The New York Penal Law classifies larcenies, or theft of another’s property, generally by the value of what is stolen. In limited cases, what you steal determines the degree of larceny. Whether your act of theft constitutes a felony or misdemeanor, the punishment and other consequences of a conviction turn on the level of larceny.
Under New York Penal Law §155.35, you face conviction for “grand larceny in the third degree” if you steal property having a value of more than $3,000 or you steal an automated teller machine or its contents — primarily, the money in it.
How is Value Determined?
In proving value, the prosecutor must look to the market value of the property when and in the location where it was stolen. For cash or other funds, a simple count of the currency or some other documentation of the amount involved suffices to show value. With tangible items, such as jewelry or electronics, the market value refers to what you would have been required to pay for the stolen property.
That value will depend significantly upon whether you stole from a retailer, wholesaler or a private person. If you steal from a retail store, the prosecutor and court will normally look to the list price. When the stolen property is wholesale, the price charged by the wholesaler supplies the value. For non-business victims, such as a resident, value will depend on the replacement cost of the stolen item within a short time after the theft.
Note that New York law does not count the sales tax in a determination of value. This means that, if you face charges of stealing a piece of jewelry with a price tag of exactly $3,000 from a department store, you don’t face conviction for grand larceny in the third degree because the value does not exceed $3,000. In other words, the court will not allow the tax on an item to bump the value above the threshold for this or any other larceny.
Theft of an automatic teller machine or money, even if less than $3,000, constitutes this offense. If you’re convicted of this offense based upon theft of an ATM or its contents, a subsequent theft of an ATM machine triggers the more serious offense of aggravated grand larceny of an ATM machine.
What is the Punishment?
Grand larceny in the third degree falls in the “Class D” category. If you’re convicted of a Class D Felony, you face a minimum of one year and up to seven years in prison. Typical fines for grand larceny in the third degree total the greater of two times the value of what you stole. No mandatory jail time is imposed upon first-time offenders.
Felony convictions have potentially serious consequences beyond prison time and fines. For a conviction of grand larceny in the third degree, you will not be able to possess a firearm and may be ineligible for many occupational licenses, including those that permit you to become a lawyer or accountant.
For non-U.S. citizens, immigration consequences include ineligibility for United States citizenship and deportation. It is important that you advise us about your immigration status so that we can advise you of the effect of a felony conviction on your ability to stay in the United States.
What are the Defenses?
That the prosecutor can’t or doesn’t establish that the value exceeds $3,000 defeats a grand larceny in the third degree charge (so long as the charge is not based on ATM theft.
You might have defenses to larceny based upon your good-faith assertion that you own or had a right to possess what was taken. These scenarios often involve contract disputes in which you paid or believe you paid the purchase price or otherwise were entitled to delivery of the item. In these cases, we may be able to argue that the dispute is really a civil one and should not be addressed in a criminal prosecution.
Contact us for a free consultation and assessment of the charges, your possible defenses and the possible approaches for avoiding a conviction to this or any other crime for which you have been charged.