Posts Tagged ‘violations’

Shoplifting and Larceny under New York Penal Law 155.25 or 155.30

Thursday, October 28th, 2010

Many New Yorkers are arrested each year for shoplifting.  Some people, particularly those without prior criminal records, will be issued a desk appearance ticket by the New York City Police Department.  Others will be taken to central booking, arraigned, and prosecuted for petit larceny under New York Penal Law section 155.25.

For those new to the system, this can be a stressful and worrisome process.  Arrestees have various concerns:

“When will I see the judge?”

“Will I be held in jail?”

“Will the judge set bail?”

“Who will represent me?”

“What am I being charged with?”

“What impact will this have on my record?”

“Will this affect my job?”

This post will attempt to answer some of these questions.  Of course, nothing in the post is designed to be legal advice, which should be immediately sought from a new york criminal defense attorney experienced in handling petit larceny cases in New York.

Initial Court Appearance and Bail

If you have been issued a desk appearance ticket, you will be released from the police station after receiving it.  The desk appearance ticket itself will contain your name, the arrest number, the top offense charged, the county in which you were arrested, the name and signature of the officer who arrested you, and the date, time, and location of your initial court appearance.

After consulting with a lawyer, you will then appear on the date on the desk appearance ticket to be arraigned.  There are various purposes of an arraignment proceeding: (i) to allow for the prosecution and court to formally inform you of the charges; (ii) for you and your lawyer to receive a misdemeanor complaint (a charging document); (iii) for the prosecution to provide you and your lawyer with notice of any statements or police-arranged identification procedures they employed that they intend to use against you; (iv) for the court to consider the question of bail; and v) for the prosecution to either make an offer of a lesser charge or to inform you and the court of what sentence they would recommend if they feel it is appropriate that you be prosecuted for the top charged offense, which, for the purposes of this post, would be petit larceny and perhaps criminal possession of stolen property.

If you have a prior criminal record or the police determine that it is appropriate for other reasons, you will not receive a desk appearance ticket, but instead will be “processed” through central booking station of the NYPD or other arresting agency and will see the judge within 24 hours of your arrest.

The arraignment proceeding for those “processed” defendants will be the same as for those who received desk appearance tickets, but will happen much more quickly.  In both cases, after you receive the charging documents and are informed of the petit larceny charges, you will be given an opportunity to plead guilty to the top charge or to a lesser charge, if the prosecutor deems it appropriate under the circumstances.

If there is no disposition, the government will be heard on the question of bail.  For most people without criminal histories, the prosecutor will usually recommend that you be released on your own recognizance, or “ROR’d.”  If there are circumstances that give the government reason to believe that you will not return to court, the prosecutor will ask for a set amount of bail.  The amount of bail will be determined by a variety of factors, including criminal history, bench warrant history, ties to the community, and your employment situation.

Whether or not bail has been set, if there is no disposition of your case, you will be given a new date to appear in a different court part to either continue to fight or resolve your case after plea bargaining.

The Petit Larceny Charge

Petit Larceny, under New York PL 155.25, is a very simply-defined crime: “A person is guilty of petit larceny when he steals property.”  Petit Larceny is a class A misdemeanor.  According to the statutory definitions, “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.”  An “owner” for purposes of the statute, is defined as follows: “When property is taken, obtained or withheld by one person from another person, an ‘owner’ thereof means any person who has a right to possession thereof superior to that of the taker, obtainer or withholder.”  Penal Law 155.00(5).  Simply put, although there is a lot of detail in the statute, if you are caught removing items from a store, and you walk past the registers and attempt to leave without paying, you will likely be charged with petit larceny.

The Grand Larceny Charge

It should be noted here, however, that oftentimes a person who thinks that they are committing a minor offense may wind up being charged with a felony.  Although there are several other factors which may result in elevation, in simple terms, New York changes the charge from a misdemeanor to a felony if the value of the property allegedly stolen exceeds $1000 (Grand larceny in the fourth degree under PL 155.30, a class E felony), $3000 (Grand larceny in the third degree under PL 155.35, a class D felony), $50,000 (Grand larceny in the second degree under PL 155.40, a class C felony), or $1,000,000 (Grand larceny in the first degree under PL 155.42, a class B felony).  The value figure that the statute uses is the “market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime.”  PL 155.20(1).

Disposition and Collateral Consequences

District Attorneys in the five boroughs of New York City as well as greater New York and upstate have been known to give two non-criminal dispositions offers at arraignments or, after consultations with defense attorneys, at a subsequent court proceeding: (i) a disorderly conduct violation under Penal Law 240.20 or (ii) an adjournment in contemplation of dismissal under Criminal Procedure Law 170.55.

Whether and under what circumstances you would receive one of those two non criminal dispositions in a petit larceny case will depend upon a variety of variables, such as the individual prosecutor with whom you are dealing, your defense counsel, and the big picture scenario in your life that led up to the incident.

As far as collateral consequences are concerned, a disorderly conduct violation is not a crime and would be sealed by operation of law after the entry of the plea and the sentence.  An adjournment in contemplation of dismissal can eventually produce an even better result.  As long as you stay out of trouble for the period of time set forth by the judge and comply with any and all other conditions set forth by the court, the case is actually dismissed and the arrest and prosecution become a legal nullity.

Importantly, if you have been arrested for or charged with petit larceny, you should consult with experienced New York criminal defense attorneys before going to court.

Sealing of Records Following a Conviction of a Violation or Traffic Infraction in New York

Thursday, November 12th, 2009

The New York Criminal Procedure Law sets forth a mechanism by which certain records relating to cases resulting in convictions of violations, such as Disorderly Conduct, PL 240.20, or traffic infractions, such as Unlicensed Driving, VTL 509, are either returned to the person, destroyed, or sealed.  CPL 160.55.  As always, this entry meant to be informative, but not a substitute for the advice of experienced criminal defense attorneys.

It should be noted from the outset that this particular sealing provision does not apply to (i) loitering violations under CPL 240.35, (ii) loitering for prostitution violations under CPL 240.37, or (iii) DWAI violations under VTL 1192(1).

The sealing, return, or destruction of records relating to the arrest or prosecution is then effected, by and large, by operation of law.  The following rules apply generally to violation or traffic infraction convictions, but special rules may apply in cases involving certain certain traffic and alcohol-related violations.

RULE 1: CLERK OF COURT IMMEDIATELY NOTIFIES POLICE AND STATE CRIMINAL JUSTICE OF THE TERMINATION BY SUCH CONVICTION

After the criminal action or proceeding is terminated, the clerk of the court where the proceeding was terminated is required to “immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated by such conviction.”  CPL 160.55(1).

Exception: In certain cases, either the prosecuting attorney or the court, on its own motion, may, upon five days’ notice to the person or his or her attorney will move that the interests of justice require that the termination not be noticed to the police or state criminal justice.  In those cases, the status quo will be maintained unless and until the motion is decided otherwise.  CPL 160.55(1).

RULE 2: POLICE OR STATE CRIMINAL JUSTICE DESTROYS OR RETURNS ITS OWN COPIES OF PHOTOGRAPHS AND FINGERPRINTS FORTHWITH

After the appropriate investigative or criminal justice agency receives the notification from the clerk, “every photograph of such person .  .  .  and palmprints and fingerprints taken or made of such person  .  .  .  in regard to the proceeding terminated, and all duplicates and copies thereof [with certain exceptions discussed below]  .  .  .  shall forthwith be, at the discretion of the recipient agency, either destroyed or returned to such person, or to the attorney who represented such person at the time of the termination  .  .  .  .”  CPL 160.55(1)(a).

Exception: The CPL provision carves out two instances in which a law enforcement agency that receives a termination notification will NOT destroy or return photos and fingerprints, these are: (i) digital fingerprints maintained pursuant to subsection (e), and (ii) palmprints or fingerprints taken in harrassment (PL 240.26) cases where the violation was committed against a member of the same family or household.

RULE 3: POLICE OR STATE CRIMINAL JUSTICE FORMALLY REQUESTS IN WRITING THAT ALL COPIES THEY TRANSMITTED OR FORWARDED TO ANY UNITED STATES OR OTHER STATE AGENCY BE DESTROYED OR RETURNED

Oftentimes a police department in possession of photographs such as mugshots or fingerprint material to the FBI or another federal agency or to another state’s law enforcement agencies.  In those cases, the New York state arresting agency, or state criminal justice must formally request the return of all such material.

RULE 4: ALL POLICE RECORDS AND PAPERS RELATING TO THE ARREST OR PROSECUTION ARE SEALED

While fingerprints and photographs must be either returned or destroyed (absent the applicability of an exception), the “official records and papers” concerning the case are merely sealed.  The sealing is relatively secure, however, in that the statute specifically states that such records “shall be sealed and not made available to any person or public or private agency.”  CPL 160.55(c).

Exception: The records and papers may be made available to (i) a prosecutor in a case where a defendant has made a motion pursuant to CPL 170.56 or 210.46 (motion for adjournment in contemplation of dismissal ["ACD"] in cases involving marijuana); (ii) “a law enforcement agency upon ex parte motion in any superior court, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it,” (iii) a firearms-licensing agency from any state who asks for it; (iv) the New York State Division of Parole where the arrest was made while the person was on parole or the probation department when the person was on probation, (iv) generally speaking, law enforcement, when the conviction was for a harassment violation (PL 240.26) committed against a member of his or her own household, as that is defined in CPL 530.11 and determined in CPL 170.10.  There are also special sealing rules that apply to certain DWAI violations and loitering violations.

It should be noted, however, that the court file itself may still be accessible to outside parties.  Thus, although it may be difficult to find, such a file may be viewed by a person with knowledge of some of the details of the occurrence, such as the date of the occurrence or the arrest number.

If you have received a dismissal or a conviction of a non-criminal offense, such as a violation or traffic infraction in New York, you should consider using an experienced attorney can help you contact the New York State Criminal Justice Department to ensure that your records are properly sealed.

Differences Between Crimes and Violations in New York Law

Thursday, November 5th, 2009

People who are arrested may initially be confused when it comes to the difference between a crime and a violation (or infraction) in New York State.  Generally speaking, a conviction of a crime carries with it a permanent criminal record whereas a violation (or infraction) disposition does not.  This entry will point to some statutory law and perhaps provide a clearer picture of the difference between those two offenses.  It is not meant to be a substitute for the advice of experienced criminal lawyers.

Classification of Offenses

Penal Law section 55.10 classifies all offenses into one of four categories: felonies, misdemeanors, violations, and traffic infractions.  Note that the term “offense” is the one common feature to all of these four terms.  Thus, every felony, misdemeanor, violation or traffic infraction is an “offense,” but not every “offense” is necessarily a felony, misdemeanor, violation or traffic infraction.  The law distinguishes between these four offenses in the individual penal code section at issue.  Thus, the code section describing each “offense” will typically include a sentence identifying it as one of the four categories.  The marijuana sections of the penal code demonstrate the codification scheme:

  § 221.05 Unlawful possession of marihuana.
    A  person  is  guilty  of  unlawful  possession  of  marihuana when he
  knowingly and unlawfully possesses marihuana.
    Unlawful possession of marihuana is a violation punishable only  by  a
  fine  of not more than one hundred dollars. However, where the defendant
  has previously been convicted of an offense defined in this  article  or
  article   220   of  this  chapter,  committed  within  the  three  years
  immediately preceding such violation, it shall be punishable (a) only by
  a fine of not more than  two  hundred  dollars,  if  the  defendant  was
  previously  convicted  of one such offense committed during such period,
  and (b) by a fine of not more than two hundred fifty dollars or  a  term
  of  imprisonment not in excess of fifteen days or both, if the defendant
  was previously convicted of two  such  offenses  committed  during  such
  period.
  § 221.10 Criminal possession of marihuana in the fifth degree.
    A  person  is  guilty of criminal possession of marihuana in the fifth
  degree when he knowingly and unlawfully possesses:
    1. marihuana in a public place, as defined in section 240.00  of  this
  chapter, and such marihuana is burning or open to public view; or
    2.  one  or  more  preparations,  compounds,  mixtures  or  substances
  containing  marihuana  and  the  preparations,  compounds,  mixtures  or
  substances are of an aggregate weight of more than twenty-five grams.
    Criminal  possession  of  marihuana  in  the fifth degree is a class B
  misdemeanor.
  § 221.20 Criminal possession of marihuana in the third degree.
    A  person  is  guilty of criminal possession of marihuana in the third
  degree  when  he  knowingly  and  unlawfully  possesses  one   or   more
  preparations, compounds, mixtures or substances containing marihuana and
  the  preparations, compounds, mixtures or substances are of an aggregate
  weight of more than eight ounces.
    Criminal possession of marihuana in the third  degree  is  a  class  E
  felony.

There are a few “unclassified” crimes and violations — most notably in the Vehicle and Traffic Law or New York City Administrative Code — but, generally speaking, the type of offense will be written directly into the code provision in question and it will always be present in a Penal Law offense.

Distinction between Crimes and Violations

Once the class of the offense is determined, one needs simply to review the first six subsections of the definition section of the Penal Law to determine whether the offense is a crime or not.

  § 10.00 Definitions of terms of general use in this chapter.
    Except  where different meanings are expressly specified in subsequent
  provisions of this chapter,  the  following  terms  have  the  following
  meanings:
    1.  "Offense"  means  conduct  for  which  a  sentence  to  a  term of
  imprisonment or to a fine is provided by any law of this state or by any
  law, local law or ordinance of a political subdivision of this state, or
  by any order, rule or regulation  of  any  governmental  instrumentality
  authorized by law to adopt the same.
    2.   "Traffic  infraction"  means  any  offense  defined  as  "traffic
  infraction" by section one hundred fifty-five of the vehicle and traffic
  law.
    3. "Violation" means an offense, other than a "traffic  infraction,  "
  for which a sentence to a term of imprisonment in excess of fifteen days
  cannot be imposed.
    4. "Misdemeanor" means an offense, other than a "traffic infraction, "
  for which a sentence to a term of imprisonment in excess of fifteen days
  may  be  imposed,  but for which a sentence to a term of imprisonment in
  excess of one year cannot be imposed.
    5. "Felony" means an offense  for  which  a  sentence  to  a  term  of
  imprisonment in excess of one year may be imposed.
    6. "Crime" means a misdemeanor or a felony.

(emphasis added).  Thus, the difference between crimes and violations is fairly clear.  In sum, misdemeanors and felonies are crimes that become part of a “criminal record,” and violations and infractions are simply not crimes.  Violations and infractions, however, “offenses,” and while they may not show up on a general background check, records of their existence could potentially be found by those who are familiar with the court filing system.  Thus, it is best to try to avoid pleading to any offense whatsoever, if at all possible.