It “is what it is.” Sadly, I have seen it not only when I served as a New York prosecutor in Robert Morgenthau’s Manhattan District Attorneys Office, but I have seen as a New York criminal lawyer as well. Maybe you stole a purse and didn’t realize there was a credit card inside of it. Instead, you grabbed a backpack that happened to have a debit card in one of the interior pockets. Even if you were merely trying to snag a bag that you knew had $50 or $60 dollars in it, you are now charged with a felony for violating Grand Larceny in the Fourth Degree according to New York Penal Law 155.30(4). The unfortunate thing is that you never had the desire to steal that credit card or debit card or even knew it was there.
As a seasoned New York criminal attorney I have watched in recent years as crimes involving credit cards and debit cards have grown throughout the metropolitan New York City area. There are several different charges that can stem from credit card theft or credit card fraud, such as Identity Theft in the First Degree under NY PL 190.80, Criminal Possession of Stolen Property in the Fourth Degree under NY PL 165.45, and Criminal Possession of a Forged Instrument in the Second Degree under NY PL 170.25. However, a very common credit or debit card crime that elevates an otherwise lesser crime into a felony offense is Grand Larceny in the Fourth Degree. Previously on our sister blog site (NewYorkCriminaLawyerBlog.Com), as well as our two websites (New-York-Lawyers.org and NewYorkTheftAndLarcenyLawyers.Com), I extensively examined how Grand Larceny charges are generally broken down by the value of the property alleged to be stolen. In substance, the higher the value of the stolen property the greater the degree of the crime. Following this through, the greater the degree of the crime the longer the possible prison term for a convicted defendant. I won’t regurgitate the full differences here, but it is important to note that if the value of the stolen property is less than $1,000 a criminal will face only Petit Larceny charges pursuant to NY P.L. 155.25, an “A” misdemeanor charge. That is, of course, if your theft does not involve a credit or debit card.
Nonetheless, when the theft involves a debit or credit card an Assistant District Attorney can “pop” the charge up, regardless of the value of the theft, to a Felony Grand larceny crime. Pursuant to New York Penal Law 155.30(4) a person is guilty of Grand Larceny in the Fourth Degree when they steal property that consists of a credit card or debit card. Grand larceny in the fourth degree is a class “E” felony charge punishable up to four years in a New York State prison. This is obviously a major difference than receiving a Petit Larceny charge.
So let’s say, you make the bad mistake of taking a co-workers credit card. You use it to buy a $15 dinner that night at a bar around the corner. Obviously this is a criminal act. However, what seemed like a “minor” infraction is now a possible felony. It doesn’t matter that the value of the theft was only $15. Because the theft was of a credit card you will face charges of Grand Larceny in the Fourth Degree (not to mention other crimes including Forgery in the Second Degree for signing the card owner’s name and Identity Theft for doing the same).
Furthermore, let’s revisit the language of Grand Larceny in the Fourth degree, NY PL 155.30(4). It states that one will be guilty if they commit larceny and “the property consists of a credit card or debit card.” Obviously, if I steal a credit card or debit card and use it, I will be guilty under this statute. What if, as I briefly mentioned above, I steal a bag, which contained a debit card, but I never had any knowledge that it was there? Does the prosecution have to show that I knew that a credit card was included in the property I took? The language of the statute shows the true intention of the legislature. “Consists” does not require any proof of knowledge on the thefts part. If you steal a bag, which happened to contain a credit card, the only thing the prosecutor has to prove (beyond a reasonable doubt) was that you had larcenous intent when stealing the bag.
The Court of Appeals of New York (New York State’s top court) took up this exact legal question in People v. Mitchell, 77 N.Y.2d 624. The defendant was convicted of Grand Larceny in the Fourth Degree (NY P.L. 155.30(4)) and Criminal Possession of Stolen Property in the Fourth Degree (NY P.L. 165.42(2)). The defendant pick-pocketed the victim’s wallet, which contained a credit card. The defendant was not a good thief and the victim actually regained possession of the lifted wallet. Still she had committed larceny and was (though shortly) in possession of stolen property.
On appeal the defendant challenged the convictions saying that the state had failed to prove that she knew the stolen wallet contained a credit card. Her argument was: if I didn’t know that I was stealing a credit card, then I can’t be convicted of Grand Larceny in the Fourth (for stealing a credit card). The Court of Appeals upheld the conviction. Citing the legislative history the court explained that Grand Larceny of a credit card was created to “combat growing credit card theft and abuse.” A thief who steals property, especially credit cards, never knows the exact value or character of the property. “This is especially so when one considers how credit cards are carried by people and the locations where the crimes are committed.”
In other words, if you are stealing a wallet, a purse, or a bag, or some other personal belonging that may end up containing a credit card (maybe even a jacket or hoodie with pockets), you may be in more trouble than you thought. You, as the alleged thief, would not need to know that the wallet or the bag you were taking actually had a credit card. It is enough that you intended to steal the wallet or the bag. The overall goal is that by elevating the crime to a felony, without considering the value of the stolen property, New York State hopes to curb theft of property that might contain a credit card or debit card. As we have all probably seen in the news, a theft involving credit cards or debit cards is a sure way to get prosecutors to elevate the crime from a misdemeanor to a felony. It is no defense that you did not know that you were stealing a credit card. The law is strict. Ignorance of the law is never an excuse.
To better understand the crimes of Grand Larceny, Petit Larceny, Forgery and Identity Theft, you can follow the links to the related web pages on these subjects or through the websites listed below.
Founded by two New York criminal lawyers who served as Assistant District Attorneys in the Manhattan District Attorney’s Office, Saland Law PC represents individuals investigated or arrested for credit card and theft crimes throughout the New York City region.