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Queens Criminal Court: “Stealing” and Ejaculating on Cell Phone Cover Not Enough to Sustain Grand Larceny Indictment

As set forth in New York Penal Law 155.05(1), the hallmark of any arrest involving misdemeanor Petit Larceny or felony Grand Larceny is that no matter the taking or the nature of the property involved, an accused must also have the intent to deprive another person of that property or, alternatively, appropriate the same to him or herself. In non-legal terms, if an accused takes another person’s wallet from their hand, $100 in cash from their pocket, or diamond encrusted tiara from their head and instead of running off to squirrel it away or sell it, for example, he or she merely tosses it on the ground and walks away, prosecutors may not prove a larceny related arrest beyond a reasonable doubt. While clearly an issue of fact as to intent, before any judge or jury can render a verdict, the District Attorney, aka, the “People,” must establish the element of either “deprive” or “appropriate” as defined in Penal Law 155.00. As demonstrated in the below case, albeit an extreme and grotesque example of a moral failing, failure to do so can be fatal to any larceny offense.

Before addressing the legal definitions of “deprive” and “appropriate,” let’s take a moment to set the stage to better, and unfortunately so, visualize the necessity of one of these elements in any larceny related crime. In a decision dated September 3, 2019, a Queens County Supreme Court Judge dismissed one count of Fourth Degree Grand Larceny, Penal Law 155.30(5), despite some fairly heinous accusations. In People v. Rodriguez, the evidence before the Grand Jury established that that the defendant called the victim over to his car where he was seated before asking the complainant for directions to a hospital (generally considered a reasonable inquiry). Upon graciously offering assistance to a motorist in need, the victim quickly regretted her goodwill. Although it is difficult to comprehend how long it took this play to develop, the defendant allegedly took the complainant’s phone, put it on his lap under a towel, and then proceeded to ejaculate on the phone case (yes, you read that correctly). Graciously, the defendant then gave the phone, with the case still attached, back to the victim. Likely a bit disturbed if not vilely ill, the complainant tossed the phone case away after questioning why she didn’t tell the defendant to use Ways or Google Maps.

Perhaps because the incident was so “reprehensible,” as the Court stated it in its decision, the Queens County District Attorney’s Office sought and obtained an indictment for “stealing” the phone directly from the hand of the complainant, thus making the offense a felony. A little inside baseball, Penal Law 155.30(4), the “pickpocket” statute, elevates a misdemeanor to a felony whenever property is taken from another person irrespective of its value. Unfortunately for prosecutors, the Court deemed the crime to be an overreach. The District Attorney did not establish that the defendant deprived or permanently withheld the property or did so for an extended period of time thereby diminishing the economic value of the cell phone case. Further, the People did not prove the defendant disposed of the property in manner that made it likely to be unrecoverable by the owner. Similarly, the evidence did not establish that the defendant appropriated the cell phone case to himself permanently or for such an extended period of time as to acquire the major portion of its economic value or benefit.

Its clear that the prosecution’s theory was that the defendant, through his actions, withheld the phone case and deprived the victim of the major portion of its economic value or the benefit of owning the phone case even if the Court disagreed. While this may seem like a strange or tortured line of reasoning, it’s certainly plausible on its face that taking someone’s property and subjecting it to that kind of romance effectively deprives the victim of that property even if not literally so. However, the Court, in its decision, looked to the defendant’s intent as manifested through his actual actions.  In so doing, the Court reasoned that the defendant’s behavior did not sufficiently establish a larcenous intent, desire to deprive the complainant of her property, or an intent to steal property from another person. Instead, it appeared the defendant’s actions were motivated by sexual gratification – and possibly an insatiable appetite for Apple’s newest technology.

Make no mistake. The defendant behaved in a depraved and sick manner and should be punished accordingly. Nonetheless, the District Attorney did not establish the elements of either “deprive” or “appropriate.” While it may be tempting for a prosecutor to stretch the law and bring the most serious and severe charges possible in the hopes that they will be able to force through the greatest possible consequences for particular defendant, and some might applaud them for doing so, law enforcement must still adhere to the letter of the law.

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Founded by two former Manhattan prosecutors, Saland Law PC is a New York criminal defense firm representing clients throughout the State and the New York City and Hudson Valley regions.

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