In a previous blog entry I began a series in which we tackled the important and sometimes complicated issue of determining the value of stolen goods in a New York Grand Larceny or Criminal Possession of Stolen Property criminal trial. Charges of Grand Larceny and Criminal Possession of Stolen Property based on the value of the alleged “ill gotten gains” can come in many different forms, throughout the boroughs of New York City (Manhattan, Brooklyn Bronx and Queens) as well as in the suburban counties (like Rockland and Westchester). That is, “property” is an all-inclusive title, which encompasses any good that has a value- a television, credit card, clothing or even a utility. For New York criminal defense attorneys and their clients, successfully challenging the value of property can make the difference between Grand Larceny in the Fourth Degree (NY P.L. 155.30), Grand Larceny in the Third Degree (NY P.L. 155.35), Grand Larceny in the Second Degree (NY P.L. 155.40) and Grand Larceny in the First Degree (NY P.L. 155.42). If the circumstance is right, it can also make the difference between being charged with a felony or a misdemeanor crime.
In the first entry of this series helping non-criminal lawyers understand “value,” we laid out the general rule that “value” means the market value of the property at the time and place of the crime. In this blog entry, I’d like to discuss how the courts determine the value of used goods, which tend to have a less clearly defined market value than newer property. Pursuant to New York Penal Law 155.20(1), in a Grand Larceny trial where the market value of the stolen property cannot be determined, the “replacement cost” of the property may be used to ascertain the value. For instance, in People v. Vientos, 79 N.Y.2d 771 (1991), the defendants were apprehended by the police while in possession of stolen computer equipment. What complicated the matter was that the brand (Commodore) of computer equipment in question had no resale market value (1984 is calling and they want their Commodore 64 back!). The parts were used and were no longer being sold in any stores. So how did the prosecution value the goods? At trial an expert testified as to the cost it would take to replace the stolen computer equipment. The “replacement cost” would be what it took for the victim to have a whole computer product again. The court went on to say that the prosecution did not have to show that there was a value on the black market for the equipment (i.e. what you could resell the parts for illegally). The expert’s alternative method of valuation was valid because he opined as to the replacement cost.
On its face, “replacement cost” seems to create an unfair and harsh standard for the defendants. We all know that if I buy a new computer today, in one year’s time that computer equipment will significantly depreciate in value (fancy legalese for lowered in cost). Thus, a “replacement cost” would be higher than an actual value, which unfairly leaves the defendant exposed to harsher penalties. After all, should a stolen computer from a defunct company that still works have a replacement cost of a new or gently used Mac?
Fortunately, the law accounts for the concept of depreciation. People v. Bayusik, 83 N.Y.2d 774 (1994), makes clear that when determining replacement cost, the item’s value must be adjusted to take into consideration the actual condition of the item and the extent of the damage. This sound principle comes from bizarre facts. In Bayusik the defendants stole two gravestones which had no ascertainable market value. The original valuation by the prosecution of the gravestones’ replacement cost failed to take into account that one of the gravestones was broken at the time of theft. Accordingly, on appeal the court adjusted the price to more accurately reflect the condition of the gravestones, not what new similar gravestones would cost.
Another common area in Grand Larceny cases where the market value is unclear and the “replacement cost” standard is utilized, is with the theft of used/old automobiles. Cars, much like computers, depreciate in value once you take them off the lot (I swear my Ford Pinto has held its value!). Again, because the market valuation must be determined from the time and place where it was stolen, the courts have to take into account the condition of the car and what it would cost to replace it in that condition. People v. Alicea, 25 N.Y.2d 685 (1969), established a model for determining the value of a used, older model automobile. There, the defendant was convicted of Grand Larceny in the First degree (NY P.L. 155.42), but appealed the valuation made by the lower court. The Prosecution had used the “National Market Reports Redbook” which listed wholesale values for used cars of specified make, model and year. The court ruled that this was an average value, and did not adequately take into account the condition of the stolen vehicle at the time of theft. Still they stated that, “given a proper foundation…such reports may be admissible at trial as supportive, and in some cases sufficient evidence of value.”
In all these instances the key is that there is no defined market value. Unlike a new article of designer clothing, a used computer or an old car must be valued differently. Thus, New York criminal defense attorneys, prosecutors and judges will (or should) look to the “replacement cost” of that particular stolen property considering the time, place stolen and condition of the goods.
To further educate yourself on valuation in a New York Criminal Possession of Stolen Property or Grand Larceny case, merely search this blog. The links above and below to specific crimes and other blogs/websites contain significant information on white collar theft and larceny crimes in New York ranging from analysis of statutes to legal decisions impacting the criminal law.
Established by two former Manhattan Assistant District Attorneys, Crotty Saland PC is a New York criminal defense firm representing individuals who are the targets of criminal investigations or who have been arrested for white collar theft crimes in the New York City region.