When we think about theft and larceny in New York, it seems reasonable to assume that the dollar value of a stolen item will be more relevant to the crime than the actual item itself. For example, if you are charged with Grand Larceny by Embezzlement, the courts are not concerned with whether you stole $25,000 in cash, credit card advances or treasuries. Similarly, if you are caught shoplifting from Macys or Bloomingdales, it makes no difference whether you stole a dress, skirt, or ten pairs of slacks. What is relevant to the charged of Grand Larceny is the value of the property alleged to have been stolen.??
As any seasoned New York criminal defense attorney will tell you, however, the type of item stolen, rather than the item’s value, can sometimes play a significant role in the charge a defendant faces. ?If the item in question fits within certain categories, a defendant will automatically face a felony charge, regardless of the item’s value. These categories, listed under New York Penal Law 155.30, include: public records, secret scientific material, credit/debit cards, firearms, motor vehicles, and religious items, among others.
Under New York’s Grand larceny laws, one of the thefts mentioned above, theft of secret scientific material, is considered Grand Larceny in the 4th Degree, a Class E felony (N.Y.Penal Law 155.30). ?Similarly, Unlawful Use of Secret Scientific Material, which might merely entail unauthorized duplication, is also a Class E felony (N.Y. Penal Law 165.07). If convicted of either offense, a defendant will potentially face up to four years of incarceration.
The reason these two offenses are addressed together in a blog analyzing New York theft crimes is due to the following question: What, exactly, is “scientific material” for the purpose of the Grand Larceny statute? New York Penal Law 155.00 defines “scientific material” as, “any. . .article” evidencing a “scientific or technical process, invention, or formula.” The actual meaning of this somewhat vague definition, and whether computer software falls within it, is a question that was answered by the Court in People v. Russo.
In Russo, prosecutors alleged that the defendant, “. . .cause(d) a tangible reproduction of secret scientific material, consisting of a computer program …” belonging to Stony Brook University Hospital to be sold to a rival hospital. The defendant did not deprive Stony Brook University Hospital of using the program, rather, he merely made an unauthorized copy of it. Prosecutors charged him with a violation of NY PL 165.07, Unlawful Use of Secret Scientific Material. In this instance, the defendant did not argue that he hadn’t made a copy of the software, or even that the software wasn’t secret; rather, he argued that “computer software” did not qualify as “scientific material,” as defined by the statute. Therefore, he could not have committed the crime for which he was charged. Again, although not charged with Grand Larceny based on secret and scientific material, the issue and question are directly the same.
In considering the defendant’s argument, the Court sought to determine whether a computer program qualifies as “scientific material.” Looking to the statute, the Court explained that “scientific material” is material that is the product of a “scientific or technical process, invention or formula.” Referencing a dictionary for the commonly understood meaning of these terms, the Court explained that “science” is “an activity that appears to require study and method,” and “technical” is, “pertaining to, or derived from technique” or “specialized.” The Court found that because a computer program is the product of “specialized knowledge” and “study” on the part of its creators, it can be considered both scientific and technical.
Next, the Court explained that an “invention” is “a new device, method, or process developed from study and experimentation,” a “process” is, “a system of operations in the production of something;” and a “formula” is, “a method of doing or treating something that relies on an established, uncontroversial model or approach.” A computer program does not exist until written by its programmers. It directs a computer to perform specific steps of a procedure that will produce a desired result. The program accomplishes this by following an “established model or approach.” Therefore, a computer program is a process, invention, and formula. In rejecting the defendant’s argument, the Court stated that the statute made its purpose clear, and gave “unequivocal warning” to citizens that it was to be followed, even with regard to computer programs.
To sum up, a computer program may not be the formula to cholesterol lowering lipitor or that extra kick to a Dr. Pepper soda, but is still potentially scientific material whether it is applied to a Grand Larceny or Unlawful Use of Secret Scientific Material. Whether it is “secret,” however, is a question likely based in fact (as opposed to law) and the subject of an entirely different blog entry.
Saland Law PC is a New York criminal defense firm founded by two former Manhattan Assistant District Attorneys. The New York criminal lawyers at Saland Law PC represent the accused throughout New York City and the surrounding suburbs. To learn more about the crimes addressed here or other statutes of the New York Penal Law, follow the links above or below.