“Value.” Say it with me. “Value.” Heck, scream it from the trees or the jury box. “Value!” Sing it from the judge’s chair or the prosecutor’s office. Whether in the Grand Jury or Trial Jury, value is often the most critical if not central element of any Grand Larceny arrest in New York. Sure, there has to be an unlawful taking or stealing (don’t forget to challenge that along with your arrest), but stepping away from the foundation of any larceny or theft arrest, barring the property stolen satisfying a specifically identified object or type of thing, a credit card for example, value is king (or queen). Don’t take my word for it. I’ve only practiced criminal law as a New York criminal defense attorney and both a former Manhattan Assistant District Attorney and Westchester County Town Prosecutor for more than sixteen years. Heck, what do I know…
Sometimes in a New York Grand Larceny and Criminal Possession of Stolen Property arrest or trial, a criminal defense attorney challenges the value placed on property that his or her client allegedly stole. For obvious reasons, this is done to potentially reduced the degree and severity of the charged crime and to limit exposure to restitution if and when there is a conviction. This defense may be part of or distinct from an overall plan of attacking the prosecutor’s case, but one step in a defense that should not be ignored. Because of the critical importance value has to any theft, larceny or stolen property arrest, indictment or trial, I have dedicated many blog entries to this subject. This particular entry will examine how the District Attorney can present evidence to a jury as to value without an “expert”. In other words, for example, does law enforcement need the antique car dealer to testify that the vehicle in question is valued at $50,000.01 to elevate the crime from a Third Degree Grand Larceny to a Second Degree Grand Larceny? Is there another means by which evidence can establish this value and therefore the crime of PL 155.40 as opposed to PL 155.35? If so, what are those means?
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.
Where a defendant is to plead guilty or in fact accepts responsibility for an arrest involving a Grand Larceny crime in New York, there is often an amount of restitution that prosecutors attempt to secure as part of a negotiated plea. No, the District Attorney is not mandated or required to make a victim of a Scheme to Defraud, Grand Larceny or other theft whole, but it is common for prosecutors to proactively secure as much of the monies possible and for defendants to make that payment in advance or in the future as part of the disposition. Where a theft, by embezzlement or any other scheme, is charged as Fourth Degree Grand Larceny (New York Penal Law 155.30), Third Degree Grand Larceny (New York Penal Law 155.35), or Second Degree Grand Larceny (New York Penal Law 155.40), there will almost always be a component of restitution up front if the accused has the means. Why? Barring the monies or property being returned, the crimes themselves reflect a wrongful taking of in excess of $1,000.00, $3,000.00 or $50,000.00 respectively. In the event the offense charged is greater than $1 million, then a conviction for First Degree Grand Larceny (New York Penal Law 155.42) will have the added issue of mandatory state prison with a minimum of a one to three year sentence and a maximum of eight and one third to twenty five. Simply, these thefts involve property or money with significant value and the DA will not turn a blind eye to a victim’s loss.
While the purpose of this blog is not to address the specific crimes involving Grand Larceny, Criminal Possession of Stolen Property or Scheme to Defraud, the issue here is to identify what your right is to challenge the amount you are claimed to have stolen even if you accept responsibility and plead guilty. If you admit to stealing in excess of $50,000.00, for example, because the prosecution claims the amount is $250,000.00 does that mean you must simply acquiesce to this value and you will be responsible for those dollars one way or another?
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.
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.
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?
Manhattan District Attorney Cyrus Vance, Jr. is at it again. No, Vance’s band of prosecutorial marauders have not just hopped, skipped and jumped from county to county or state to state, but Vance’s seemingly infinitely long appendages have grabbed yet another alleged fraudster. According to the Manhattan District Attorney’s Office website, junior Ponzi schemer and United States Naval Academy graduate, Bryan Caisse, duped friends and former classmates out of more than $1 million when law enforcement finally caught up to him in airport in Bogotá, Colombia. Although in the aggregate the crime(s) exceeded $1,000,000, and therefore could be the basis of a First Degree Grand Larceny arrest, Caisse dodged a proverbial bullet. Instead, it appears that DA Vance’s minions charged Caisse with multiple lesser offenses including Second Degree Grand Larceny and Third Degree Grand Larceny on an individual basis. Of course, avoiding mandatory state prison on a plea or conviction of First Degree Grand Larceny is a hollow victory. There is no doubt prosecutors will ask for, and many judges would sentence, a term of incarceration in a New York State prison.
Prosecutors claim that commencing sometime in 2008, Caisse said he was going to start a company, Huxley Capital Management. Friends and former classmates contributed and gave Caisse more than $1 million. What is right out of Bernie Maddoff’s DIY handbook, it is alleged that Caisse pocket the money for such items as rental payments, car services, personal debts, credit cards, cash withdrawals, and restaurants. Ultimately, when the the “investors” sought repayment, Caisse couldn’t deliver. Prosecutors have gone as far as to assert that Caisse even claimed he was in a car accident to avoid repayment. Unfortunately for some of the investors, it is believed only some folks were paid back from stolen proceeds of others.
Some people wait to reorder toner and ink when their printer spews out documents with faint vertical stripes. Others jump to purchase more when their computer screen flashes the low ink warning. Rumor has it that Manhattan District Attorney Cyrus Vance Jr. could care less when his staff speed dials Staples to replace ink (well, with budget cuts throughout NYC he probably prefers waiting until the former and not the latter). Its not so much the timing of when one orders copy machine or printer toner that gets DA Vance’s goat, but whether or not the person is authorized to do so and does so in a manner that is consistent with his or her employment. Setting the tone for future work place malfeasance, DA Vance announced the indictment of Adrian Rodriguez, a former Fried Frank LLP employee, for allegedly purchasing north of $375,000 worth of ink and toner that he then sold at a fraction of the cost to line his own pockets.
The Manhattan District Attorney’s Office worked with Fried Frank LLP to catch the duplication department desperado by setting up a sting operation whereby undercover investigators hid inside refrigerator sized boxes of copy machine toner and ink delivered to the unsuspecting toner thief (small pencil sized holes were poked throughout to enable viewing and oxygen flow). When Rodriguez attempted to sell the ill gotten gains the following day, investigators immediately jumped out and exclaimed, “gotcha!” Shortly thereafter, Rodriguez voluntarily supplied prosecutors with a written confession on 48 blue and pink Post-its.
According to the New York Daily News, a yarmulke sporting thief allegedly stole two “torah crowns” from Young Israel of Queens Valley. Posing as a congregant, it is alleged that the unapprehended varmit’s ill gotten gains netted him in excess of $1,000. Assuming the alleged perpetrator of this synagogue theft is ultimately caught, what potential crimes could he face?
One of the first thing that prosecutors do in any theft case is ascertain the value of the stolen property. Once the aggregate value of stolen property from one victim exceeds $1,000 (and is $3,000 or less as in this case), Assistant District Attorney know that they have a Fourth Degree Grand Larceny felony. More specifically, adding the value of the two torah crowns together, prosecutors will have on charge of New York Penal Law 155.30(1). While the theft of an individual torah crown may only be a misdemeanor Petit Larceny (New York Penal Law 155.25), the aggregation law allows law enforcement to pursue felony Grand Larceny prosecutions where there are multiple thefts over any period of time and from the same complainant.