Theft Offenses

August 8, 2011

Stealing Money You Never Had: Determining the Degree of Grand Larceny in a Fraudulent Bank Deposit & Theft Scheme

On its face, the Grand Larceny statutes in New York are relatively straightforward. That is, a simple review of various sections of the New York Penal Law may not require the assistance of a New York theft attorney or grand larceny lawyer. Although the statutes may seem clear, what becomes confusing are the various legal decisions that may impact an arrest, indictment or conviction for crimes including New York Penal Law section 155.30 or 155.35. It is theses decisions that may make a non-defense a viable one or a seemingly easy defense one that will not assist you in your case.

In a relatively unique fact pattern, what if you are alleged to have stolen from a bank by depositing bogus checks directly with a teller or empty envelopes into an ATM machine? As a result of your fraud, the bank credits your account the amount of the deposit you claim you made. Therefore, until the bank recognizes that you falsely inflated your account with these valueless deposits, you have access to money that is not truly in the account or even in existance. Knowing you have access to fraudulently obtained funds, you withdraw money from the account. In such a situation, the issue is fairly simple. Is the value of the theft, and as a result the degree or level of your crime, determined by the amount you fraudulently deposited without actual financial backing or the amount withdrawn by you in excess of your legitimate balance? Fortunately, People v. Esquilin, 37 A.D.3d 197 (1st Dept. 2007) addresses just that.

July 26, 2011

New York Penal Law 155.35(2): Grand Larceny of an Automated Teller Machine or Contents

by Jeremy Saland

The most commonly prosecuted Grand Larceny cases in New York revolve around the value of the property in question. Whether there is a theft by embezzlement, trick or extortion, the degree of the Grand Larceny often relates directly to that value. For example, should you steal $2,000 from an employer by embezzlement or trick someone into giving you $2,000 in exchange for a item with no value, your arrest charge would likely be Grand Larceny in the Fourth Degree pursuant to New York Penal Law 155.30(1) because the value of the theft exceeded $1,000, but was less than or equal to $3,000. In such a case,

In 2010, however, the New York State legislature added a new charge that New York criminal defense attorneys must fight against. Now, should you steal that same $2,000 your crime may be raised a degree to the more serious Grand Larceny in the Third Degree. According to New York Penal Law 155.35(2), one is guilty of Grand Larceny in the Third Degree if the property one steals is an automated teller machine (ATM) or the contents of an automated teller machine. Examining this statute further, regardless of the value of the physical ATM, if you hijack that ATM from a convenient store, bodega, or any other establishment, your crime automatically is a “D” felony even if the value of that ATM is $750 or $2,000 dollars. Furthermore, the contents of the ATM are also subject to this statute. Therefore, it appears that if you withdraw funds from an ATM, let’s say $750 for the purpose of this hypothetical, and you are stealing these funds from another person, you would also be guilty of Grand Larceny in the Third Degree based on this statute. Compounding matters, if you perpetrate this crime a second time in a five year period or this is merely your second Grand Larceny, you would also face the elevated offense New York Penal Law 155.43, Aggravated Grand Larceny of an Automated Teller Machine. A “C” felony, Aggravated Grand Larceny is punishable by up to fifteen years in state prison while the “D” felony is punishable by up to seven years in state prison .

June 29, 2011

Voiding an Arrest in a New York Shoplifting, Weapon or Drug Case: NY CPL 170.55 & the ACD “Nullity”

by Jeremy Saland

Often times, prosecutors in the New York City area (Manhattan, Brooklyn, Bronx, Queens and Westchester Counties) offer first time shoplifters as well as those accused of other thefts, weapon crimes and personal drug possession, a violation of Disorderly Conduct (New York Penal Law 240.20). Depending on the facts and circumstances, a “Dis Con” could be a tremendous disposition. However, such a violation does have its draw backs. One of the most common is that a Disorderly Conduct may seal, but may show up on a background check. The other issue with a Disorderly Conduct is that while you will not have to ever state you were convicted of a crime, you technically have been arrested. Therefore, should an employer or an employment application ask whether you have ever been arrested, you will have to answer in the affirmative.

As I have written time and time again (and fought for my clients in each and every case of this nature), it is often worth one’s time to reject a Disorderly Conduct and fight for an adjournment in contemplation of dismissal or ACD. In these cases, not only is there no conviction of any kind, but the case is both dismissed and sealed in six to twelve months depending the nature of the underlying offense. Another benefit that is often not addressed is equally important.

June 6, 2011

Legal Impossibility: Can a Conviction Stand for Possessing Stolen Property if the Property is Part of a Police Sting

by Jeremy Saland

In New York State, if you knowingly possess property and that property is held by you for your benefit or to impede its recovery by the rightful owner, then the crime of Criminal Possession of Stolen Property has been perpetrated. This is true whether the possession of the property is in the context of taking a wallet off of a bar in White Plains, taking cash from a table at a restaurant in Brooklyn or shoplifting from a department store anywhere in New York City. Having said that, there is an interesting and critically important fact that can downgrade your offense. In other words, if you are charged with the “A” misdemeanor of Criminal Possession of Stolen Property in the Fifth Degree (New York Penal Law 165.40), the crime may be knocked down to a lesser “B” misdemeanor of Attempted Criminal Possession of Stolen Property (New York Penal Law 110/165.40). The legal concept that forms the basis of this downgrade is known as legal impossibility. Often times this legal concept occurs in the area of sting operations set up by the police, but is not exclusive to sting operations.

The Court of Appeals, the highest level court in the State of New York, has grappled with the issue of legal impossibility in the past and has done so specifically in the context of Criminal Possession of Stolen Property. In People v. Zaborski, 59 N.Y.2d 863 (1983), the Court upheld or re-affirmed a lower appellate court’s decision that where police set up a sting involving the fencing of stolen property by supplying the property that was previously stolen, the completed crime of Criminal Possession of Stolen Property was not perpetrated and could not be perpetrated. The Court stated that “[a]t common law, goods once stolen but recovered and used by police for a subsequent sale were held to be no longer stolen, and a person who then received the goods could not be prosecuted for either receiving or attempting to receive stolen goods.” Simply put, you cannot steal property that is not in fact stolen even though at one point it may have been. The Court further elaborated on the issue of legal impossibility and stated that “[a]lthough the goods sold to defendant were burglary proceeds, upon their recovery by police they lost their taint which thereby made it legally impossible for defendant to possess stolen property. It is irrelevant that, at the time of the sale to defendant, the true owners of the property had not been located; from the time of recovery, the police were, in effect, agents of the rightful owners holding the property on their behalf.”

May 19, 2011

Legal Analysis of Shoplifting Arrests in New York City: Further Information on Getting Arrested without Exiting a Store

by Jeremy Saland

One of the first things you may have said to your criminal lawyer after getting a Desk Appearance Ticket for shoplifting in New York City is something along the line of “I didn’t even walk out of the store and the police arrested me for shoplifting! How can that be?!” While this is a fact based question and answer (where were you specifically, where was the property concealed if at all, did you bypass the cash register, etc.), there is also a purely legal view of this question and answer as well.

Because merely an arrest for shoplifting (New York Penal Law 155.25 and New York Penal Law 165.40) can have grave consequences on the careers of professionals such as teachers, financial services employees, lawyers and doctors, it is imperative that your counsel take the time to explain how it is legally possible to be convicted of shoplifting without ever stepping foot out of the store.

May 8, 2011

$32,000 “Criminal” Bank Error: Client Avoids Prosecution After New York Detective Seeks Arrest for Grand Larceny

by Jeremy Saland

The New York Grand Larceny lawyers and former Manhattan prosecutors at Saland Law PC are pleased to announced that our client avoided both arrest and prosecution for allegedly stealing approximately $32,000 from a bank. Detectives in a New York City suburb had sought out our client for arrest after bank officials learned our client accessed an account that she did not have permission to utilize. During a few month period, our client allegedly withdrew tens of thousands of dollars.

Although a detective asked our client to surrender for her arrest, we argued that a bank error, and not fraud or theft on our client’s part, precipitated the alleged crime. In fact, we argued that her actions may not have been criminal. Specifically, the bank opened a sub-account under our client’s main account in error. There was no accusation that our client fraudulently opened the account or was involved in opening the account in any manner. One of our New York criminal lawyers argued that our client believed this was a line of credit or an account which she had permission to access. Fortunately, after discussions with counsel for the bank and with the detective, the bank agreed to withdraw any charges of Grand Larceny once our client paid back the money that she withdrew. Not only did our client avoid an acknowledgment of wrongdoing and an arrest for a “D” felony (New York Penal Law 155.35), but she circumvented any issues with her career and employment. Our client had faced up to two and one third to seven years in prison if arrested and convicted.

April 17, 2011

New York Criminal Lawyers Keep Client Out of State Prison After Two Indictments Charging Enterprise Corruption, First Degree Grand Larceny and Other Crimes

by Jeremy Saland

The New York white collar criminal defense attorneys and former Manhattan prosecutors at Saland Law PC are pleased to announce a successful disposition for a client charged in an alleged Enterprise Corruption and Grand Larceny scheme involving multiple millions of dollars. Our client, a physician, had been indicted by a New York County Grand Jury for his alleged involvement in a scheme to perpetrate insurance fraud. It was claimed by prosecutors that phony patients would see the physician as well as his colleagues and that the physician would fraudulently bill medicaid. In all, the State of New York claimed our client, in concert with other physicians and specialists, bilked the government out of more than six million dollars.

Compounding matters, prosecutors alleged in a second indictment that our client had violated a restraining order after much of his assets were frozen. It was alleged that our client accessed certain monies without prior permission. The second indictment charged Contempt and Falsifying Business Records. Our client faced up to eight and one third to twenty five years in prison on the First Enterprise Corruption and Grand Larceny indictment and a consecutive one and one third to four years in prison on the second Contempt and Falsifying Business Records Indictment.

March 13, 2011

I Used a Credit Card that Belonged to Someone Else: Potential Criminal Charges in New York Part I

by Jeremy Saland

Do I need a New York criminal lawyer? I found a credit card in Manhattan and used that credit card to buy a pair of jeans at Macys for $175. I took my friend’s credit card and purchased $600 worth of makeup and other accessories in a Brooklyn store without my friend’s permission. I used a credit card that was fake and had another person’s account number programmed on to it. What is “credit card fraud” and did I commit it? Can I be charged with a felony or go to prison? What are the crimes and potential charges in New York City for credit card fraud?

The following blog entry is a brief analysis of the potential crimes in New York State relating to credit card theft and possession, use of a stolen credit card, counterfeit and fake credit cards and other offenses. These potential crimes range from “A” misdemeanors punishable by up to one year in jail to “D” felonies punishable by up to seven years in state prison.

March 4, 2011

Arrested & Given a Shoplifting Desk Appearance Ticket for New York Penal Law 165.40 & 155.25: The Trespass Notice

by Jeremy Saland

You were arrested in Manhattan, Brooklyn or Queens and given a shoplifting Desk Appearance Ticket (DAT or D.A.T.) charging you with New York Penal Law 165.40 (Criminal Possession of Stolen Property in the Fifth Degree) or New York Penal Law 155.25 (Petit Larceny). You are a teacher, lawyer, physician or you work in finance. The collateral consequences beyond a conviction are enormous for you in terms of your career. Compounding matters, when store security grabbed you and brought you into the backroom, they bullied you into signing a “Trespass Notice” and financial forfeiture or restitution agreement. Even worse, they just snapped a photo of you with a digital camera. It is fairly clear that you need a New York criminal lawyer to advance your best defense to avoid any blemish on your clean record, but you need to discuss with that shoplifting New York criminal defense attorney what you just signed away in the backroom of Macys, Bloomingdales, Century 21 or any other department store in New York City.

What is the Trespass Notice

March 3, 2011

Embezzlement and Grand Larceny Crimes: Finding the “Best” New York Criminal Defense Lawyer or “Right” Attorney

by Jeremy Saland

You have been arrested or indicted for Grand Larceny and Embezzlement in New York. Maybe the case has not reached that point, but you are the target of an Embezzlement and Grand Larceny investigation by New York City prosecutors or law enforcement in the surrounding counties. The fear you have is almost paralyzing. What will happen to me? Will my career be destroyed? Will friends and family find out? Will I go to prison?

While the questions may be numerous and differ from person to person, one question is unavoidable. How do I find the right New York Embezzlement criminal lawyer or New York criminal Grand Larceny attorney? Prepare yourself. You may only have one chance to answer this question correctly.