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Yes, when it rains it pours. No, not just pours, but it comes down in hail like driving sheets of rain. From catching a flight out of Russia to the United States expecting to traipse around Gotham before heading elsewhere to getting whisked away in handcuffs by the NYPD to the “Tombs” of Manhattan Central Booking, Svetlana Zakharova is arguably soaked to her core. What was initially described by the media as an attempt to extort approximately $50,000 from Eliot Spitzer, was in fact an actual and completed Grand Larceny by Extortion. According to the allegations leveled by a Bronx prosecutor serving as a special prosecutor on behalf of the Manhattan District Attorney’s Office, Zahkarova succeeded in scaring the heck out of Client 9 to the point that he paid his alleged extorter $400,000.

Armed with the new allegations provided at Zakharova’s arraignment in Manhattan Criminal Court, the presiding judge set bail to the tune of $1 million. Right or wrong, excessive or not, not only will Zakharova have time to put her defense together, but selfishly I can now leisurely put my rambling thoughts together to offer a brief analysis of the crimes Zakharova faces.

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Eliot Spitzer, the onetime New York State Governor and Attorney General, has once again found himself immersed in controversy. According to reports, however, the new tabloid fodder is not centered around alleged wrongdoing on the part of Client 9, but his alleged Attempted Extortion and Blackmail by Svetlana Zakharova, aka, Svetlana Travis. More specifically, Zakharova (Travis) had claimed that Spitzer met her in February 2016 at the Plaza Hotel in New York City where he choked and pushed her inside one of the rooms. Although merely speculation, it was reported that Travis worked as a high end Russian call girl and escort for as much as $5,000.00 a night. Despite Travis’ claims, after making the report to the police she refused to cooperate and returned to Russia. At some point she made financial demands of Spitzer who in turn initiated a civil suit against Travis only later dropping it.

Although I am not privy to the NYPD’s and Manhattan District Attorney’s investigation that led to the arrest of Svetlana Travis, the law of Extortion does not change from case to case. Instead, evidence must fit into the legal parameters of this crime. This blog entry will address this Grand Larceny offense and how the facts as they may be satisfy the elements of this alleged crime and conduct.

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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.

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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?

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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?

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When most New York criminal lawyers and every day people think of larceny and theft crimes, there are often a few ways stealing comes to mind. While a theft is a theft – any stealing of property $1,000 or less is a misdemeanor Petit Larceny pursuant to New York Penal Law 155.25 and possession of the items is a misdemeanor of Fifth Degree Criminal Possession of Stolen Property pursuant to New York Penal Law 165.40 – the items stolen can span tremendous distances apart. For example, a “run of the mill” shoplifting at Macys or Century 21 in Manhattan or charging iPhone left out unattended in a Brooklyn restaurant would qualify, can a a person be arrested for or convicted in New York for taking money in exchange for a sale that he or she knows in advance is fraudulent or bogus? What if, for example, a seller agrees to give you an LED television for $800, takes your cash and never returns? Alternatively, what if a seller tells you he is giving you a genuine Coach bag, he is paid, then sells you what is ultimately a knock off? Has a misdemeanor theft or larceny crime been perpetrated? Is this a larceny by trick? Hopefully this blog entry will shed some light on both this question and answer.

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In New York, like any other state, evidence can be either direct or circumstantial. While it would be easy for a District Attorney’s Office and local police department to observe a theft and larceny related crime first hand, crime, or alleged crime, simply doesn’t work that way. Whether the arrest offense is the taking, a larceny, or the criminal possession, certain actions and statements without direct proof can provide the police with probable cause and the prosecution with proof beyond a reasonable doubt. Although this means of prosecuting crimes in New York is relevant to any offense, the following case reflects how it can directly impact an arrest for Criminal Possession of Stolen Property pursuant to New York Penal Law Article 165.

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Sometimes the threat of an arrest or prosecution is enough to send an innocent person into a deep depression or panic. After all, if an Assistant District Attorney or detective with the NYPD is asking you questions (never forget your right to counsel and similar right to refuse to answer questions), the hint of wrongdoing is as embarrassing as it is crippling. In the context of a White Collar crime such as a larceny, theft, tax fraud or embezzlement related offense, whether it is your neighbor, employer, accountant or friends, when these people are subpoenaed or merely questioned by law enforcement, the brand of the Scarlet Letter is coming in hot. With or without an arrest, the old adage of “where there’s smoke there’s fire” holds true even if you are free from any wrongdoing. Simply, it is never too early for you and your criminal lawyer to get in front of these types of allegations.

As New York criminal defense attorneys familiar and experienced in every stage of a criminal case from the investigatory inception through trial before a judge or jury, one thing that Crotty Saland PC does with regularity is consult with clients to best get them out in front of any allegation of wrongdoing. A recent White Collar case handled by one of our criminal lawyers demonstrates how this strategy can, in the right circumstance, provide closure to a subject or target while freeing them from even the appearance of impropriety.

Before ultimately declining to prosecute our client, prosecutors in the New York County (Manhattan) District Attorney’s Office investigated an alleged fraud that had the appearance of a Grand Larceny Embezzlement and Second Degree Grand Larceny. Because the nature of the accused theft by our client exceeded $50,000, but was less than $1,000,000, our client not only had exposure to a felony, but a sentence of as much as five to fifteen years in prison. In fact, like any type or form of Grand Larceny in New York, the value dictates the charge. In the event there was an arrest, indictment and conviction, New York Penal Law 155.40 would have left our client vulnerable to not only incarceration, but jeopardized our client’s professional licenses and certifications. Generally speaking, even without going to prison, an accountant, lawyer, physician or any similarly situated professional monitored by FINRA or FDIC regulations, answerable to a legal Bar Association, or any other accrediting body would compromise their livelihood with such an arrest.

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Many complaints and accusatory instruments alleging violations of New York Penal Law 155.25 and New York Penal Law 165.40 are “bare bones” and boilerplate. That is, the language is somewhat “plug and play” and generic whereby the item stolen and the value of the property may be changed without substantively altering the paperwork filed in court at your arraignment. Some arrests for Petit Larceny and Fifth Degree Criminal Possession of Stolen Property are processed through a Desk Appearance Ticket (remember, at DAT only shows one charge, but when you appear in court there will likely be more) while others leave you waiting in central booking to see a judge. It is of little relevance where you end up or how you are prosecuted other than one means is more accommodating than the other. Why is it of no consequences? Because irrespective of whether you are charged with shoplifting, theft from an employer, stealing from someone’s home or any other larceny conduct no greater than $1,000, the crime or crimes of PL 155.25 and PL 165.40 remain the same. Moreover, from a legal position, the District Attorney’s Office still has the burden of providing an accused with sufficient notice of the crime or crimes he or she faces and a legally sufficient accusatory instrument so you can prepare a defense to your arrest.

A recent decision by an appellate court addressed the crime of Petit Larceny where a defendant pleaded guilty to PL 155.25 and later challenged the legal sufficiency of the charges. Regardless of the means by which you are arrested for or accused of PL 155.25 and whether it occurred in Manhattan, Brooklyn, Queens or anywhere in New York City or beyond, is not important. The following case is valuable one because it demonstrates the fairly low threshold the prosecution must achieve to move a case forward from arrest to potential trial. When reading this blog and brief entry, keep in mind that legal sufficiency is not the same as and significantly less than the standard required at trial to find guilt beyond a reasonable doubt.

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Maybe it was Sephora in Manhattan or Century 21 elsewhere in New York City. It actually makes no difference if its Macy’s, Bloomingdale’s, Whole Foods or some mom and pop store in Queens, Brooklyn, Bronx, White Plains, Yonkers or any other municipality in New York. The standard, some would argue, is ridiculously low. Heck, you may have put the makeup, sweater or food in your own bag because it was convenient or the store didn’t supply a cart (if being environmentally friend and not using plastics is a crime, then guilty as charged!). On its face it seems like a reasonable thing to do. The reaction of store security, however, was quite the opposite. Reasonable? Not at all. Aggressive, accusatory, intimidating? Absolutely. Being embarrassed and signing paperwork, however, may be the least of your worries. If it is alleged that you stole property – regardless of what it may be worth (if anything!) – expect that you will at a minimum be arrested and issued a Desk Appearance Ticket (DAT in NYC) for either Petit Larceny (PL 155.25) or Fifth Degree Criminal Possession of Stolen Property (PL 165.40). To make matters worse, while the DAT for shoplifting may only reflect one of these charges, upon appearing in court you will have the “honor” of facing both misdemeanor crimes.

With a little lay of the land and a scenario that may very well fit into what you were alleged to have done, the question you likely are asking is, “Why was I arrested and why was I charged with a crime for shoplifting if I didn’t step foot out of the supermarket (fill in the store here)?!” Well, read on for your answer…

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