New York Theft and Larceny Lawyers Blog

Is Asportation (the Moving / Removing of Property) a Necessary Element of a New York Petit Larceny or Grand Larceny Shoplifting Arrest?

Sat, 12 May 2012 06:01:44 -0500

If you take a skirt, shoes or even groceries without paying from H & M, Saks Fifth Avenue or Whole Foods respectively, well, then, you must have committed a theft. Clearly, if you walked out of the store concealing the property or just without paying you are going to get arrested for Petit Larceny or Criminal Possession of Stolen Property, right? Well, what about if you never leave the store? What if the store security guard at Macys or Century 21 just tries to stop you and have you arrested before you ever even approached the exit? The police have come, you are embarrassed and now to make matters worse, you were given a Desk Appearance Ticket or DAT. Simply put, is removing the property from the store a necessary element of either Petit Larceny (New York Penal Law 155.25) or Criminal Possession of Stolen Property in the Fifth Degree (New York Penal Law 165.40)? And the answer is...

Asportation is the general concept of moving property from one place to another. In the context of NY PL 155.25 cases involving shoplifting, for example, this asportation idea is often misunderstood by those who are not criminal defense attorneys (that would be the vast majority of people). To better understand this concept, as well as to answer the question posed in the first paragraph, let's review a relatively recent decision out of Westchester County.

In People v. Doreen Hye, 11-0312, NYLJ 1202535252217, at *1 (City, WE, Decided December 5, 2011), an accused shoplifter sought dismissal of her criminal case on two grounds. The one relevant to this blog entry was that there was a lack of asportation (the removing or moving of property). Before leaving the store, the defendant placed over two thousand dollars worth of property into a cardboard box, The cardboard box originally contained an item valued at only $36.90. The defendant paid for what appeared to be an item worth only $36.90, but instead was a box containing much more. Before exiting, the defendant was stopped by security and ultimately arrested.

Hye's counsel argued that if the defendant never left the store with the property and if asportation is part of a shoplifting crime pursuant to NY PL 155.25, Petit Larceny, then the case must be dismissed. While the attorney for the alleged shoplifter addressed an interesting point (I am often asked, "but I did not leave store X, how can the police arrest me?"), the court firmly and directly rejected it. Citing People v. Olivo, a case analyzed in our sister blog at NewYorkCriminalLawyerBlog.Com, the court found that there is no statutory requirement of asportation for the crime of larceny. Taking it one step further, the court stated that "[t]he fact of whether or not the defendant needs to physically leave the store to satisfy the elements of Petit Larceny is a factual issue to be determined at trial." In such a case, as addressed in Olivo, the issue is whether or not the alleged shoplifter possessed the property in manner wholly inconsistent with the rights of the property or store owner. As such, while asportation may be a factor in determining whether or not one's actions where wholly inconsistent with the rights of the property owner, it is not essential.

Although stashing thousands of dollars worth of property in a box for an item worth less than $50 and then only paying that nominal amount is arguably a common sense and clear example of theft, most cases are not so obvious. Maybe you were talking on the phone and placed the linens in your purse. Maybe the store does not provide shopping carts or you decided to use your backpack. Is that "wholly inconsistent?" Obviously, each case, allegation, DAT and arrest for shoplifting - NY PL 155.25 or NY PL 165.40 - involves a unique set of facts. Whether you have a strong argument in your favor or you decide the best defense is just to mitigate your conduct, do yourself a favor. Speak with your criminal lawyer. Determine what cases - Hye, Olivo or any other relevant decision - can be used to fortify your defense and move forward to put that defense into action.

To learn more about New York shoplifting crimes as well as other theft and larceny laws, review the respective links above and follow the links below. Not only do the NewYorkTheftAndLarcenyLawyers.Com website and blog contain a significant amount legal analysis, but a search for information on these crimes at CrottySaland.Com and the NewYorkCriminalLawyerBlog.Com will provide much more.

Crotty Saland PC is a New York criminal defense firm that has successfully represented clients in shoplifting cases involving thefts below $100 to those in the multiple thousands of dollars. While each case is unique and prior results cannot guarantee future outcomes, the New York criminal defense attorneys and former Manhattan prosecutors at Crotty Saland PC diligently represent clients in New York City and many of the surrounding suburbs.

When Taking Property of Another May Not be Stealing: Understanding Petit Larceny & New York Penal Law 155.25

Tue, 08 May 2012 06:55:02 -0500

"Stealing" is a term that we would all likely define in a similar way. Whether it is a shoplifting from Macys, Bloomingdales or Century 21 or it is a theft of a briefcase from a car or subway platform, the New York criminal law requires that certain elements be met. Assuming your shoplift or theft is equal to or less than $1,000 in value, the charge you will face through a Desk Appearance Ticket or a "regular" arrest will be either Petit Larceny (New York Penal Law 155.25) or Criminal Possession of Stolen Property in the Fifth Degree (New York Penal Law 165.40). Both "A" misdemeanors, NY PL 155.25 and NY PL 165.40 are punishable by one year in jail.

Obviously, before throwing your hands up in the air and surrendering to the consequences of an alleged shoplifting or theft arrest, you should consult with a New York criminal defense attorney to identify what defenses you have in terms of challenging the evidence or mitigating your conduct. Assuming it is applicable to the allegations in your arrest for either Petit Larceny or Criminal Possession of Stolen Property in the Fifth Degree, one defense may be to ask a court to dismiss the charges against you because the complaint is not sufficient. In other words, prosecutors have not satisfied the elements of the crimes in the paper filed with the court that contains the criminal accusation. Depending on the circumstances, the following case may be a weapon you and your lawyer utilize for your defense. If nothing else, the case below will help an individual unfamiliar with the legal process in criminal court understand that process a little better.

In People v. Gonzalez, 2011NY031743, prosecutors charged the defendant with multiple crimes including NY PL 155.25 and NY PL 165.40 in a sting operation after police left a bag outside a store and the defendant walked off with it. More specifically, the allegation were drafted in a misdemeanor information (a legal complaint alleging crimes against the accused) as follows:

Police Officer David Bernstein states that he is informed by Sergeant David Cuce ("informant") that informant observed Police officer Joseph Nebbia place a bag containing a laptop worth approximately $110 on the sidewalk in front of 152 Ludlow Street, New York, New York on April 30, 2011 at about 00:50 hours. PO Bernstein is further informed by informant that informant observed the defendant:

(i) walk over to the bag, pick it up and walk away; (ii) hold the bag close to his body; (iii) walk by a marked police car without attempting to return said property; and (iv) open said bag and look inside.

PO Bernstein is further informed by informant that informant stopped defendant and informant recovered the bag containing the laptop.

Arguing that the information above was not legally sufficient, the defendant argued:

"Under PL []155.25, '[a] person is guilty of petit larceny when he steals property.' 'A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof' (PL []155.05 [1]). Further, a person 'appropriates' the property of another by 'exercis[ing] control over it...permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit' (PL []155.00 [4])."

In agreeing with the defendant that the information was not legally sufficient, the court indicated there was no evidence or allegation in the complaint that established the defendant's intent to deprive anyone of the bag and lap top. In other words, the criminal information was just too bare bones. As an example, the court noted there was no statement as to how long the defendant possessed the bag after picking it up, what markings the bag had that indicated it belonged to another person or whether the bag was just trashed or discarded. The court further noted that there was no factual support in the complaint meeting the requirements of NY PL 155.00(4) establishing the defendant's intent to permanently deprive anyone of this property.

The court's analysis led it to one conclusion. The case against the defendant should be dismissed. For the reasons the information failed to satisfy the elements of NY PL 155.25, it also failed to establish the same for NY PL 165.40.

As noted above, this case may or may not be relevant to your arrest or Desk Appearance Ticket (DAT) in New York for an alleged violation of Petit Larceny or Criminal Possession of Stolen Property.The principle behind it, however, will always be useful. That is, in addition to merely attempting to mitigate conduct, an examination of any criminal complaint against you may be equally or an even more fruitful defense. If prosecutors cannot meet their burden and your attorney or lawyer can establish their inability to do so, your case may be dismissed. Remember, an allegation is never proof beyond a reasonable doubt.

To learn more about New York's theft and larceny crimes from misdemeanor to felony offenses, review the links above to the NewYorkTheftAndLarcenyLawyers.Com website and blog or the websites and blogs below.

A New York criminal defense practice established by two former Manhattan prosecutors, the New York criminal defense attorneys at Crotty Saland PC represent clients arrested, investigated and indicted for all larceny and theft crimes in the New York City region.

Bookkeeper for Brooklyn Public Administrator Allegedly Steals $2.6 Million from the Estates of the Dead

Fri, 04 May 2012 15:57:34 -0500

Manhattan District Attorney Cyrus Vance, Jr.'s League of Extraordinary Gentlemen (and women) has once again stuck a blow against The Fantom's ranks. According to a press release, Richard Paul, the bookkeeper for the Kings County Public Administrator's Office, stole "more than $2.6 million from the estates of individuals who died without a will by manipulating the agency's check writing system." In addition to Paul, DA Vance obtained an indictment from a New York County Grand Jury charging Taryn Miller, Ransel Sangster and George Bethea for their involvement in this alleged theft and fraud scheme. The arrest charges for Paul, Miller, Sangster and Bethea are all tied to Grand Larceny.

As a bookkeeper in the Public Administrators Office, it is believed that Paul "cooked the books" of an agency that has a responsibility to oversee the estates of those who died intestate. One dies intestate when one dies without a will. In cases such as these where there is no family to claim the estate of the deceased, the Public Administrator maintains the deceased's estate. All of the money is ultimately transferred to the New York City Department of Finance. It is alleged by prosecutors that Paul, whose responsibility it was to make the transfers to the New York City Department of Finance, transferred money to confidants and friends from August 2008 to November 2011.

DA Vance asserts that Miller was Paul's cohort by not just receiving some of the re-routed monies, but by facilitating the scheme. Sangster is believed to have received a forged Public Administrator's check valued at almost $400,000. Prosecutors further contend that Sangster also received a check from Paul in the amount of $200,000. Bethea, who is Miller's husband, had his hand in the cookie jar as well if what prosecutors claim is true. It is alleged that Bethea received $150,000 as part of this fraud as well.

Paul and Miller both face the most serious New York theft and larceny crime on the books. Charged with New York Penal Law 155.42, Grand Larceny in the First Degree, these defendants face a minimum of one to three years in prison if they are convicted of a crime. Even worse, a judge can sentence each one of them up to eight and one third to twenty-five years in state prison. Although far from in the clear, Bethea and Sangster face a slightly less serious crime (it is a relative thing, of course). These two defendants are charged with Grand Larceny in the Second Degree, New York Penal Law 155.40. As such, the defendants do not face a minimum mandatory sentence, but as great as five to fifteen years in state prison.

The arrests and indictments of Paul, Bethea, Sangster and Miller should send a notice to anyone who might consider white collar criminal activity in Manhattan. Following in Robert Morgenthau's footsteps, DA Vance is using the "long arm" of the law to combat white collar crime even if those who are alleged to have perpetrated the offense conduct their activities outside of Manhattan. As long as there is a nexus to New York County and a fraud is perpetrated, DA Vance is keeping his eyes wide open.

Can these defendants explain their conduct? Is there an answer to why the checks landed in their respective accounts? Is the indictment flawed in any way? Is the best defense one of mitigation as opposed to one based in challenging the evidence or believed facts? While I am not immersed in this case and have no information beyond the press release, I am confident these defendants and their respective attorneys are grappling with some of the same questions and will continue to do so in the foreseeable future.

To educate yourself about any New York Grand Larceny crime or the theft laws and statutes in found in the New York Penal Law, please follow the highlighted links above or below. Established by two former Manhattan prosecutors, the New York criminal defense attorneys at Crotty Saland PC represent clients accused of all white collar crimes throughout New York City and the surrounding areas.

NY County DA: 85 Year Old Woman Defrauded Out of $1.6 Million by "Youngster" Nine Years Her Junior

Mon, 30 Apr 2012 21:04:22 -0500

In an alleged elder abuse case perpetrated by a member of the same generation, Manhattan District Attorney Cyrus R. Vance, Jr., claims that 76 year old Philip Leopold bilked his contemporary, an 85 year old woman, to the tune of $1.6 million. The Justice League contends that Leopold took advantage of his nearly blind and deaf contemporary as early as 2002.

DA Vance believes that between 2002 and 2010, Leopold created a trust for his victim that he and the Bank of New York were named as co-trustees. Shorty after its creation, the trust grew to more than $2 million. Around the same time, it is believed that Leopold opened a checking account at the bank where he previously opened the trust. Not completely devious in nature, prosecutors contend that Leopold used part of the money to pay the complainant's household expenses as he took control of some of her finances and prepared checks for her signature.

During this period, the Manhattan District Attorney's Office alleges that Leopold stole more than $1.6 million by writing unauthorized checks to himself from multiple bank accounts. Further, prosecutors assert that he also sent forged letters with forged signatures of his victim to one of the banks requesting a transfer of tens of thousands of dollars from the trust account to the checking accounts. Following the "paper trail," funds that originated from the trust account went to the checking account of the victim (that was in control of Leopold) and then to Leopold's personal bank account.

Leopold is believed that have spent more than $63,000 to rent storage units, $882,000 to pay for personal credit card charges and more than $500,000 at ShopNBC. Even more intriguing, it is alleged that Leopold used $300,000 to finance health and insurance polices for his daughter and himself.

As a general rule, partners cannot steal from partners (People v. Zinke, 76 N.Y.2d 8 (1990). However, this case does not involve theft by a co-owner of a property from another. Instead, it involves the alleged theft of a trustee of property from the beneficiary he is legally obligated to financially assist. As such, is there a reason why insurance policies were paid for Leopold and his daughter with these monies? Could it be that she was generous or did not have any heirs? Alternatively, was the old woman the beneficiary of those policies? Further, were the items purchased by Leopold on ShopNBC given to the victim or purchased at her behest? Even assuming they were not, what authority did this woman give to Leopold to make purchases or even sign her name? Was it commonplace for him to do the latter? What was the alleged complainant's net worth? While a theft is a theft regardless of how much, is it possible that $1.6 million is merely a fraction of that worth and an amount that was "gifted" for years of friendship and assistance? There are certainly many questions that must be asked in this case that cannot be addressed by a press release. Although the circumstances objectively seem fairly "bad," things are not always as devious as prosecutors believe. I am certain, however, time will tell us whether the Manhattan District Attorney's Office's theory rings true in a case of apparent fraud.

As it stands now, Leopold is in "hot water" as he is looking at numerous felonies including Grand Larceny in the First Degree (New York Penal Law 155.42). As a result, he faces mandatory state prison even as a 76 year old first time offender (just ask Anthony Marshall, Ms. Astor's son who is out of custody during the pendency of his appeal for an even greater theft). Additionally, Leopold faces numerous other felonies including Forgery in the Second Degree, Criminal Possession of a Forged Instrument in the Second Degree, Falsifying Business Records in the First Degree, Offering a False Instrument for Filing in the First Degree, Attempted Grand Larceny in the Third Degree and Attempted Falsifying Business Records in the First Degree. These crimes are D and E felonies as well as A misdemeanors.

To learn more about each of crimes listed above, search Crotty Saland PC's websites. Both the NewYorkTheftAndLarecnyLawyers.Com and CrottySaland.Com websites have a wealth of information on the specific crimes that are presented clearly and in depth. Links to some of these crimes are found above while the remainder are found on the websites below.

Crotty Saland PC is a New York criminal defense firm. Founded by two former Manhattan prosecutors, the New York criminal defense attorneys at Crotty Saland PC represent those investigated, arrested and indicted for White Collar and theft crimes throughout the New York City area.

DA: Nepalese National Defrauded Fellow Countrymen Out of Thousands of Dollars in Immigration Scam

Thu, 26 Apr 2012 12:22:19 -0500

A prosecutor needs to protect all people regardless of whether they are citizens, residents or even illegally living in the United States. While members of the defense bar can, and usually do, spar with their prosecutorial counterparts in order to ensure the burden of proof is met in any criminal complaint or allegation, it does not diminish the role of the District Attorney (or defense lawyer for that matter). In fact, Manhattan District Attorney Cyrus Vance, Jr., who championed protecting immigrants as one of his platforms, is exercising the power of the New York Criminal Justice System to assist people who fall pray to those seeking to take advantage of immigrants. According to the DA website, Vance Inc. has obtained the arrest and indictment of Hit Shrestha, "a Nepalese national, for systematically defrauding other Nepalese nationals of thousands of dollars." As such, Shrestha faces multiple felony charges including Grand Larceny in the Fourth Degree (New York Penal Law 155.30) and Scheme to Defraud in the First Degree (New York Penal Law 190.65).

According to the New York County District Attorney's Office, Shrestha allegedly convinced multiple Nepalese immigrants to pay her a fee ranging from $3,000 to $7,000 so she could arrange for their family members to come to the United States. These fees included air travel and immigration forms. Prosecutors further claim that Shrestha bonded with new immigrants from her home country of Nepal by inviting them to dinner, introducing them to local people in the Nepalese community and helping them find employment.

Despite what appeared to be honest and good intentions, the DA's Office believes that Shrestha merely scammed her countrymen and women. In fact, prosecutors assert that an alias of Nitu Rana was utilized and Shrestha even represented herself as the sister of Dr. Arzu Rana Deuba, a well-known Nepalese public figure and wife of former Nepalese Prime Minister Sher Bahadeur Deuba. Preying on other's belief in this relationship, it is alleged that Shrestha convinced her targets to pay these fees after she advised them that there would be a seat on the plane carrying Dr. Deuba's delegation the United States. When the family member did not arrive as promised and the victims of the alleged scam complained, prosecutors believe that Shrestha threatened to have them deported.

As noted above, a Grand Jury indicted Shrestha for one count of Grand Larceny in the Fourth Degree and one count of Scheme to Defraud in the First Degree. "E" felonies, both of these crimes are punishable by up to four years in prison. What is interesting is that according to the press release, Shrestha is only charged with one theft count where the financial threshold is greater than $1,000, but equal to or less than $3,000. Where the claim is that Shrestha defrauded multiple victims in excess of $3,000, one would think an indictment would reflect more counts of Grand Larceny (for each victim) and the higher level crime of Grand Larceny in the Third Degree (New York Penal Law 155.35). This Third Degree offense involves thefts in excess of $3,000, but equal to or less than $50,000. Either prosecutors did not have those other individuals available or the Scheme to Defraud offense covers those complainants. Briefly, when charging this latter offense, prosecutors need only to establish the identity of one of the victims and not every individual.

Whether prosecutors are holding off on more or greater charges or this is the indictment in its final form, those who might abuse immigrants should take note. District Attorney Vance is serious about fighting this type of crime and will certainly not hesitate to prosecute offenders.

To learn about the crimes of Grand Larceny in the Fourth Degree, Grand Larceny in the Third Degree and Scheme to Defraud in the First Degree, please follow any of the highlighted links. Both the NewYorkTheftAndLarcenyLawyers.Com website and CrottySaland.Com website, as well as the blogs and links listed below, are tremendous resources for information, cases and legal decisions on these theft statutes.

Established by two former Manhattan prosecutors, Crotty Saland PC is a New York criminal defense firm. The New York criminal defense attorneys at Crotty Saland PC represent those accused of all white collar crimes throughout New York City and the region.

Understanding & Defining "Property" in a New York Scheme to Defraud, Theft & Larceny Crime

Sun, 22 Apr 2012 12:50:08 -0500

New York is no stranger to white-collar crime. In this recession, post-Madoff era it is no wonder that District Attorney's throughout the greater New York City area are coming down hard on white-collar criminals. In today's blog post I'd like to discuss one of the laws often at the center of many white-collar prosecutions: Scheme to Defraud. New York Penal Law 190.65 defines Scheme to Defraud in the First Degree (summarizing in my own language - follow the highlighted link for our legal our more detailed legal analysis) as an ongoing plan to obtain property by false pretenses/fraud from multiple people. Usually, the schemer devised the plan with the express purpose of gaining property from multiple victims and executes the plan continuously (often over an extended period of time).

Now, for purposes of the Scheme to Defraud law, property does not have to be a tangible thing (e.g. money, antique stamps or electronics). Case law throughout the years has expanded what constitutes property under NY Penal Law 155.00 to include intangibles. For instance, some intangibles that constitute property are: contractual rights (e.g. a contract to renovate a hotel), a tenant's legal right to posses an apartment, the right to conduct business (e.g. right of a waste management company to service a restaurant), and a right to be employed (e.g. a union official's right to a position that he held). However, there are limits as to these intangibles that are included, and today I'd like to discuss one such limitation.

I want to highlight an important New York County (Manhattan) case, People v. Cohen, 187 Misc.2d 435, 720 N.Y.S.2d 731, (Sup. Ct. New York County 2000). This case took up the question of whether a license and registration, which had been obtained through a scheme/fraud, constituted property within the meaning of the scheme to defraud statute. Specifically the case dealt with "broker-dealer" licenses and registration. It involved a group of individuals who ran a securities firm called Renaissance Financial Securities Corporation. Through fraud perpetrated on the Security Exchange Committee (SEC), the National Association of Securities Dealers (NASD), and the State of New York the Renaissance Corp., Cohen (defendant Cohen is the first named member) obtained broker-dealer licenses. On appeal, and in light of a then recently decided Supreme Court decision Cleveland v. United States, 531 U.S. 12 (2000), the defendants made a motion to dismiss the Scheme to Defraud charges on the grounds that the broker-dealer licenses could not be considered "property."

In order to understand the New York County decision in Cohen we must start with a discussion of the Supreme Court's reasoning in Cleveland. The defendants in Cleveland were charged with a federal statue similar to NY's Scheme to Defraud statute for fraudulently obtaining a license to operate video poker machines from the state of Louisiana. The US Supreme Court held that for purposes of the mail fraud statute (the law at issue), the thing obtained must be property in the hands of the victim. Although State and municipal licenses may become "property" in the recipient's hands, (once the defendants got the license they could run their poker machine business) they do not qualify as "property" in the licensor's hands (state of Louisiana).

In other words, the licensor is a regulator concerned only with granting a license to those deserving, but the license itself only becomes valuable in the hands of the actor committing the fraud. Contrast this with another intangible that has been deemed property for purposes of Scheme to Defraud: a contract. A contract has value in all instances. For instance, a contract to renovate a hotel (People v. Capparelli, 158 Misc.2d 996, 603 N.Y.S2d 99 (1993), is not tangible, but has value to all parties involved.

Similarly, a broker-dealer license (like the video poker machine license) is unique because in the hands of NASD (the regulating body) the license has no inherent value. As the Cohen court put it: "the broker-dealer registrations and approvals are merely an embodiment of NASD and the State of New York's regulatory interest." Thus, the court in Cohen, on the back of the Supreme Court decision in Cleveland, ruled definitively that this license does not constitute property for purposes of scheme to defraud. This of course does not mean that committing fraud to obtain a license does not violate other laws. However, this New York case does make it clear that while many intangibles may constitute property for the purposes of larceny and Scheme to Defraud, licenses and registrations may not be amongst them.

The above analysis of Cohen as well as the description of Scheme to Defraud is merely a brief review of the case and statute respectively. A further analysis of the actual language and elements of the crime can be found by following the link above. Not a substitute for a consultation with a New York criminal defense attorney experienced in white collar, theft and fraud crimes in New York, this blog, as well as the NewYorkCriminalLawyerBlog.Com and CrottySaland.Com website, all have significant information - from cases to statutes - for review on all New York crimes. Their links can be found below.

Crotty Saland PC is a New York criminal defense firm that represents clients in all white collar, theft and larceny crimes in the greater New York City area. Crotty Saland PC was founded by two former Manhattan prosecutors.

Direct & Collateral Issues for NYC Department of Education Employees & Public School Teachers Arrested for New York Theft Crimes Part I

Mon, 16 Apr 2012 16:32:49 -0500

New York City public school teachers, just like members of any profession, are not immune from arrests, Desk Appearance Tickets (often called NY DATs), indictments or convictions for crimes set forth in the New York Penal Law. In New York City - Manhattan, Brooklyn, Queens and the Bronx - the Department of Education dictates certain types of crimes that can devastate or end the career of a teacher whether that offense stems from a misdemeanor DAT or a felony arrest. As such, the New York City Department of Education requires the reporting of these arrests. Whether or not you ultimately seek the guidance or representation of a New York criminal lawyer or defense attorney at your arraignment, it is critical to understand what you may face in the criminal court as well as in the classroom.

Briefly, and before discussing the reporting requirements for teachers arrested in NYC as mandated by the NYC Department of Education, there are five common misdemeanor crimes that the criminal defense attorneys at Crotty Saland PC have either prosecuted as Assistant District Attorneys in Manhattan or defended as criminal lawyers. In no way, however, is this an exhaustive list. These crimes are shoplifting pursuant to Petit Larceny (NY PL 155.25) or Criminal Possession of Stolen Property in the Fourth Degree (NY PL 165.40), Theft of Services (New York Penal Law 165.15), Assault in the Third Degree (NY PL 120.00) and Criminal Possession of a Controlled Substance in the Seventh Degree (NY PL 220.03). Because this blog is dedicated to theft and larceny crimes in New York, the latter two offenses will not be addressed here (extensive information on these crimes is available on our sister blog and website at CrottySaland.Com as well as NewYorkCriminalLawyerBlog.Com).

Generally, one is guilty of of Theft of Services, NY PL 165.15, when one utilizes a service from a cab or restaurant, for example, and intentionally does not pay the bill for that service. The shoplifting crimes of Petit Larceny (sometimes called "Petty Larceny") and Fourth Degree Criminal Possession of Stolen Property occur when one intentionally takes property from an owner with the intent to benefit oneself (or withhold it from the owner) or possesses that stolen property with the same intent. All three of these theft and larceny crimes - NY PL 155.25, NY PL 165.40 and NY PL 165.15 - are "A" misdemeanors punishable by no more than one year in jail.

While spending time on Rikers Island is extremely atypical for a first or even second time offender, the reality for a teacher or any other public school employee in New York who is arrested and / or issued a Desk Appearance Ticket for a New York City theft crime is that there are collateral consequences. It is not so much the jail issue, but what will happen to a teacher's license, employment, certification, etc.?

As a preliminary matter, the New York City Department of Education mandates that a teacher arrested (that includes being given a DAT) must report their arrest as follows:

"Any person employed by or in the Department of Education, or employed by a Department of Education employee to provide services in Department facilities (i.e., custodial helper) who has been arrested and charged with a felony, misdemeanor or violation must immediately notify the OPI and his/her building or office supervisor in writing and provide a copy of the criminal court complaint. Notification to a supervisor alone does not satisfy this reporting requirement. OPI must be notified separately in writing. Custodial helpers must agree in writing to comply with the terms of this regulation as a condition of eligibility for employment with a Department custodian. Failure to notify should be the subject of appropriate disciplinary action." (New York City Department of Education Regulation of the Chancellor issued 2/11/03 )

Failure to abide by the above rule may compromise a teacher's ability to work within the Department of Education whether that means suspension or termination of employment. This may be true even if the arrest is ultimately unfounded.

Keep in mind that this blog entry only briefly discusses the reporting requirements for a teacher who is arrested in New York. It is not a substitute for a consultation with your own criminal lawyer. In fact, the Regulation of the Chancellor is dated 2/11/03 and may be subject to change and as such you should confirm its accuracy as new regulations routinely are issued.

Although this blog addresses actions you should take upon your arrest as a teacher, this entry does not address the potential offers at your arraignment. While you may be offered a Disorderly Conduct (NY PL 240.20) or an Adjournment in Contemplation of Dismissal (often called an "ACD") at your arraignment for a Petit Larceny, Criminal Possession of Stolen Property or Theft of Services, what are the differences?. Certainly, before agreeing to either type of non-criminal disposition - an ACD or Disorderly Conduct - it is important to be fully aware of the associated problems, benefits and long term consequences between these resolutions as well (a very brief analysis can be found on the NewYorkCriminalLawyerBlog.Com). For example, is it possible that a Disorderly Conduct plea will show up years later even if it is not a criminal conviction? What will happen to your record while an ACD is pending?

Consult with your criminal attorney and review the applicable laws, statutes and regulations associated with the arrests of NYC Department of Education employees. Arming yourself with knowledge may be your best defense in protecting your future.

Crotty Saland PC is a New York criminal defense firm representing clients in all criminal matters throughout the New York City area. Extensive Information on the crimes listed above as well as Desk Appearance Tickets can be found through the related links or by searching the websites and blogs below.

Theft By False Promise & Joint Accounts: NY Grand Larceny Arrests Involving Partnerships & Co-Owned Property

Thu, 12 Apr 2012 06:11:42 -0500

An arrest for a New York Second Degree Grand Larceny charge is a life altering event. An indictment or conviction for New York Penal Law 155.40 is even worse. In fact, an arrest for an degree of Grand Larceny in Manhattan, Queens, Brooklyn, Westchester or any county is potentially devastating. Because of this, it is critical to examine or identify potential defenses with your criminal lawyer right out of the gate. Fortunately, some defendants arrested for or charged with any Grand Larceny crime may actually have a "built in" defense to the theft or larceny allegation against them. For example, can a partner perpetrate a Grand Larceny from another partner when he or she misappropriates partnership funds? After all, partners both have rights to the money and funds, right? In such a case is the best defense one where your criminal lawyer or theft defense attorney cites People v. Zinke, 76 N.Y.2d 8 (1990). There, the Court of Appeals held that "...in New York, partners cannot be charged with larceny for misappropriating firm assets. Indeed...a partner "[can] not steal partnership property." Further, the "...important point is that limited partnerships are partnerships in the eyes of the law of this State, and as such they come within the rule that partners cannot be guilty of larceny when they steal from them."

Well, as clear as the law may seem based on this case and other decisions by our state's highest court, law is not math. Each case is unique and there are often twists that impact the application of those laws. One such example can be found in People v. Antilla, 77 N.Y.2d 853 (1991). In Antilla, the defendant's now deceased and previously widowed great-aunt gave the defendant control over some of her financial affairs. Further, the great-aunt left the defendant one third of her estate. Shortly thereafter, the great-aunt deposited $180.000 into a money market account where both parties were joint owners.Over the next fourteen months, the defendant withdrew most of the money. Additionally, he received the statements. Ultimately, the defendant left New York and gave up financial control of this great-aunt's estate other than the money market account where the $180,000 was deposited. Unfortunately for the defendant, a jury convicted him of Grand Larceny in the Second Degree - NY PL 155.40.

The issue or question raised in this case, and briefly addressed above, was can a joint owner or partner in property be convicted of a larceny crime for stealing that property? Here, the Court found that it could, albeit, through an interesting route (there goes the Zinke rule right out the window...)

The Court first noted that the People met their burden of establishing a larceny by false promise when the defendant induced his great-aunt to open a joint account. The People further met their legal burden by establishing the defendant never intended to or believed he would take care of his great-aunt's financial affairs when he opened the account. As stated by the Court: "The jury's finding of larcenous intent flowed 'naturally and reasonably' from the entire array of facts and circumstances and 'exclude[d] to a moral certainty' every hypothesis except defendant's guilt."

Addressing the issue of this blog, how could the defendant be convicted of Grand Larceny if, as a joint owner, he was withdrawing money from a partner's account? Simply....it is "the larcenous creation of the joint account, not defendant's withdrawals from it, [that] provided the basis for his conviction." In other words, the Court inferred, if not stated clearly, that if this was a legitimately and honestly opened account and shared between two account holders with the same rights to the property, ie, partners, then an issue would have risen as to what needed to whether a crime of theft was perpetrated. Here, however, there was never a true desire to open an account to assist or benefit the great-aunt. Instead, larcenous intent existed. As such, this partnership, if it could be called that, was fraudulent and a "larcenous creation" from its inception.

The reviews here of Zinke and Antilla are very brief and far from in depth. Are these case decisions that could be utilized by your attorney in your Grand Larceny arrest? What if the theory of your theft is not one of "false promise?" Would it matter? Consult with your own criminal lawyer. Ask these questions. Set your defense into motion.

To learn about all New York Grand Larceny arrests and crimes, follow the respective links above or through the websites and blogs below.

The New York criminal lawyers at Crotty Saland PC represent clients in all Grand Larceny and Criminal Possession of Stolen Property arrests, indictments and trials throughout New York City as well as many suburban counties. The two founding partners at Crotty Saland PC served as Manhattan prosecutors prior to starting the criminal defense law firm.

Two NYC Attorneys Arrested in Alleged New York Criminal Tax Fraud Scheme: Understanding Tax Fraud & Stolen Property Crimes in New York

Sat, 07 Apr 2012 23:51:37 -0500

Not paying taxes is bad enough, but getting caught by the New York State Department of Taxation and Finance and then getting prosecuted by the Queens County District Attorney's Office is far worse. Having represented numerous individuals for New York theft and tax fraud crimes, including one individual for alleged tax fraud crimes after wrongfully incurring a tax liability of $5 million, I know full well how aggressive prosecutors can be in their pursuit of making the State "whole." Fortunately for that client, prosecutors agreed to accept forfeiture or re-payment of less than $2 million along with no incarceration or prison. Each case however, especially in these tumultuous economic times, is unique and arguably more difficult to resolve in such a manner. In fact, two New York City attorneys find themselves in a serious predicament, albeit with significantly less alleged fraud, and likely face a battle ahead.

According to the New York Law Journal, two attorneys, David Schnall and Ralph Duthely, were arrested and arraigned in Queens Criminal Court on numerous criminal charges including New York Criminal Possession of Stolen Property and New York Criminal Tax Fraud for failure to pay taxes over many years. Unrelated criminal acts, it is alleged that Schnall had a tax liability of $53,629 while Dudthely had a relatively smaller tax liability of $17,209. Although I am not familiar with Duthely's counsel, Schnall is in the capable hands of John Diaz, a skilled practitioner whom I personally know having served alongside him for years in the Manhattan District Attorney's Office.

Pleasantries aside, both Schnall and Duthely find themselves in a serious predicament. Not that anyone else charged with felonies related to theft and fraud would be free from collateral consequences, these two attorneys have been granted the privilege to practice in their given profession of law. A felony conviction for a tax and larceny crime could derail that. Is there a legal defense as to why, if true, the tax was not paid or income not reported? Even if true, are these "easy" paper trail cases that prosecutors can follow right to a conviction or plea? If a legal or evidentiary defense is not viable, will the defense hang their proverbial hat on a mitigation approach?

Whatever the respective defenses may be for these men, the two most serious offenses in the prosecutors' arsenal is likely the Criminal Possession of Stolen Property in the Second Degree (New York Penal Law 165.52) and Criminal Tax Fraud in the Third Degree (New York Tax Law 1804). These crimes are "C" and "D" felonies and punishable by up to fifteen and seven years in state prison respectively. Similarly, Duthely's most serious offense is Criminal Possession of Stolen Property in the Third Degree (New York Penal Law 160.50) and Criminal Tax Fraud in the Fourth Degree (New York Tax Law 1803).

Briefly, you are guilty of Criminal Possession of Stolen Property, regardless of the value, if you knowingly possess stolen property and, as likely contended in these cases, you intended to benefit yourself. What enhances each crimes is the value of that property possessed (the tax money withheld). When the value is in excess of $50,000, but equal to or less than $1 million, then NY PL 165.52 will be charged. If the value of the property is greater than $3,000, but equal to or less than $50,000, then NY PL 165.50 will be the charged crime.

Not as straight forward, the Criminal Tax Fraud crimes in New York State occur when you commit a "tax fraud act." This term is actually defined by statute and includes numerous possible acts such as failure to collect or remit taxes, failure to file a return, intentionally evading a tax and much more. What ratchets the crime upward to felony conduct is the value associated with the "tax fraud act." Where Criminal Tax Fraud in the Third Degree (NY Tax Law 1804) is alleged, prosecutors must prove beyond a reasonable doubt that this amount during a one year period was greater than $10,000, but no more than $50,000. Fourth Degree Tax Fraud (NY Tax Law 1803) is more forgiving and involves values during a one year period ranging from more than $3,000, but not greater than $10,000.

In no way am I claiming or even asserting that these cases do not have prosecutorial merit. If in fact the thefts are true and prosecutors can prove the cases beyond a reasonable doubt, they certainly have an obligation to pursue these crimes. For District Attorney's Offices it is arguably a great case to pursue. Not only does it show they are tough on white-collar crimes that often go unnoticed, but by going after an attorney it gives them more credibility as they are going after fellow lawyers in the community, a/k/a, one of "their own." In other words, a message is sent that nobody, regardless of profession, is free from law enforcement's ongoing gaze. I am confident this lesson is not lost on either of the accused.

To educate yourself about New York Criminal Tax Fraud, "tax fraud act[s]," Criminal Possession of Stolen Property or any other New York theft or larceny crimes, Crotty Saland PC's NewYorkTheftAndLarcenyLawyers.Com website and accompanying blog or CrottySaland.Com and the accompanying NewYorkCriminalLawyerBlog.Com all have significant, informative and readable information on these offenses. The links above as well as below provide instant access to these resources.

Founded by two New York criminal lawyers who previously served as Manhattan Assistant District Attorneys and prosecutors under Robert Morgenthau, Crotty Saland PC represents clients accused of or arrested for all white-collar crimes in New York City and beyond.

Stealing Worthless Property in New York: Have You Committed a Crime?

Wed, 04 Apr 2012 17:02:41 -0500

A very simple (yes, very simple) way to examine or understand New York's theft and larceny laws is to look at value of property that is alleged to have been stolen. If you steal property in excess of $1,000, then your arrest would be for a felony Grand Larceny. If value is less than this amount, then your arrest would be for a misdemeanor Petit Larceny. While I have drafted numerous entries addressing the importance of value in a New York larceny arrest as well as how that value is ascertained by New York courts, there are some questions outstanding. Is it possible to be convicted of either Grand Larceny or Petit Larceny where there is no value? The answer to this question is "yes."

A legal decision that is directly on point and addresses this issue is People v. Freeman, 148 A.D.2d 467 (2nd Dept. 1989). There, a Brooklyn (Kings County) jury convicted the defendant at trial for "Grand Larceny from the Person" as codified in New York Penal Law 155.30(5). The People proved beyond a reasonable doubt in that case that Freeman stole a purse from a woman. The purse contained pieces of torn currency. Although the court denied the request of the criminal defense attorney, the defense lawyer asked that the jury be charged with the lesser offense of Attempted Grand Larceny under the theory that the property ultimately taken - pieces of torn currency - had no value.

Unfortunately for the defendant, the Appellate Division upheld the trial court's decision not to instruct the jury as requested. First, the appellate court was clear in affirming that you are guilty Grand Larceny in the Fourth Degree if you take property from the person of another (they are holding or wearing it, for example), "regardless of its nature and value." Here, even though the pieces of cash were valueless, it was taken by removing the property from the complainant. Although the court did not further define "property," this decision should be clear as to its message. In order to be convicted of a New York theft or larceny crime, there need not always be a value. If not Grand Larceny, Petit Larceny would likely be a viable charge. While value is charge specific (some crimes require minimum values while others merely require certain types of property - credit cards or secret scientific material), no value will not protect your from criminal conduct.

It is worth noting that no value and value that cannot be ascertained are not one in the same. That is, if your criminal lawyer is arguing with the prosecution whether an item or object has a value of $1,100 or $100, the courts have a remedy to address these situations. Assuming the court cannot determine the market value as well, the New York Penal Law allows a court to set or assign value in a general amount less than $250. Obviously, if the People are seeking to prove a felony Grand Larceny, this provision of the law could be extremely beneficial in a value-based arrest as more than $1,000 is the necessary threshold in any felony indictment or offense.

The message to glean from Freeman is that a failure to establish value will not exonerate you in a larceny case. While it may impact the degree of the charge if that offense is based in value, some Grand Larceny crimes are felonies based purely on the item alleged to have been wrongfully taken.

Because there are many statutes and legal decisions that make up the laws of Petit Larceny, Grand Larceny and Criminal Possession of Stolen Property, no one blog entry will serve as sufficient guidance to navigate a theft arrest in New York. A review of the links above and below will provide significant and practical insight into the various crimes and offense that compromise New York's larceny laws while giving you some basis to begin your discussions with your criminal lawyer.

Crotty Saland PC is a New York criminal defense firm established by two former Manhattan prosecutors. The New York criminal defense attorneys at Crotty Saland PC represent clients investigated and arrested for Grand Larceny and other theft related crimes in New York City as well as many of the surrounding suburbs,

Defining "Owner" in a New York Grand Larceny or Petit Larceny Case

Fri, 30 Mar 2012 06:23:32 -0500

Whether it is a shoplifting arrest for New York Penal Law 155.25 or an Embezzlement arrest for Second Degree Grand Larceny - New York Penal Law 155.40, there are certain critical elements that are fluid or consistent amongst all New York theft and larceny crimes. Certainly, your New York criminal lawyer or defense attorney will analyze the evidence in each allegation and apply the applicable law to determine whether or not the prosecution is able to prove their case beyond a reasonable doubt, but some of that analysis will be the same across all theft arrests. In non-legal terms, your counsel will seek to refute or challenge an Assistant District Attorney's allegation that you took property from another person who had a superior right of possession and did so for your own benefit or to prevent the owner from retrieving it. Keep in mind that while value is directly related to the degree of the crime, it is not a requirement to prove a base level larceny.

If you noticed above, I used the terms "superior right" and "owner" when describing the elements of a Grand Larceny or Petit Larceny crime or arrest. Are these terms interchangeable? What is an "owner?"

The law is very clear. New York Penal Law 155.00(5) defines the term "owner." According to New York law, an "owner," in part, is any person who has a right to possession thereof superior to that of the taker, obtainer or withholder." So, how do the courts determine who has the superior right? If "owner" is not a literal term, then beyond a few words in a statute, how do courts interpret this definition? Shedding some light on this term, New York's State's top court, the Court of Appeals, has addressed this terminology and applied it the law on multiple occasions.

One case where the Court has shared its insight into the foundation of a larceny crime as it pertains to "owner" was People v. Hutchinson, 56 N.Y.2d 868 (1982). There, the Court grappled on appeal whether a jury had the proper evidence and instructions before them as to the "owner" prong of a larceny offense. There, prosecutors alleged that the accused robbed a bank. At trial, instead of claiming the victim and "owner" of the property, a/k/a, the money, was the bank, a specific individual was identified. Further, money was taken from to tellers. In response, the defense argued that in order to be found guilty of any type of theft, the prosecution needed to establish that this person was in fact the "owner" of the property. Further, if the money was taken from two individuals, shouldn't the prosecution be required to have two "owners?" The Court found that:

"The jury was charged in the language of the statute, which did not require proof here that [the individual] had an independent right of possession but only that he had a possessory right which, however limited or contingent, was superior to that of defendant. Because the proof was uncontradicted that [the individual] was an employee of the bank it cannot be said that the jury was not warranted in concluding that as such employee he had a right of possession superior to that of defendant, who had no right of possession whatsoever. In this view it is immaterial that the proof was that the bank's money came from the drawer of two other tellers."

Whether you are a New York theft lawyer or a person with no experience in the criminal justice system, this decision and its overall value or meaning should be fairly easy to follow. "Owner" is not a literal term. If someone has a right to possession that is greater than yours, whether or not he or she is the actual owner, one of many owners or merely a person who is just a custodian, then this initial requirement is satisfied. Whether the theft is alleged from a co-owner, partner, or some similarly situated person, well, then...you will just have to read our other blog entries that deals with this and other theft issues.

To better understand the intricacies and elements that make up New York's theft and larceny crimes and laws, review the links above as well as the blogs and websites below.

Crotty Saland PC, a New York criminal defense firm representing clients throughout the New York City area, was established by two former Manhattan Assistant District Attorneys.

Grand Larceny by False Promise: The Criminal Defense and Application of the "Moral Certainty" Standard in a New York Grand Larceny Case

Sun, 25 Mar 2012 22:32:46 -0500

Imagine that you're running a little low on cash. You don't have money, but you have a skill that can earn you some money. Maybe its construction, or repairing automobiles, or tutoring - the type of work is irrelevant, what matters is that you have a customer and he or she has agreed to pay you in advance. As you're preparing to begin this extra work, something happens, and suddenly you can no longer perform the job that you promised to do. To make matters worse, you've spent the money that your customer has paid you, so you can't even return the cash. While this turn of events is certainly embarrassing, another potentially harmful consequence looms in the distance - is it possible that you've also committed a crime and violated the New York Penal Law (Grand Larceny or Criminal Possession of Stolen Property)? Can your truly innocent error now result in an arrest? Will you need a criminal attorney or criminal lawyer to protect your rights and keep you from jail or incarceration?

Under New York Penal Law 155.05, obtaining property by a false promise, a/k/a/, Theft by False Promise, constitutes the crime of larceny. A person obtains property by false promise when, based upon a scheme to defraud another person, he or she obtains that person's property by making a promise to do something that he or she actually has no intention of doing. Applying this law to the circumstance described above produces frightening results. Though your promise may have been sincere, the fact remains that you haven't done what you said you would and you've still taken your customer's money. Put differently, you now possess their property in exchange for a promise that was never performed.

The situation looks bleak; your intentions were good, but possession is 9/10th's of the law. If the customer alleges that you never really intended to perform the job, that you were lying all along, could you really be convicted of Grand Larceny by false promise? As luck would have it, New York's highest court considered this very question in People v. Churchill, 47 N.Y.2d 15 (1979). In Churchill, a defendant had recently lost his job. Unable to find work, he started a small business in a field in which he had over 20 years experience: construction. At first, work came slowly, and a number of jobs were completed without incident. But as things picked up, so did his problems.

The defendant accepted a contract for $1,200 to repave two driveways. Rather than put a down payment on the work, the customer paid the full contract price for the construction in advance. A portion of the customer's funds were used to rent equipment and hire additional workers, and the project began as normal. While this was taking place, the defendant accepted a second construction contract from a different customer for $3,400. He was given a down payment of $2,400, and used $1,300 to purchase supplies for the project. Ultimately, both jobs encountered serious delays, and the work that was completed on each was sub-par at best. Before either job could be finished, both customers terminated the defendant's services.

One week later, the defendant accepted another contract to repave a driveway, install a sluice, and pour concrete for a garage floor. He charged the customer $2,600 for the work, $2,100 of which was paid up front. The defendant rented machinery and purchased materials, and the job began without incident. While the project was in progress, however, the customer received a visit from the county sheriff, who claimed to be investigating the defendant's company. Alarmed by the sheriff's visit and dissatisfied with the slow progress of the defendant's work, this customer also terminated the defendant's services.

After numerous complaints regarding the defendant's shoddy business practices, the district attorney began to take notice. An investigation took place, and for his failure to complete the four jobs, the defendant was charged with four counts of Grand Larceny in the Third Degree (New York Penal Law 155.35), a felony. At trial, prosecutors alleged that the defendant had engaged in a scheme to defraud the four customers, and that he had never actually intended to complete the work that he had promised to perform. The defendant was tried and convicted on three counts of larceny by false promise. He appealed this conviction. In his appeal, the defendant argued that although he had entered into a contract and been paid to perform work that was ultimately never finished, prosecutors had nonetheless failed to prove their case against him.

In evaluating the defendant's appeal, the Court began by explaining that in this circumstance, the evidence presented at trial must be viewed in the manner that is most favorable to the prosecution. Referencing New York Penal Law 155.05, it noted that in cases involving larceny by false promise, guilt may not be established or inferred from a defendant's failure to perform a promise by itself. Rather, guilt can only be proven where the facts of the case are "wholly consistent with guilty intent or belief and wholly inconsistent with innocent intent or belief. . .excluding. . .every hypothesis except that of the defendant's intention or belief that the promise would not be performed." In this circumstance, such a finding could only be made by looking back to the point at which the promise had been made and determining if the sole explanation for the defendant's actions was an intent to defraud his customers.

Looking to the evidence presented at trial, the Court found that this substantial burden had not been met. It explained that, in a prosecution for larceny by false promise, guilt must be proven "to a moral certainty." Though it was true that the defendant possessed significant experience in performing construction, he had almost no experience at managing a construction company. Furthermore, a portion of the funds paid for each job had been used to purchase supplies for the work's completion. None of the projects had ever actually been terminated by the defendant - rather, the customers had canceled his services in each instance. Finally, while it was true that the defendant had used a portion of each down payment for personal expenses, this was just as likely the result of his dire economic circumstances as a scheme to defraud his customers. Given the evidence, the Court found that it was just as likely that the defendant was an inexperienced novice "whose talents of salesmanship surpassed his ability to manage a business," as it was that he had committed larceny. Therefore, the Court determined that the prosecution had not met the high burden necessary to establish his guilt of larceny by false promise, and the conviction was reversed.

Obviously, every case is unique, but this legal decision is nonetheless quite significant. Limited in its value to situations such as those examined here, this case has the potential to be utilized by your New York criminal defense attorney to establish your innocence or attack the prosecution's ability to prove your case beyond a reasonable doubt.

To better educate yourself on the wide variety of New York theft and larceny crimes, review this blog or the websites below. Further information is also available through the listed links.

Established by two former Manhattan Assistant District Attorneys, the New York criminal defense attorneys at Crotty Saland PC represent clients in all white collar, Grand Larceny and Criminal Possession of Stolen Property investigations, arrests, indictments and trials throughout New York City and the suburban region.

A "Claim of Right" Defense to a New York Embezzlement or Grand Larceny Arrest: Understanding NY PL 155.15 & Its Applicability to Your Criminal Defense

Mon, 19 Mar 2012 06:15:46 -0500

In many of our discussions, we've highlighted that while New York's larceny and theft laws can seem straightforward enough on paper, their interpretations are sometimes extremely ambiguous. As a result, we've recommended consulting your New York criminal lawyer in any circumstance where you have been charged with a larceny-related offense whether it be Petit Larceny, Grand Larceny, Criminal Possession of Stolen Property or a similar crime. Today, we'll be discussing one of a number of defenses that, in the event you are charged with a crime involving larceny, your attorney may be able to assert on your behalf.

There are many methods of proving a defendant's innocence (actually, it is the People's burden to prove your guilt). In some circumstances, it is most effective to highlight inconsistencies in the prosecution's case. In others, evidence can be presented that contradicts the state's theory of a crime. A third and somewhat less utilized method of proving a defendant's innocence is to assert a statutory defense. Unlike the first two methods, a statutory defense admits that while a defendant may have performed the crime that prosecutors allege, such as Petit Larceny or Grand Larceny, there is a justification that excuses him or her from guilt for doing so.

In New York, one example of a statutory defense is the claim of right. A claim of right may be asserted in cases involving two specific types of larceny: larceny by trespassory taking and larceny by Embezzlement. Under New York Penal Law 155.00, one way a person commits larceny by Embezzlement is when he or she is entrusted with a piece of property by the property's owner, and subsequently keeps it without the owner's permission. A person commits larceny by trespassory taking when he or she takes a piece of property from its owner and uses it for a period of time, no matter how long, in a manner inconsistent with the owner's rights. Under New York Penal Law 155.15, it is a defense to both crimes if the person that took the property did so "under a claim of right made in good faith." In other words, if the defendant honestly believed that he or she had the owner's permission to take the property in question, the defendant's criminal conduct can be excused.

In People v. Zona, 60 A.D.3d 1279, the Court elaborated upon when a defendant may assert that property was taken under a claim of right. In Zona, a high ranking member of the sheriff's department instructed several lower-ranked officers to transfer department property from one warehouse to another. After the job was completed, one lower-ranked officer claimed that his superior took several items from the warehouse and instructed the subordinates that they, too, could take whatever they wanted in storage there. The lower-ranked officer took several items, including five new tires, a boat that contained a bullet hole, and a filing cabinet.

The officer brought the tires to a tire store, where he exchanged them towards the purchase of a different set of tires. Subsequent to the purchase, the officer discovered that although his superior had told the subordinates they could take anything stored in the warehouse, he actually had no authority to give away the department's property. Upon learning this, the defendant promptly returned the boat and the filing cabinet. When he tried to recover the tires, however, he was told that they had already been sold. Determined to find replacements, he purchased five comparable tires and returned them to the warehouse. Some time later, authorities from the department conducted an investigation into the missing property. When the replacement tires were discovered, the officer was charged with one count of petit larceny, a misdemeanor.

Before trial, the defendant requested a dismissal of the indictment against him. He argued that he honestly believed that he could take the property stored in the warehouse, and that the prosecutor's failure to properly instruct the grand jury on the good faith claim of right defense unfairly prejudiced him. The Court denied the defendant's request, holding that the defendant, "could not assert that he had at any time owned or possessed the property procured from the storage facility." At trial, the defendant similarly requested that the Court instruct the jury on the claim of right defense, but he was once again denied. The defendant was convicted, but appealed based on the Court's repeated denials of his request.

Ultimately, the New York Court of Appeals reversed the trial court's decision. The Court began by rejecting the notion that a defendant must establish that he or she previously owned or possessed the property in question in order to assert a claim of right defense. The Court explained that nothing in the language of New York Penal Law 155.15(1) required that the statute be interpreted in this manner. Therefore, if the evidence reflected that the defendant was entitled to an instruction on the claim of right defense, the trial court's failure to do so guaranteed him a new trial.

Next, the Court evaluated whether the evidence presented entitled the defendant to a jury instruction on the defense. The Court explained that when a trial court evaluates evidence for the purposes of a jury instruction, it must be viewed in the manner that is most favorable to the defendant. After reviewing the evidence presented at trial, the Court determined that the sheriff's statement that the ranking officer had told him he could take the property, if credible, was sufficient to establish that the defendant believed he had permission to do so. The trial court should have viewed this statement in its most favorable light - thus, the statement should have been considered credible. Consequently, the Court of Appeals found, the defendant was entitled to a jury instruction that he was acting under a claim of right, and the defendant was granted a new trial.

Obviously, the above case and statute may or may not be a useful weapon in your arsenal when accused of Grand Larceny or some other New York theft crime. To learn more about these crimes, defenses and statutes, either follow the links above or go to the blogs and websites found below.

Established by to former New York County Assistant District Attorneys, the New York criminal lawyers and former Manhattan prosecutors at Crotty Saland PC represent those accused of larceny and stolen property crimes through New York City and the neighboring suburbs.

DA: "Slush Fund" Attorney, Robert Cassandro, Perpetrated $4.6 Million Ponzi Scheme Against Own Family

Wed, 14 Mar 2012 18:45:29 -0500

If alleged "Mommy Pimp," Anna Gristina, is sitting on Rikers Island unable to make $2 million bail in a one count indictment without a threat of a mandatory prison sentence, one can only assume that Long Island attorney, Robert J. Cassandro, will be resting his head on New York City issued pillows for the foreseeable future as well. However, those who would make such an assumption would be would be wrong as Cassandro posted $50,000 bail in a case of much greater magnitude in terms of penalty and criminal liability. According to Manhattan District Attorney Cyrus Vance, Jr., prosecutors obtained an arrest and indictment of Cassandro for a Ponzi scheme that netted him $4.6 million dollars despite the fact that the alleged properties that were the centerpiece to the fraud and the defendant himself were located outside the jurisdiction. Charged with Scheme to Defraud in the First Degree (New York Penal Law 190.65) and Grand Larceny in the First Degree (New York Penal Law 155.42), Cassandro cannot avoid incarceration should he be convicted.

Prosecutors claim that Cassandro committed his Ponzi scheme by lying to investors - family and friends - in order to convince them to invest in a business building single family homes on Long Island. Despite his promises that that money was secured, the New York County District Attorney's Office believes that quite the opposite occurred. Unbeknownst to these "investors," Cassandro allegedly defrauded them by offering the same investment and loan scheme to others. As a result, Cassandro pocketed these monies that far exceeded what was actually needed for the projects. Instead of providing the lenders with security that had been promised, Cassandro gave the mortgages on these properties to others as well. Compounding matters, it is alleged that Cassandro deposited millions of dollars into his escrow account. It was this escrow account, according to DA Vance, that Cassandro used as his own "slush fund" for expenses such as the mortgage on his own home, country club dues and personal credit cards.

While the Scheme to Defraud charge is a serious offense, it is "only" an "E" felony punishable by as much as four years in prison. The bigger issue for Cassandro is that he faces a "B" felony for Grand Larceny in the First Degree. If prosecutors can establish that his theft exceeded $1 million and he either pleads to this offense or is convicted after trial, a judge is required to sentence him to at least one to three years in state prison. Even worse, a judge can sentence Cassandro to as much as eight and one third years in prison to twenty-five years.

Whether Cassandro is acquitted, convicted or pleads guilty to a lesser offense, he will certainly have collateral issues beyond the criminal case. It is likely that the victims of his alleged crime will seek to claw back the ill gotten gains. Additionally, if they have not done so already, prosecutors will likely freeze many of his bank accounts and assets. Further, at a minimum, Cassandro's career as a practicing attorney and lawyer on Long Island are in jeopardy. In a slightly ironic twist, according to Cassandro's website, which is now offline, Cassandro focused his practice on "...business and real estate transactions...and estate planning/asset protection." Unfortunately for the victims of this alleged itsy-bitsy-tinnie-winnie Madoff, the irony of failed asset protection is likely not lost on them.

To educate yourself on the statutes, defenses, punishment and legal decisions on New York theft and larceny crimes, follow the link above or review the websites and blogs below.

Founded by two former prosecutors who served in the Manhattan District Attorney's Office, the New York criminal defense attorneys at Crotty Saland PC represent clients in white collar crimes throughout New York City and the surrounding suburbs.

New York Extortion Crimes: Further Understanding & Defining Blackmail in NYC & Beyond

Mon, 12 Mar 2012 06:54:47 -0500

When we think about a New York larceny (whether it be Petit Larceny or Grand Larceny), most people's minds immediately conjure up images of black-clad, ski-masked villains entering homes or businesses and making off with other people's property (technically, that's actually a Burglary). There are, however, ways that a person can commit larceny without ever donning a ski-mask or even wearing black (surprised?!?!). In New York, a person commits larceny when he or she steals property. Under penal law §155.05, stealing is defined as taking, obtaining, or withholding another person's property with the intent to deprive that person of it. While "taking" someone's property generally fits the preconceived notion of how one might commit larceny, other ways in which a person may "obtain" or "withhold" property often do not. One method by which someone might steal property in New York by "obtaining" it, for instance, is through Extortion.

Under NY PL 155.05, a person commits New York Grand Larceny by Extortion when he or she compels or induces another person to give up their property by instilling fear that, if the property is not given, the person will injure them, damage their property, commit a crime, expose a secret, testify against that person, abuse a position as a public servant, or perform any other act intended to harm that person. Though it may seem counter-intuitive that, despite the coercion, a person can be charged with "stealing" something that has been been given to them, a larceny by Extortion is treated no differently in New York than any other type of theft.

In People v. Graves, 12 Misc.3d 516, a woman claimed that a person stole her cell phone from out of her purse. The day after the alleged theft, the woman called the phone and, to her surprise, the alleged thief answered. The woman asked him to return her property, but he informed her that he would only do so if she paid him $160. He provided a time and a location for the proposed exchange, and ended the call. Rather than paying him, the woman notified the police. When the thief arrived the following afternoon to collect his money, he was promptly arrested (shockingly, he didn't see that one coming a mile away).

For his actions, the defendant was charged with Coercion in the Second Degree and Criminal Possession of Stolen Property in the Fifth Degree, both misdemeanors. A person is guilty of Coercion when he or she forces another person to do something by instilling fear that, if the demand is not complied with, the person will damage their property, commit a crime, expose a secret, testify against that person, abuse a position as a public servant, or perform any other act intended to harm that person. A person is guilty of Criminal Possession of Stolen Property in the Second Degree when the person knowingly possesses stolen property.

Before trial, the defendant filed a motion to dismiss the Coercion charge. In his motion, he argued that he hadn't threatened to damage the woman's cell phone and, therefore, the factual allegations against him did not support the charge. The Court rejected this argument, reasoning that although the defendant did not threaten to damage the property, his demand for $160 came with the implied threat that if the money was not paid, he would keep the cell phone. In the Court's reasoning, withholding the property, while not physically damaging, was the "severest form of damage," as it completely deprived the owner of the property's value and foreclosed any hope of repairing it.

The Court continued to explain that, even if withholding the property could not be considered "damage", the charge would nonetheless stand. Assuming, as the complaint alleged, that the defendant stole the phone, the subsequent threat made by the defendant constituted, "a withholding of the property with the intent to deprive the owner of a major portion of its economic value or benefit." In the Court's reasoning, this was actually sufficient to establish the crime of larceny by Extortion.

As the Court explained, a person can also be found guilty of Coercion when he or she forces a person to do something by threatening to commit a crime. When the defendant threatened to keep the phone if she didn't pay, he threatened to commit larceny by Extortion. As a result, the defendant's motion to dismiss the charge was denied and the Court granted prosecutors leave to pursue further charges, including larceny by Extortion, against the defendant.

To learn more about the crimes listed above, including New York Blackmail and Extortion, follow the highlighted links to the NewYorkTheftAndLarcenyLawyer.Com website where there a significant amount of legal analysis on New York theft and larceny offenses can be found.

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