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Theft of Jointly Held Property: The “Zinke” Bar to Grand Larceny Prosecutions in New York

Most theft crimes are fairly straight forward. While that does not necessarily mean prosecutors can easily prove Grand Larceny beyond a reasonable doubt, roles of the parties are often clearly defined. That is, there is a defendant or the accused and the complainant or the victim. Whether the Grand Larceny theft is in Manhattan for New York Penal Law 155.30 (value in excess of $1,000, but $3,000 or less) or the Grand Larceny theft is in Brooklyn for New York Penal Law 155.35 (value in excess of $3,000,but $50,000 or less), there is an unlawful taking by one party from another. Sadly (or maybe to the benefit of the accused), nothing in the world of New York criminal law or a New York criminal defense attorney is that easy. As I noted in a previous blog entry on the same general topic, what happens if the property alleged to be stolen is jointly owned? Can there still be a theft or larceny regardless of the value of that property?

In a case stemming out of Kings County (Brooklyn) New York, a judge, prosecutor and criminal defense attorney had the opportunity to litigate this issue. In People v. Rosenfeld, 17 Misc.3d 253 (Kings Cty Sup. Ct. 2007), defendants where charged with Grand Larceny in the Second Degree, pursuant to New York Penal Law 155.40, after they were accused of stealing real property from a co-owner of that property. A Brooklyn Grand Jury indicted the defendants for their forging of a deed that resulted in an improper transfer of the complainant co-owners’ interest in that same property. Despite the contention of the prosecution, the Court held (to be addressed in more detail below), that the defendants could not be charged as they were tenants in common with the co-owners they allegedly stole from. Simply put, no co-owner of property has a superior right of possession, a necessary element in the New York Penal Law (see NY PL 155.05(5)).

By way of background, the defendants owned a 2/3 share of a building in Kings County. The complainants owned 1/3 of the same.The respective deeds do not specify ownership portions of the building, but only the percentage share each owned in the entire property. For whatever reason the defendants were alleged to commit this crime, prosecutors charged the defendants with Grand Larceny for stealing this 1/3 share by forging a deed resulting in the improper transfer of the complainants’ interests in that share.

As stated by the Court:

“‘[A] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.’ ‘Owner’ is defined by Penal Law [] 155.00(5) as one who has a right to possession [of the property taken] superior to that of the taker, obtainer or withholder.’ People v. Zinke, 76 N.Y.2d 8, 10, 556 N.Y.S.2d 11, 555 N.E.2d 263 (1990), quoting Penal Law [] 155.00(5). The statute, however, places a significant limitation on this definition by providing that a ‘joint or common owner of property shall not be deemed to have a right of possession superior to that of any other joint or common owner thereof.’ See Penal Law []155.00(5). Thus, a joint or common owner of property may not be charged with larceny for stealing from another joint or common owner as the victim of the theft is ‘deemed’ to have an equal and not a superior right of possession. People v. Zinke, 76 N.Y.2d at 11, 12, 556 N.Y.S.2d 11, 555 N.E.2d 263; see People v. Brown, 185 Misc.2d 326, 330, 711 N.Y.S.2d 707 (Crim. Ct. Bronx Co.2000) (‘[A] joint or common owner of property cannot be guilty of larceny for taking commonly held property. He may be liable for civil damages for conversion of the like, but he is not criminally liable.’); People v. Kheyfets, 174 Misc.2d 516, 519, 665 N.Y.S.2d 802 (Sup.Ct. Kings Co.1997) (‘[I]f property owned by two or more people is taken by one owner, he or she cannot be convicted of larceny. The principle behind this rule is that if one is an owner of property and entitled to possession at the time of the taking, there can be no larceny.’); see also People v. Green, 5 N.Y.3d 538, 542, 807 N.Y.S.2d 321, 841 N.E.2d 289 (2005) (The larceny statute ‘cannot properly be read to require merely the intent to take property, rather than the intent to take property from a person with a superior right to possession.’). Indeed, as the Court of Appeals explained in People v. Zinke, 76 N.Y.2d at 11, 556 N.Y.S.2d 11, 555 N.E.2d 263, the notion that joint or common owners of property cannot be charged with larceny is firmly rooted in common law.” “Although New York law requires this Court to dismiss the indictment, it does so with great regret. It defies logic that the defendants, whose conduct was at best without conscience, are able to escape criminal liability based on arcane, hyper-technical principles of property law and outdated notions of criminal justice. However, ‘until the [L]egislature shows Lord Hale the door’ one tenant in common may not steal from another tenant in common as neither party has a superior interest in the property.”

It is worth noting that although the defendants could not be charged with Grand Larceny, the obvious questions are can they be charged with other offenses and why were they not charged? Certainly, a bar to prosecuting Grand Larceny is not a bar from prosecuting other crimes. In the instant matter, however, the statutory time frame had lapsed thereby preventing the District Attorney’s Office from charging such crimes as Falsifying Business Records or Criminal Possession of a Forged Instrument. In different circumstances these crimes may have been viable and likely would have been pursued.

To educate yourself further on the crime of Grand Larceny and all of its subsections and nuances, please follow the highlighted links back to the NewYorkTheftAndLarcenyLawyers.Com website. Additional information on the crimes of Falsifying Business Records and Criminal Possession of a Forged Instrument can be found on the website or through the respective links.

Established by two former Manhattan prosecutors, Saland Law PC is a New York criminal defense firm. The New York criminal defense attorneys at Saland Law PC represent clients in white collar and theft investigations and arrests throughout New York City and the surrounding region.

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