at Macy’s, Bloomingdale’s, Century 21 or any other New York City department store in Manhattan, Brooklyn or Queens, to “jump the gun” when apprehending or detaining an individual for shoplifting. Often time, an arrested shoplifter in New York is accused of placing items in his or her bag or tote as the basis of a shoplifting arrest despite there being no criminal intent on the part of the accused. While prosecutors may charge these people with the “shoplifting crimes” of Criminal Possession of Stolen Property in the Fifth Degree (NY PL 165.40) or Petit Larceny (NY PL 155.25), a little bit of investigation on the front end may have clearly established an arrest was unwarranted. Sadly, although any defendant has a right to a criminal attorney or, in this case, a New York City shoplifting lawyer, by the time an accused speaks to their counsel they have already been printed and processed with a shoplifting Desk Appearance Ticket (DAT). Unfortunately, the department store or the police have little concern at this juncture that a false allegation can ruin your professional career or jeopardize your immigration status.
As a preliminary matter, most NYC department stores do not give their patrons carts or reusable totes to place their potential purchases while shopping. Therefore, when one’s hands are full, one has little choice but to put the items in a bag that one brought to the store whether it be a pocketbook, canvas bag or even the bottom of a stroller. Also, because most department stores in New York are on multiple floors, its is far from unreasonable that a patron would go up and down elevators, escalators or stairs while perusing potential purchases. In fact, during any outing, numerous cash registers will be passed as a shopper continues to decide what to purchase or try on. Sadly, this innocent behavior can not just lead to an arrest by a rude or bullying store security officer, but the police will arrest you without investigating the validity of the store employee’s assertion. It will be up to you and your criminal defense lawyer to recreate what truly happened.
Not necessarily the most serious of all theft and larceny related offenses in New York, Fraudulent Accosting is still a crime that not only can land you behind bars for up to one year, but a conviction for New York Penal Law 165.30 is permanent. In other words, it ain’t ever goin’ away! All humor aside, one who is accused of any crime must recognize the long term and collateral consequences of an arrest or conviction. Because of this, one must also pursue any legal defense available. In People v. Juan Bannister, 2012CN005065, NYLJ 1202582020231, at *1 (Crim. NY, Decided December 10, 2012), the defendant did just that when he actively exercised his rights with his criminal defense attorney to defend himself.
The complaint or information against Bannister alleged that he had committed the crime of NY PL 165.30. In legal terms it was alleged that he accosted a person in a public place with the intent to defraud or swindle that person by means of a trick or confidence game.
Shoplifting arrests throughout New York City are relatively common events. Sadly, whether it is at Bergdorf Goodman in Manhattan, Century 21 in Queens or any other department store in Brooklyn, often time an overzealous or moderately experienced store security officer is all to eager to assume you were shoplifting. Even worse, they are ready to bully you into signing paperwork they will shove in your face without explanation. Maybe it is because there are bonuses paid by employers or built in incentives, but whatever the reason there have been countless people accused of and arrested for shoplifting in New York who committed no crime at all. Not only have I witnessed this as a New York criminal defense attorney who routinely represents clients in shoplifting arrests, but as a Manhattan Assistant District Attorney where I prosecuted shoplifters for both felony and misdemeanor offenses.
A case that drives this point home is People v. Lioudmila Haimovici. In Haimovici, it was alleged that the defendant stole from a Macy’s Department Store. More specifically, Haimovici was charged with and arrested for violating New York Penal Law 155.25, Petit Larceny. An A misdemeanor, NY PL 155.25 is a serious crime that carries a sentence of as much as one year in a county jail (hello, Rikers!). It was alleged that the defendant brought unpaid store merchandise into a restroom where he was then stopped immediately after exiting a stall. After a bench trial (also called a “judge trial”), the court found the defendant guilty of Attempted Petit Larceny, New York Penal Law 110/155.25.
No two cases in New York involving arrests for theft crimes such as Grand Larceny and Criminal Possession of Stolen Property are alike. Sure, there may be similarities in two Embezzlement cases or two felony Grand Larceny shoplifts, but beyond similarities in the technical arrest or indictment charge, there are often vastly different circumstances. How your theft lawyer or larceny defense attorney utilizes mitigating factors or analyzes the evidence will likely have a tremendous impact on the ultimate resolution in your case. Is it possible you will be forced into a trial or, alternatively, you feel a trial is in your best interest? If not, can your conduct be decreased to a misdemeanor or non criminal offense?
As New York larceny lawyers and New York criminal defense attorneys representing clients throughout the New York City region in crimes ranging from Embezzlement, Tax Fraud and Credit Card Theft to Shoplifting, felonies and misdemeanor stolen property cases, Crotty Saland PC has certainly seen its fair share of white collar crimes. Couple this experience with our two founding members service as Assistant District Attorneys in Manhattan, our criminal defense lawyers have successfully defended and prosecuted countless theft crimes. Do we have a quick answer as to how to beat your case? Do we automatically know the best defense to your arrest? Can we guarantee a particular result? The answer to all these questions is clearly “no,” but we certainly have the experience to identify and formulate the best defense we believe will resolve your case in an appropriate and least damaging manner.
While it is sometimes fairly easy for prosecutors to establish the crime of Criminal Possession of Stolen Property after a defendant admits to knowing the property is stolen or the defendant is observed actually stealing the property, not all arrests and indictments in New York for Criminal Possession of Stolen Property are that clear. Instead, some Grand Larceny and Criminal Possession of Stolen Property cases defended by criminal defense attorneys are allegations that are based more on circumstantial evidence or presumptions found in the New York Penal Law. Prosecutors in New York often even ask jurors and judges to rely on their common sense when determining if a crime has been committed (who would have thought that?!?!). In the realm of New York arrests involving Criminal Possession of Stolen Property, a criminal lawyer needs to be ready for anything.
In People v. Bester, 163 A.D.2d 873 (4th Dept. 1990), a defendant was arrested for violating New York Penal Law 165.50. Prosecutors were required to prove Third Degree Criminal Possession of Stolen Property by establishing beyond a reasonable doubt that the defendant knowingly possessed property with the intent to benefit himself and the property was worth more than $3,000 but not more than $50,000. There, the defendant argued that prosecutors failed to establish the defendant’s knowledge that he knew the property was stolen. Bester claimed that he purchased a properly packaged fibergastroscope (a medical device) from a pawn broker for $20 without any knowledge it was stolen.