Larceny is what most people think of as common theft: it is the taking of someone else’s property without the use of force from a location other than inside their home. Car theft forms a typical instance of larceny. The offense developed under the common law, but most states that still recognize the crime of larceny have codified its elements into their penal code. While each state has its own definition of criminal larceny (or theft), most of them incorporate the following elements in some form.
The Elements of Larceny are the following:
• The unlawful taking and carrying away of Someone else’s property
• Without the consent of the owner and with
• The intent to deprive the owner of the property permanently
After a conviction for larceny (also called theft, depending on the state), the trial concludes with the sentencing phase to determine penalties and conditions of the conviction. At sentencing, a number of factors come into play to determine what penalty the defendant will receive. Those factors include the sentencing range laid out in the law itself, aggravating and mitigating factors and, for criminal larceny convictions, whether the crime amounted to grand or petit larceny.
In New York there are several degrees of grand larceny, determined mostly by the value of the stolen property. The penalties for these degrees of grand larcenies range from one to twelve years imprisonment, subject to a judge’s discretion. Petit larcenies, however, are misdemeanors and punishable by a prison term of up to a year.
In one case, defendant pled guilty in Bronx Supreme Court to Grand Larceny in the Third Degree (PL §155.35) in exchange for a promised indeterminate sentence of from 1 to 3 years imprisonment. On August 8, 1990, the Court sentenced Defendant to the promised sentence. Defendant did not file a notice of appeal and otherwise has fulfilled the terms of that sentence. However, Defendant is currently serving a 30 year sentence, imposed in 2006, for his conviction of “conspiracy to commit murder for hire and distribution and possession of cocaine” in the Southern District of New York.
Relying on Padilla v. Kentucky, 599 US 356 (2010)[FN1] but not claiming any immigration consequences related to the plea or that he is not a United States citizen, Defendant moves to vacate the New York grand larceny conviction. He alleges that he received ineffective assistance of counsel because his attorney failed to advise him that his guilty plea would have several collateral consequences, including ineligibility for a firearm permit, exclusion from certain aspects of employment, loss of housing, preclusion from voting while on parole/probation and potential future sentence enhancements on newly committed crimes.
Preliminarily, the People submit that Defendant has failed to sufficiently corroborate his claim in that he has failed to provide an affirmation from his attorney, Raymond Loving. Thus, pursuant to CPL §440.30(4)(d), the Court may deny Defendant’s motion if an “allegation of fact essential to support the motion” is “made solely by the defendant.” Furthermore, the People maintain that a defendant need not be advised of the collateral consequences of a guilty plea.
Pursuant to CPL §440.30(4)(a), upon considering the merits of the instant prayer, a court may deny a motion to vacate a conviction, without conducting a hearing, if the moving papers do not allege any ground constituting legal basis for the motion. In other words, even if the herein allegations are true, they do not establish any of the grounds for relief set forth in CPL §440.10(1).
In this case, Defendant has failed to allege facts that would amount to denial of effective assistance of counsel. Contrary to Defendant’s claim, it is well established that the failure to advise a criminal defendant of potential future sentence enhancements does not render a guilty plea invalid (see People v. Pierre, 80 AD3d 441 [1st Dept 2011]; People v. Watkins, 244 AD2d 269, 270 [1st Dept 1997]. Moreover, a defendant need not be advised of the collateral consequences of his guilty plea such as, “loss of the right to vote or travel abroad, loss of civil service employment, loss of a driver’s license, [and] loss of the right to possess firearms” (see People v. Ford, 86 NY2d 397, 403 (1995), overruled on other grounds by People v. Peque, 22 NY3d 168 [*3](2013). [FN2] Thus, even if true, Defendant’s allegations would not demonstrate ineffective assistance of counsel. Accordingly, based on the foregoing, Defendant’s motion to vacate his conviction is denied without a hearing.
In another case decision, defendant a money adviser at JP Morgan Chase, pleaded guilty earlier today to Grand Larceny after admitting she stole over $100,000 from a client. According to reports, her scheme involved creating an ATM card for the client’s account without his knowledge. At her sentencing, defendant will receive 5 years probation and shall be required to pay back her ill-gotten gains by a specified date.
As a former Manhattan prosecutor who served in the same office that prosecuted defendant, I handled Fraud and Grand Larceny cases well into the multiple millions of dollars. As a criminal defense attorney I have represented clients in Grand Larceny crimes ranging from the tens of thousands of dollars to multiple millions of dollars. Even though I have handled cases on each side of the law, every case requires a unique defense. It is likely that the “paper trail” of evidence was overwhelming in defendant’s case and her approach to the case was to try to mitigate her crime. Was defendant dealing with substance abuse or mental health issues at the time she perpetrated the crime? Did defendant show remorse for her actions? What was her ability to repay back the victim and was he “on board” with the plea? All of these issues, and many more, were likely addressed and presented favorably to the District Attorney’s Office.
Certainly, we do not know what transpired between the defense attorney and the prosecution, but it is not likely in this set of facts that the defendant “challenged” the prosecution to go forward with the case while criminal defendant insisted on her innocence. Instead, it is likely that defendant did quite the opposite by presenting every reason why she should be afforded leniency.
As I have stated numerous times in my entries, sometimes our clients benefit when we fight with “vinegar” and other times we get tremendous results with “honey.” Regardless of our approach, over the past year we have obtained, among many other dispositions, an ACD (dismissal after 6 months) on a Grand Larceny case of $20,000 and a misdemeanor on a Grand Larceny theft involving $25,000. Moreover, two other clients received conditional discharges (no jail or probation) on two Grand Larcenies involving $5,000,000 and $52,000 respectively. Recently, another client had his case “dropped” by prosecutors after he had been investigated for tax fraud in the tens of millions of dollars.
Although the above results avoided criminal records and / or jail for each of our clients, each case is unique, and as noted, requires its own analysis to ascertain the appropriate defense. After all, what might work in one case could hinder your defense in another. Whatever her tactic, however, defendant will remain a free woman and a woman who will be able to move past this terrible incident.
Courts will look at the timing and locations of larcenies to determine whether they formed part of a single activity or multiple activities. If part of a single activity, only one larceny has occurred. If there were multiple activities, however, then there were also multiple larcenies.
The determination of the number of larcenies affects the number and severity of the larceny charges.
If you are facing the same case scenario, seek the legal assistance of a New York Grand Larceny Attorney and New York Criminal Defense Attorney at Stephen Bilkis and Associates.