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Circumstantial Proof: Can New York Prosecutors Sustain Your Petit Larceny or Criminal Possession of Stolen Property Arrest

While Grand Larceny crimes are vastly more serious than their misdemeanor Petit Larceny counterparts, the theft cases that fill the dockets of New York Criminal Courts and the calendars of New York criminal lawyers – from Manhattan, to Queens, out to Westchester and Rockland Counties- usually involve violations of the “lesser” NY PL 155.25. In this blog I want to examine a Kings (Brooklyn) County Criminal case- People v. McDuffie, 2011 KNO74543, NYLJ 12025314774, at *1 (Crim., KI, Decided October 27, 2011)- which illustrates the level of proof required to properly charge (and convict) a defendant of Petit Larceny (New York Penal Law 155.25) and Criminal Possession of Stolen Property in the Fifth Degree (New York Penal Law 165.40). To clarify, pursuant to NY PL 155.25, a person is guilty of Petit Larceny when he or she steals property (any property) with a value of one thousand dollars or less. Additionally, pursuant to NY PL 165.40, a person is guilty of Criminal Possession of Stolen Property in the Fifth Degree when he or she knowingly possess stolen property with the intent to benefit him or herself. The value of the property that sets the particular degree of the crime is the same for both offenses.

Before proceeding it is worth noting that People v. McDuffie is also interesting because it involves a bit of criminal procedure law- the basics of which are worth understanding. The defendant here was not appealing a conviction (meaning post plea or after trial). Rather, the defendant made a motion to dismiss the case as “facially insufficient.” In other words, the defendant argued that the Brooklyn District Attorney’s Office did not have the proper proof to bring these charges against him in the first place and they were not properly set forth in the “four counters” of the criminal complaint. In order to properly file charges against a defendant the prosecution must show non-hearsay facts (generally first hand observations by witnesses) that establish each and every element of the offense charged. While the burden is and remains on the shoulders of the prosecution, the proof is much lower to initially bring charges against a defendant as opposed to supporting a guilty conviction at trial (hence proving facial insufficiency is a much more arduous task for the defense because at this stage in the process there is no “beyond a reasonable doubt”). Therefore, in McDuffie the People had to show that their complaint (called the “information”) was enough to establish a Prima Facie (on the face of it) case–meaning the facts point to guilt.

With that bit of Criminal Procedure 101 out of the way, what proof did the prosecution present in People v. McDuffie to sufficiently charge the defendant (again NOT convict) of Petit Larceny and Criminal Possession of Stolen Property in the Fifth Degree? Unlike a common shoplifting arrest in New York where a store security guard affirms that he observed the taking or concealing of property firsthand, the McDuffie case was circumstantial in nature. Here, the prosecution presented statements from the complainant who allegedly saw the defendant inside his truck. Upon his return to the truck the complainant discovered that $25 was missing. The complainant also saw more money inside of the defendant’s jacket pocket. McDuffie argued that merely alleging someone is missing money and that another individual in the area has money is not sufficient proof even to establish a prima facie case (this lesser burden). He further objected that the complainant did not allege that he had no permission to be inside the truck, nor did it state that the complainant had actually seen him taking the money.

Despite McDuffie’s contention, the court disagreed that the information at this stage of the process was insufficient. The fact that the defendant was seen inside the complainant’s truck and that the money was missing from the truck, was enough to establish a charge of Petit Larceny. The court further stated: “there is no need for [McDuffie] to have been observed actually taking the money to be charged with Petit Larceny.” Therefore, the defendant’s motion to dismiss for facial insufficiency was denied.

There are a couple of lessons to take away from this case. First, note the clear difference in the level of proof required to charge a defendant with a crime versus the substantial proof required to show that a defendant is guilty of a crime beyond a reasonable doubt. The other lesson gleaned from McDuffie is that circumstantial evidence may be sufficient to charge a defendant with Petit Larceny pursuant to NY PL 155.25. A witness does not have to actually see you stealing the property. It may be enough just to show that you had access to the property (in this case McDuffie was in the truck) and that the property went missing (the $25 dollars was no longer in the truck). Of course, if you have an experienced NY criminal defense attorney he or she may be able to raise enough of a reasonable doubt at a trial to or with a prosecutor prior to that time to either obtain an acquittal or work out a more favorable disposition.

To learn more about New York theft and larceny laws such as those involving NY PL 155.25 and NY PL 165.40, follow the highlighted links above to Saland Law PC’s NewYorkTheftAndLarcenyLawyers.Com website. There you will find extensive information on these crimes and related statutes. Additional information on New York white collar theft crimes is also available on the Saland Law PC main website (, the NewYorkCriminalLawyerBlog.Com and NYDeskAppearanceTicket.Com. Other than the Desk Appearance Ticket website which only has misdemeanor information, the other resources have analysis of both felony and misdemeanor theft crimes, statutes, legal decisions, collateral consequences and sentencing guidelines.

Established in 2008 by two former Manhattan prosecutors who served a combined thirteen years under Robert Morgenthau, Saland Law PC is a New York City based criminal defense firm. Our New York criminal attorneys represent those accused of all white collar offenses throughout New York City and the surrounding counties.

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