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To Deprive, or Not to Deprive, that is the Larcenous Question: A Deeper Dive into Larceny and Intent

While many instances of theft seem simple enough, there is actually much more going on in any given theft from a legal point of view whether you are charged with any degree of Grand Larceny or Petit Larceny. Under New York law, and as your criminal defense attorney can further explain, these offenses largely come down to a person’s intent. As a given case or scenario gets more and more complicated, a person’s intent becomes more and more difficult to discern from their actions. This is especially apparent in so-called  New York White Collar crimes or allegations of criminal offenses in the context of banking or financial transactions.

One such seminal case was People v. Jennings, 69 N.Y.2d 103 (1986), decided by the Court of Appeals, New York’s highest court. As a preliminary matter, and relevant to this case, the Penal Law defines a larceny, or “stealing property,” as basically when a person has the intent to deprive another of the property and he or she wrongfully takes, obtains, or withholds that property. Deprive, under the law, means to withhold the property either permanently, for an extended period of time, or, critically to White Collar cases, under such circumstances that the major portion of its economic value or benefit is lost.

The Court of Appeals in Jennings was called upon to focus on this last definition of “deprive” in deciding whether the defendant, Sentry, a corporation that picks up and transports large amounts of money for banks, had deprived Chemical Bank of the economic value of the money it was transporting by investing that money for short periods of time, usually a couple of days, and keeping the profits of those short term investments. This kind of a scenario may seem difficult for the average person to relate to, but this analysis of “intent” applies just as much to the person who walked into the Duane Reade and took something off the shelf as it does to a huge international corporation.

In Jennings, Chemical Bank and Sentry entered into an agreement under which Sentry would pick up “bulk deposits” from Chemical’s offices, count the money, and deliver it within 72 hours to Chemical’s account at the Federal Reserve Bank. During this 72 hour period, Sentry would make short term, profitable investments. The District Attorney argued that this amounted to appropriating a portion of the economic benefit, and that those actions demonstrated an intent to deprive Chemical Bank of the “economic value or benefit” of the money itself – the interest that the money was capable of generating.

The Court disagreed with this assessment of the situation, and held that these discrete, short term investments in and of themselves did not show that Sentry had the intent to use Chemical Bank’s money to extract the major economic value or benefit of the money, even though this was an unauthorized use of the property. In essence, there was no “larcenous intent” or intent to steal in that scenario.

You may ask yourself, if they invest this money, make it back, and then deposit what they made back, hasn’t Sentry permanently deprived Chemical Bank of the actual money that was given to them. While this is literally true, the Court of Appeals held that money is interchangeable with other money, and it doesn’t matter if the literal same bills were later deposited in Chemical’s account or not. You may also ask yourself, what if they lost the money when they invested it, or what if they lost it in the various transfers that took place to make the investments and returns happen? This, the Court held, was far to speculative to establish a criminal offense through this kind of “risk of loss” analysis.

At the end of the day, we all assess people’s thoughts and intent primarily through their actions. Those actions are not always easy to confidently ascertain, whether it’s a person walking into a Duane Reade, taking something off the shelf, and putting it in their pocket, or a corporation investing a bank’s money, returning it a few days later, and keeping the profits. The same holds true for you, if you are accused of Embezzlement or some other fraud type allegation involving larceny. No matter the allegation it is critical that you and your attorney examine the evidence to ascertain your best defense whether it is one based in law, fact, mitigation or a combination of any of these strategies.

To learn more about White Collar crimes including larceny crimes and theft charges, follow the provided links.

Saland Law PC is a New York larceny, theft and criminal defense law firm founded by two former Manhattan prosecutors.

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