Most people rightfully think a larceny or theft occurs when they wrongfully and without permission steal or take someone’s property. Usually, but not always, that person refuses to return the property or simply doesn’t tell the victim that he or she took it in the first place. Simply, the rightful owner lost his or her television, mobile phone, car, or good old fashion cash forever. However, in New York, a theft or larceny need not be a permanent taking. In fact, it need not be a taking at all in the common way we think about such acts. According to the New York Penal Law and the plethora of cases that analyze and interpret it (please note the shout out to the “Three Amigos”), a police officer can arrest, District Attorney prosecute and judge or jury convict you of a crime if you fail to return property. How you ask? New York Penal Law 155.05(2)(b) specifically addresses how one can be charged with a Petit Larceny or Grand Larceny Crime in New York when one acquires lost property.
In the State of New York from Manhattan to Buffalo, Brooklyn to Syracuse and Queens to White Plains, the New York Penal Law reigns supreme. While each Judicial Department (there are four) may interpret the law differently, when the Court of Appeals rules, its decision must be followed by all prosecutors, criminal lawyers and judges throughout the Empire State. Regardless of whether you are arrested in New York City or Yonkers, if you are accused of a Grand Larceny or Petit Larceny the law mandates that it occur through one of the statutorily recognized means outlined in New York Penal Law 155.05(2)(a). Charged with PL 155.25, PL 155.30, PL 155.35 or faced with any other arrest for any larceny crime or degree, the wrongful taking must occur by common law larceny by trespassory taking, common law larceny by trick, embezzlement, or obtaining property by false pretenses.
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?
No, there is not a crime of cell phone theft, iPhone stealing or smart phone heist in the New York Penal Law. However, merely because there is no specific statute addressing cell phones, mobile phones, smart phones and other personal devices such as iPads does not mean there is no crime or crimes that occur when one is stolen. On a base level, whenever you steal anything – from a pen or shoelace to a million dollars in cash or a diamond engagement ring – a larceny has occurred. Irrespective of value, the theft is a Petit Larceny and the possession of the property is Criminal Possession of Stolen Property in the Fifth Degree as set forth in New York Penal Law 155.25 and New York Penal Law 165.40 respectively. These offenses are both class “A” misdemeanors.
Putting behind the misdemeanor crimes the NYPD will arrest you for and a District Attorney will prosecute, the following entry will briefly examine some crimes for cell phone theft routinely seen by New York criminal lawyers and defense attorneys throughout New York City District Attorney’s Offices in Manhattan, Queens, Brooklyn and the Bronx as well as other prosecutors’ offices elsewhere in suburban counties such as Westchester, Rockland, Putnam and Dutchess.
On television, the internet, radio and print media, it is far from atypical to hear of a dispute between parties – often time famous or affluent people – whereby one side shuts his or her mouth and the other provides an undisclosed sum of monies. Sounds reasonable enough, right? Heck, if they do that in Hollywood and in the corporate realm, why cant you demand compensation for your silence? You pay me and I promise not to expose any bad thing about you. Taking this belief a step further or at least in another direction, can you advise an employer that if he or she does not provide you some form of property, usually a sum of money, you are going to expose them as frauds? Is this whistle blowing? What if there is or was no fraud? Now does it become Blackmail or Extortion? It would be great if this blog would answer any of the scenarios above, or, for that matter, the question that likely caused you to land on the CrottySaland.Com or NewYorkCriminalLawyerBlog.Com websites, but it does not. Each case is different as are all sets of facts. What doesn’t change, however, is the magnitude of criminal exposure you can face in New York if the path you choose to follow is one of Extortion or Blackmail even if you believed you had some legal and civil right to demand money, property or compensation in return for not exposing an employer, colleague, partner, friend, fling, flame, or subordinate (you get the point).
Most value based theft crimes share the same elements as one another outside of the necessity that the property in question reach a certain amount to raise the level of the offense. For example, Petit Larceny involves property valued at $1,000 or less while First Degree Grand Larceny requires that the property stolen be worth more than $1,000,000. Putting aside Grand Larceny crimes in New York that are item or object specific, stealing a credit card for example is automatically a felony of Fourth Degree Grand Larceny, the underlying elements are generally the same. You can look to NY PL 155.25, NY PL 155.30, NY PL 155.35 or an of the larceny crimes of the New York Penal Law and the common elemental bond is that you are guilty of larceny when you steal property. Taking this analysis one step further, Penal Law 155.05(1) mandates that “[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.”
With these definitions in hand, the question presented by this particular blog is whether or not merely depriving someone of their property is sufficient to constitute a crime of larceny – Petit or Grand. Further, must the taking be permanent, for a long frame time or some other lesser period?
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.
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.
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?