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What is a Theft and Larceny by False Pretenses in New York: NY PL 155.05(2)(a)

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.

As a general premise, when the theory of a prosecution is that a wrongful taking and theft is based in a false pretense, the District Attorney in the county where the case is being prosecuted must establish that the accused secured the property in question by making an intentionally false statement regarding not just any fact, but a material one relied upon by the victim . Further, this victim must have agreed to surrender or turn over the property due to this bogus promise. See People v. Drake, 61 N.Y.2d 359 (1984). There, the Court of Appeals (again, New York’s highest level court), held that when an employee of New York State submitted fraudulent time cards reflecting that he was on jury duty for ten days when he in fact served for only four days, the defendant made a false representation as to whether he should be paid for six days of absences and the State of New York relied on this deceit when it paid him. Simply, this was a wrongful taking, aka, a larceny, by false pretense

The above scenario and case seems very clear. However, what if we use a different example? Let’s say that your contractor knowingly misrepresents his ability to complete a job constructing a new home. You pay him. He provides you invoices reflecting the purchasing of materials and actual completed work. When you go to look at the home he has been building, it turns out your contractor never purchased materials nor started construction. Here, there would likely by a larceny by false pretenses if he knew at the time time he was knowingly lying when he provided the fake invoices and representations. Where the criminal elements may not exist and differ is a very similar, but distinct scenario. Changing this slightly, if you paid your contractor, he provided you receipt of payment and the purpose of the payment was for materials and work, but the materials were only partially purchased or the work was never done, there may be a civil breach and not a criminal infraction in the event he made good faith efforts to do as he stated and it was always his intention to provide what he promised.

Depending on the facts and evidence (and frankly, the skills of a criminal defense attorney to advocate in your defense), what if the contractor had the intent to make the purchases and commence construction when he received your money? What if the materials cost significantly more than he anticipated or the workers walked off the job? The monies where then used to compensate for the higher costs and labor was doubled? Now, your contractor in good faith attempted to provide his end of the bargain, but failed to do so. There was never an intent for a wrongful taking. Although these two scenarios described sound almost identical, merely because a “taker” failed to comply with his or her end of a deal does not automatically make his or her actions criminal. Intent remains a critical piece when determining whether the taking was an honest one or based in false pretenses.

Unfortunately, every case involving a false pretense is not always so clear. You may have wronged another party, but you did so unintentionally and not in bad faith. There may be consequences for your failures, but criminal prosecution should not always be one of them.

Read about the crimes of Petit Larceny, various degrees of Grand Larceny and all New York theft crimes. Understand the difference between larceny by trick, trespassory taking, extortion and false pretense. Both this blog and NewYorkTheftAndLarcenyLawyers.Com are a great resource to start you off on the trajectory to better understand the law and find the criminal lawyer who can best protect your rights.

Saland Law PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Saland Law PC represent clients throughout the New York City region.



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