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The court dismisses the indictment with much regret

The criminal defendants and complainants own a four- floor residential real property located at 1458 51st Street in Kings County. The defendants own a two-thirds share of the property and the complainants own a one-third share. The separate deeds that conveyed the property, however, do not specify ownership in any particular portion of the house; rather the deeds refer only to the percentage share each owns in the entirety of the property.

The defendants were charged with grand larceny in the second degree for allegedly stealing the complainants’ one-third share of the property by forging a deed resulting in the improper transfer of the complainants’ interest in the property to the defendants.

The issue presented to this court is whether the defendants may be lawfully charged with grand larceny. For the reasons that follow this court finds that they may not and the indictment must be dismissed—the law is well settled that a joint or common owner of property cannot steal from another joint or common owner of that property as the victim of the “theft” does not have a superior right of possession, a required element of larceny.

Penal Law § 155.05 (1) provides that “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.”
The term “owner” is defined in Penal Law § 155.00 (5) as one who has a right to possession [of the property taken] superior to that of the taker, obtainer or withholder.

A significant limitation on the status is set on this definition by providing that a “joint or common owner of property shall not be deemed to have a right of possession thereto superior to that of any other joint or common owner thereof.” A joint or common owner of property, therefore, may not be charged with larceny for stealing from another joint or common owner as the victim of the theft is “deemed” to have an equal and not a superior right of possession. A joint or common owner of property cannot be guilty of larceny for taking commonly held property. He may be liable for civil damages for conversion of the like, but he is not criminally liable. If property owned by two or more people is taken by one owner, he or she cannot be convicted of larceny.

The principle behind this rule is that if one is an owner of property and entitled to possession at the time of the taking, there can be no larceny. The larceny statute “cannot properly be read to require merely the intent to take property, rather than the intent to take property from a person with a superior right to possession.

The notion that joint or common owners of property cannot be charged with larceny is firmly rooted in common law as held in People v Zinke. At common law, no less than today, the requirement that the victim of a theft be an “owner” of the stolen property was an indispensable element of the crime of larceny. The rationale behind this requirement was that the property alleged to be stolen had to “belong” to a party other than the accused. If the defendant was the owner of the property and entitled to possession at the time of the taking, there could be no larceny. From this principle emerged the rule that if property was owned by two or more persons, none of the owners could commit larceny from the others. In the words of Lord Hale: “Regularly a man cannot commit felony of the goods, wherein he hath a property.
As noted in Zinke (People v Zinke, 76 NY2d at 12) that when the present Penal Law was enacted in 1965, the Legislature had the option of rejecting the common-law view of larceny with respect to ownership by adopting the Model Penal Code’s approach that permitted a larceny prosecution to lie even if the alleged thief had an ownership interest in the stolen property. According to Zinke, the Model Penal Code defined larceny as:

“stealing `property of another,’ which was in turn defined as property `in which any person other than the actor has an interest regardless of the fact that the actor also has an interest in the property.’ (Model Penal Code § 223.0 [7].) The purpose of this provision was to permit `a person ordinarily considered the owner of property to be convicted of theft.'”

The Legislature rejected the Model Penal Code approach and instead codified its own existing rule” by drafting Penal Law § 155.00 (5) to provide that “`a joint or common owner of property shall not be deemed to have a right of possession thereto superior to that of any other joint or common owner thereof.’ Since one who holds a joint or common interest in property does not have an interest therein superior to that of another joint or common owner, it has long been the law of New York that one cannot legally `steal’ from the other even if the latter has lawful possession at the time of the taking.” The law is well settled that a joint or common owner of property cannot be prosecuted for larceny for stealing property from another joint or common owner.

Going back to this case, the evidence before the grand jury shows that the defendants, by way of a forged deed, stole the complainants’ one-third interest in the subject property. As the Legislature has chosen to adopt the common-law view of larceny with respect to ownership, the court, in order to determine whether a larceny prosecution may lie, is required to analyze the relationship between the parties with respect to the subject property.

The deed provided that the defendants held a two-thirds interest in the property and the complainants held a one-third interest in the very same property. The agreement provides that the defendants and complainants “are the owners of the real property known and designated as 1458 51st Street, Brooklyn, New York” and that the defendants “have a two-thirds interest in said property” and the complainants “have a one-third interest in said property.” The 1987 agreement recognizes that the complainants and the defendants are both owners of the subject property by providing that if “any of the owners” wished to sell their interest in the premises, the owner wishing to sell had to offer a right of first refusal to the nonselling party. Their common ownership rights were further memorialized by paragraph 9 of the 1987 agreement which provides that the parties “shall not be responsible for any and all expenses attributable to more than his/their ownership interest share in the property.

The only unity required for a tenancy in common is that of unity of possession, i.e., tenants in common may receive their respective interests by different instruments of conveyance, at different times, and their interests need not be equal either in size of share or in quantum of estate. Albeit the “distinguishing feature” of a tenancy in common “is the right of each cotenant to use and enjoy the entire property as would a sole owner, tenants in common may agree to forgo this right by contracting otherwise. Despite the basic concept of unity of possession inherent in tenancies in common, tenants in common are competent to agree among themselves that one of them shall have exclusive possession of the common property, thus a fortiori the tenants have the right to divide the possession of the freehold in any manner they desire. When the owner of a tract of land conveys a part thereof, without designating or attempting to designate the part so conveyed, the grantor and grantee will become tenants in common of the whole tract, in proportion to the respective quantities of each.

Finally, under New York law, there is a statutory presumption that a disposition of property to two or more persons creates in them a tenancy in common, unless expressly declared to be a joint tenancy. A tenancy in common is the most common of all concurrent estates and is favored by a statutory presumption which must be rebutted by the expressed intent of the parties.

As a married couple, the defendants in this case, hold their two-thirds interest in the property with respect to one another as tenants by the entirety. Likewise, the complainants, who are also a married couple, hold their one-third interest in the property as tenants by the entirety with respect to one another. The relationship between the defendants and complainants with respect to their two-third/one-third interest in the property is as tenants in common in that the parties are each vested with the right to possess the property but do so without the right to survivorship. Indeed, the conveyance documents place no limitation on the rights of the defendants and the complainants to each occupy the entirety of the property and the fact that the parties agreed to forgo their respective “rights to use and enjoy the entire property” by contracting in the 1987 agreement to occupy only certain floors of the subject premises did not negate the existence of a tenancy in common. Nor was the existence of the tenancy in common compromised by the fact that the parties held unequal shares in the property and received their respective interests by different instruments of conveyance at different times. Moreover, as the interest that the parties share in the subject property cannot be characterized as either a joint tenancy, tenancy by the entirety or severalty, New York law deems the relationship to be a tenancy in common. A disposition of property to two or more persons creates in them a tenancy in common, unless expressly declared to be a joint tenancy.
In consonance with the agreement entered into by the parties, the defendants and complainants are joint and common owners of the home located at 1458 51st Street as tenants in common. As such, neither is “deemed” by Penal Law § 155.00 (5) to have a superior interest in the subject property. The defendants and complainants hold the subject property together as tenants in common, thus immunizing the defendants from a larceny prosecution. Indeed, such result is consistent with the plain and unambiguous language of the Penal Law which provides that a larceny prosecution may not lie against a “joint or common owner of property.”

The People’s argument that even if there is technically a tenancy in common between the complainants and defendants, the rule prohibiting larceny prosecutions in this context should not apply as the complainants have a superior right to possess their one-third interest in the property. While this argument is not without appeal, and has in fact been adopted in many jurisdictions, it is not the law in New York, where the Legislature has chosen to codify the common-law view of larceny with respect to ownership.

The court dismisses the indictment with much regret for it defies logic that the defendants are able to escape criminal liability based on technicalities on principles of property law and outdated notions of criminal justice.

The defendants’ motion to dismiss the indictment is granted.

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