Larceny Lawyer NYC

What is Larceny in NYC?

“Larceny” is the name New York law gives to theft-related crimes. The elements of Larceny are:

• Knowingly and intentionally depriving or appropriating;
• By taking, obtaining or withholding;
• Property (tangible or intangible);
• That belongs to another owner; and
• For an extended period or permanently

Depending on the type of property allegedly taken, the circumstances of the alleged taking and the value of the property, Larceny may be either a misdemeanor or a felony. Most Larceny charges are based on the mere value of the property that is allegedly taken. The value of the property, under Penal Law Section 155.20, is either the fair market value at the time and place of the alleged Larceny or, the cost of replacement of the property, if the value cannot be successfully ascertained.

New York Larceny Degrees

Elements of Larceny Charges in New York

As stated above, there are several elements of a Larceny charge that require additional explanation. All of these elements must exist to charge a person with Larceny in New York and to continue the prosecution.

First, the intent to deprive or appropriate. Larceny requires an intent to either deprive another of property or to appropriate property for himself, herself or a third person. Both terms mean a purpose to permanently exert control over property or to cause a permanent loss to the property owner. It is not enough to use or take property from an owner for temporary or short-term use.

New York defines depriving another of property under Penal Law Section 155.00(3) as “(a) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him, or (b) to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property.”

Under Penal Law Section 155.00(4), appropriating the property of another means “(a) to exercise control over it, or to aid a third person to exercise 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, or (b) to dispose of the property for the benefit of oneself or a third person.”

Whether an owner if deprived of property permanently or if the property is appropriated permanently is a question of fact.

Second, where Larceny charges are concerned, the property has abroad meaning. New York defines property under Penal Law Section 155.00 “any money, personal property, real property, computer data, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation.”

For New York Larceny charges, property can mean anything tangible or intangible. Property even includes intangible rights such as the right of a person to occupy an apartment, contractual rights of companies to perform services and a savings account passbook.

Third, Larceny charges in New York also require a person wrongfully to take, obtain or withhold property from its owner. While a person’s intent must be to deprive an owner of property permanently, the taking, obtaining or withholding, needs only to be temporary. Whether the property is taken, obtained or withheld, may depend on the type of Larceny that is alleged. For example, property is allegedly wrongfully taken by trespass, such as carrying away the property of another. This is the most common form of Larceny charges in New York. To prove a taking, all that is necessary is a momentary showing of dominion and control over the property that is allegedly taken. Asportation, the movement of property from one place to another, is another factor in showing a taking. However, asportation is not necessary to prove a taking for Larceny charges. Property is alleged wrongfully obtained by trick or false promise when issuing a bad check. Property is allegedly wrongfully withheld by taking property by embezzlement.

Fourth, the owner of property is defined in Penal Law Section 155.00(5) as “any person who has a right to possession thereof superior to that of the taker, obtainer or withholder.” This, like the other definitions for New York Larceny charges, is quite broad. An owner is any person who has the right to possess property, however limited or contingent.

Types of New York Larceny Charges

The general term “larceny” covers a variety of related crimes, carrying a range of penalties. New York does not have unique crimes for each type of larceny such as extortion or larceny by trick or trespass. Rather, New York denies all types of Larceny under the umbrella of Larceny itself.

Under Penal Law Section 155.05, New York lists five categories of Larceny that fall under this umbrella:

• By conduct heretofore defined or known as common law larceny by
  • Trespassory taking;
  • Common law larceny by trick;
  • Embezzlement; or
  • Obtaining property by false pretenses;
• By acquiring lost property;
• By committing the crime of issuing a bad check;
• By false promise; or
• By extortion

Larceny Charges With Other Charges in New York

Larceny charges in New York may often be charged in association with other charges. The most frequently charged crime in association with Larceny charges in New York is Criminal Possession of Stolen Property. If a person is accused of Larceny and allegedly possesses or has dominion and control of the property, then the Criminal Possession of Stolen Property will also be charged. The 5 degrees of Criminal Possession of Stolen Property charges track with the degrees of Larceny charges, except Petit Larceny charges, which is equivalent to Criminal Possession of Stolen Property in the Fifth Degree.

Other commonly crimes commonly charged with Larceny include:

• Robbery
• Burglary, more commonly known as Trespass Burglary
• Assault
• Criminal Possession of a Forged Instrument
• Identify Theft

Defenses to Larceny Charges in New York

With any criminal charges, it is always a defense that a person did not commit the alleged act or acts. The high burden to prove a person committed any crime is proof beyond a reasonable doubt, which is a high standard. In addition, there are two important defenses built into the Larceny charges in New York under Penal Law Section 155.15.

The first defense is specific to larceny by trespass, which is what people commonly refer to as sealing, and the embezzlement, which is the wrongful taking of assets, such as money when a person is entrusted to hold such assets on behalf of an owner. The second defense is specific to embezzlement charges. Both defenses are known as affirmative defenses. That means that the burden to prove the defense falls on the person charged. However, unlike the high standard that is on the prosecution to prove criminal allegations, which is proof beyond a reasonable, the burden for a defendant to prove an affirmative defense is by a preponderance of the evidence. That means that the claim is more likely than not likely, only 51%. The Larceny affirmative defenses largely depend on the credibility of the witnesses who testify in support.

First, in “any prosecution for larceny committed by trespassory taking or embezzlement, it is an affirmative defense that the property was appropriated under a claim of right made in good faith.” That means that it is a defense to Larceny if a person is charged with trespassory taking or embezzlement if a person can show that there was a good faith basis to believe that he or she was the owner of the property. The standard to show good faith is subjective and not an objective reasonableness test.

Second, in “any prosecution for larceny by extortion committed by instilling in the victim a fear that he or another person would be charged with a crime, it is an affirmative defense that the defendant reasonably believed the threatened charge to be true and that his sole purpose was to compel or induce the victim to take reasonable action to make good the wrong which was the subject of such threatened charge.” The affirmative defense has two prongs. First, a reasonable belief that the threatened charge to be true. Unlike the first affirmative defense, the standard is objective reasonableness and does not solely rest on what a person subjectively believed. Next, the only purpose for instilling the fear was to take reasonable action to right the wrong of the threatened charge. Once again, the test is objective reasonableness.

Larceny Charges and Drug Diversion in New York

An experienced and knowledgeable defense attorney is often able to obtain a favorable disposition, especially if a person has never been arrested before or has a minimal criminal history. In some cases involving Grand Larceny charges, a defense attorney may suggest Drug Diversion or Judicial Diversion as an option. This is especially the case when the evidence against a person tends to be strong.

Drug diversion allows the person to treat alcohol and substance abuse dependency and have the charges dismissed leaving the person without a criminal record relating to the charges.  Both Grand Larceny in the Fourth Degree and Grand Larceny in the Third Degree are eligible for Drug Diversion. The process for Drug Diversion begins with an assessment to see what if any substance abuse treatment a candidate would need and that there is a nexus between the charges and the substance dependency. After the assessment, a Court must make a finding that:

• A person has a history of alcohol or substance abuse or dependence;
• The alcohol or substance abuse or dependence is a contributing factor to the charges;
• Such abuse or dependence could effectively be addressed in judicial diversion; and
• Institutional confinement is or may not be necessary for the protection of the public.

The downside of Drug Diversion is that a person must plead guilty to a felony charge such as Grand Larceny before beginning treatment and agree to a jail term if he or she is unsuccessful. Then, the patient must successfully complete a program that is tailored to an individual’s treatment needs. Such treatment usually consists of at least 12 months of treatment, beginning with in-patient detox.