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Possessing Stolen Property that was Never Stolen in the First Place: Criminal Possession of Stolen Property or No Crime at All

Possessing stolen property in New York is a crime. Its likely surprising to no one – from your second cousin to your criminal defense attorney – that in addition to the theft of property, Petit Larceny or Grand Larceny, when you knowingly possess stolen property you have committed either a misdemeanor or a felony. Without breaking out each and every subsection of Criminal Possession of Stolen Property where certain types of property equate to specific felony crimes, the routine way the NYPD, local or county police, and the District Attorney determine the applicable degree of a Criminal Possession of Stolen Property arrest charge is value based. That means if it the property, no matter what it may be, is less than $1,000.00 it is a misdemeanor and if the value is greater than $1,000.00, $3,000.00, $50,000.00 or $1 million, then the crime is a felony that escalates from an “E” to a “B” respectively.

Well, the above is all great and good, but what if the property you are arrested for possessing was not stolen in the first place? Does it make a difference if you believed it was stolen even though it was not? What about if in fact it was stolen property, but you believed it was not? Why is this worthy of discussion? Because as you can consult with your criminal defense lawyer, should you be charged with any degree – misdemeanor or felony – of Criminal Possession of Stolen property – PL 165.40, PL 165.45, PL 165.50, PL 165.52 or PL 165.54 – and you are either unaware the property was stolen or it in fact was not stolen, then you have a defense to this set of crimes.

In People v. Zaborski, 59 NY2d 863 (1983), the defendant was under investigation by the police after they believed he was fencing goods. In order to catch him “red handed”, the police set up a sting where they sent an undercover officer into the defendant’s second-hand goods store to sell previously stolen items from a burglary that had subsequently been recovered by the police. The defendant purchased these goods believing they were stolen. Fairly straight forward, the question left to the appellate court, and ultimately the Court of Appeals, was whether it was legally impossible for a defendant to possess stolen property that was in fact not stolen despite his or her belief that it was stolen? Simply, the Court of Appeals, New York’s highest court, said that an accused may be convicted of a crime, but not a completed one. Practically speaking, a judge or jury can find a defendant guilty of attempting to possess stolen property because that was his or her intent. Where the property in question is not actually stolen, then the crime is an attempt. Here, that crime is Attempted Criminal Possession of Stolen Property. Where the value, for example, was $1,500.00, the crime committed would be 110/165.45. “110”, the code for an attempt, along with the felony crime of Fourth Degree Criminal Possession of Stolen Property, 165.45, is not a completed offense, but Attempted Fourth Degree Criminal Possession of Stolen Property. Where the actual PL 165.45 is an “E” felony punishable by up to four years in prison, when the crime is an attempt the offense is reduced one level and in this case becomes an “A” misdemeanor carrying a sentence of up to one year in jail.

It is worth noting that in this particular case even though the goods in question were at one time stolen, “upon their recovery by police they lost their taint which thereby made it legally impossible for defendant to possess stolen property. It is irrelevant that, at the time of the sale to defendant, the true owners of the property had not been located; from the time of recovery, the police were, in effect, agents of the rightful owners holding the property on their behalf (see Penal Law, 450.10).”

In short, if you are arrested or indicted for any degree of Criminal Possession of Stolen Property if the goods in question are not stolen or there is evidence you were unaware of their stolen nature, then you may have a defense to at least lower the crime you face or potentially secure an even better resolution.

To better understand the nuances of theft and larceny laws in New York, including Criminal Possession of Stolen Property, examine this blog, the NewYorkCriminalLawyerBlog.Com or the websites listed below.

Saland Law PC is a New York criminal defense law practice representing clients in Criminal Possession of Stolen Property and related white collar crimes both in New York City and in many suburban towns and counties.


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