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.
The Foreign Corrupt Practices Act (FCPA) is a landmark piece of federal legislation. The FCPA deals with payoffs and kickbacks made by certain kinds of financial service professionals to foreign government officials relating to securing more business. In recent years, compliance and enforcement agencies such as the SEC have seemingly increased their focus under this law on the domestic financial services industry, and the actual banks and executives themselves. One of the two key aspect of the FCPA, and the one most relevant to both you and your attorney, is the component that deals with bribery. The law prohibits U.S. Individuals and businesses from offering or providing anything of value to a foreign government official with the intent to influence, award business or gain an unfair advantage.
Theft and larceny related arrests in New York involve crimes that not only have immediate impacts in terms of incarceration and criminal charges, but have the collateral consequence that complicate careers and jobs. For example, if you are an employee of New York City, your arrest whether by Desk Appearance Ticket or due to a felony allegation, will trigger a formal action on the part of the administration. What is of critical importance, and something that your criminal lawyer should stress to you, the ultimate outcome of your case. Yes, an arrest is bad, but a felony or misdemeanor conviction is worse. Far worse. Fortunately for a client of Saland Law PC, an arrest for Fourth Degree Grand Larceny, New York Penal Law 155.30, resulted in a non criminal violation of Disorderly Conduct. Checking off the box of avoiding a criminal conviction, our client’s shoplifting arrest from Century 21 involving just shy of $2,000.00 in clothing will ultimately be sealed without any public record.
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?
Embezzlement cases in New York are often some of the most difficult crimes to defend for Grand Larceny lawyers and Embezzlement defense attorneys. Yes, every case is different, but Grand Larceny by Embezzlement often involves a “smoking gun” of a paper trail. In these cases, money is transferred out of an employer’s account and into the account of an accused. As a New York City and greater New York criminal defense attorney, it no longer surprises me to see people make these boneheaded and easily traceable transactions. Even worse, from a criminal defense perspective, as much as an accused may want to apologize for the infraction, admitting the indiscretion to the police, a detective or employer makes any criminal case that much stronger. From a personal and “human” side, we can all understand that people make mistakes and making a victim whole is what we should endeavor to do, but when you are accused of a crime you should always think things through before making any statement to any party.
Every element of every crime is equally important. Irrespective of the charge you face, prosecutors in New York City, Westchester County or anywhere else in the State of New York must prove each element beyond a reasonable doubt. This is no different if you you are charged with Grand Larceny as codified in Article 150 of the New York Penal Law or a violent offense of Assault as codified in Article 120 of the New York Penal Law. Addressing the former offense of Grand Larceny, one of the elements that an Assistant District Attorney must prove to a jury or a judge at trial is that the value of the alleged property you allegedly stole exceeds either $1,000.00, $3,000.00, $50,000.00 or $1,000,000.00. Simply, value is an essential element of any Grand Larceny crime that your criminal lawyer or criminal defense attorney will vigorously challenge. If a judge or jury agrees with you, as opposed to the prosecutor, then either the trial will end in an acquittal or a conviction for a lesser criminal offense. Where a case involves cash or money, your attorney’s task may be quite difficult, but how is value assessed (or challenged) when the value of the property in question is not easily quantified?
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.
Whenever you get contacted by an investigator from the New York City Human Resources Administration (“HRA“), its is certainly an acceptable response to be concerned that you are or have been a subject of a potential criminal investigation. Maybe the Bureau of Fraud Investigation or another internal agency of the NYC HRA believes you lied or misrepresented your financial resources or employment when you obtained medical or other benefits. Maybe their is evidence of some other supposed wrongdoing. If accurate and correct, your conduct may have been willful. However, your actions may also may been the result of an honest mistake. Whatever reason the HRA is contacting you by phone or letter, its is critically important to understand your potential exposure and to learn how to protect yourself before you admit to any fraudulent act that can not only compound your situation in terms restitution, but also lead to a criminal prosecution by a District Attorney’s Office.
As a New York criminal attorneys who regularly defends clients against arrest, indictments, investigations and general allegations of theft and fraud, the most difficult cases we encounter are those that are supported by strong evidence of guilt (a/k/a potential proof beyond a reasonable doubt). For example, in a New York Grand Larceny by Embezzlement, a “paper” trail may lead directly to a client’s footsteps. If a crime was perpetrated on a computer, search warrants may reveal emails, log in information and even deleted files supporting the District Attorney’s Criminal Possession of Stolen Property or Forgery indictment. Whatever the crime and whatever the allegation, when evidence is overwhelming from a legal and factual standpoint, the mitigation defense is often the next weapon in your criminal lawyer’s arsenal. The following case result where our client was charged with the felonies of Scheme to Defraud in the First Degree (New York Penal Law 190.65), Grand Larceny in the Third Degree (New York Penal Law 155.35) and Grand Larceny in the Fourth Degree (New York Penal Law 155.30) demonstrates how effective the mitigation defense may be to avoid incarceration or a felony conviction.