Grand Larceny and Aggregation

Grand Larceny in the State of New York is a serious felony offense that carries with it the possibility of significant state prison time. There are multiple degrees of Grand Larceny, from First Degree to Fourth Degree, which can have vastly different consequences and sentencing ranges. One of the key factors distinguishing the various degrees of Grand Larceny is the value of the property that was allegedly stolen, from more than $1000 for Grand Larceny in the Fourth Degree, to more than $1,000,000 for Grand Larceny in the First Degree. On the surface, this may seem like a simple and sensible way to differentiate these charges. However, a significant degree of complexity can be added to the mix in the form of the principle of Aggregation.

The principle of Aggregation is essentially that the prosecutor may add together the proceeds of multiple thefts in order to charge a person with a higher degree of Grand Larceny in certain circumstances. Generally speaking, there must be a significant connection between the thefts in order for the prosecutor to successfully utilize this principle. The proceeds of multiple thefts may only be aggregated if the thefts were from the same owner and if a defendant acted “pursuant to a single, sustained, criminal impulse and in execution of a general fraudulent scheme.” People v Cox, 286 N.Y. 137, 142 (1941).

As anyone can see, this rule of Aggregation leaves a lot of room for interpretation. The Appellate Division recently grappled with one case that lay in the gray area in People v. Miller, 145 A.D.3d 593 (1st Dept. 2016). In Miller, the defendant was convicted after trial of Grand Larceny in the First Degree, and sentenced to nine years in state’s prison. The defendant appealed and argued that the proceeds from the five different thefts should not have been aggregated to get over the $1,000,000 mark, and therefore the defendant could not legally have been guilty of Grand Larceny in the First Degree. The allegations in Miller were that the defendant worked with the bookkeeper for the Brooklyn Public Administrator to generate fake checks payable to other accomplices, which were drawn on the Public Administrator’s account. The Public Administrator is the official charged with holding and administering the estates of deceased Brooklyn residents who died without a will. The allegations were that those other accomplices then kept some of the stolen money for themselves, and kicked back a large portion to the defendant.

The defendant argued both that this money did not all belong to the same “owner,” since it was the money of many different estates, and that it was not a “single sustained scheme.” Under the circumstances, the latter argument was predictably denied by the appellate court. The first issue is much more complicated, and it would seem on the surface to be a winning argument. All this money came from, presumably, many different estates and therefore many different “owners.” This would mean that the stolen funds could not legally be combined to reach the $1,000,000 threshold for Grand Larceny in the First Degree. The New York State Penal Law defines “owner” as “any person who has a right to possession…superior to that of the taker, obtainer or withholder.” Penal Law § 155.00 [5]. This would clearly include the Public Administrator, but the defendant in Miller argued that a different definition of “owner” should apply for the purposes of aggregation, and that the appellate court should look to legislative intent and other factors behind that Penal Law definition.

The appellate court refused to do so, and went with the Penal Law definition of “owner” in upholding the defendant’s conviction of Grand Larceny in the First Degree. This is critical, because it means that a very clear rule has been established that if a person is accused of stealing money or propertyon multiple occasions from a person or entity that is holding that property for other people, such as a bank, those multiple alleged thefts can be combined and the accused can be charged with a much more serious felony that carries with it the potential for much more severe sentencing.

This blog entry is not an attempt to substitute for an examination of your particular case by your own criminal defense lawyer who will determine what is best for your case. Instead, this entry can give you the foundation to better understand Grand Larceny and aggregation. To better understand these crimes, possible defenses, and how you can best protect yourself, consult with your criminal lawyer.

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Do the Police Need a Lab Test to Charge You with a Drug Crime?

Before answering this question, it’s important to differentiate between “charging” someone with a drug-related crime, and “convicting” someone of that same crime. In this context, to “charge” a person means simply to file an accusatory instrument with a local criminal court and require that the the individual charged appear in court to defend themselves. In order to achieve this, the strength of the evidence only needs to meet a very low threshold – much lower than the standard of proof needed to convict the person at trial. That being said, in the context of drug-related charges, it is not good enough for the police officer or other member of law enforcement to simply state the substance is cocaine, or heroin, or OxyContin, etc. The drafter of the complaint must support that conclusory assertion a but more than that, but not much. One thing the drafter does NOT need is a laboratory report or any other kind of scientific test confirming that the substance is what it is alleged to be.

So what do the police need to support the allegation that a substance is suboxone, or ecstasy, or any other illicit substance? In People v. Kalin, 12 NY3d 225 (2009), the Court of Appeals of the State of New York, the highest court in the State, held that the police or other members of law enforcement who are alleging that a substance is in fact a controlled substance of some kind can rely on their training and experience and simply rely on their senses and circumstantial evidence to make a conclusion regarding what the substance is, at least for the purposes of a facially sufficient criminal complaint. What this means is that a police officer who has had some kind of experience with drug-related arrests can look at a substance, see that it’s brownish and powdery, use those observations to conclude that the substance is heroin, and that’s probably good enough to move the case forward.

This can be an alarming fact, but it’s important to remember that this extremely low bar to charging an individual with a drug-related offense is far from the same standard needed to sustain a conviction. The District Attorney will eventually need to have the substance tested and provide a laboratory analysis report to the Court and the defendant’s attorney verifying that the substance is what it is alleged to be. However, in some instances that’s too late to undo the harm that’s been done simply by the arrest and/or accusation. A misidentification of a controlled substance and the accompanying prosecution can lead to the loss of a job, damage to personal relationships, the search of the defendant’s belongings that would have been illegal if not for the initial misidentification, etc. If you are charged with a drug-related offense in New York, it is important to have a criminal defense attorney who can not only defend you and protect your rights, but who understands the real-world impacts that an allegation of this nature can have, and who understands the intricate behind-the-scenes dynamics of these kinds of charges.

This blog entry is not an attempt to substitute for an examination of your particular case by your own criminal defense lawyer who will determine what is best for your case. Instead, this entry can give you the foundation to better understand drug-related offenses. To better understand these crimes, possible defenses, and how you can best protect yourself, consult with your criminal lawyer.

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The Forgotten “Beyond a Reasonable Doubt” Standard

Everyone in the United States is familiar with the phrase “beyond a reasonable doubt.” Everyone in the country even seems to know that “beyond a reasonable doubt” is the standard of proof that applies in criminal cases, that it is a relatively high standard of proof, and that the prosecution must meet that standard in order to convict a criminal defendant. This level of public knowledge is fairly impressive, especially given the lack of basic civics education in recent decades. Why is it, then, that those who work within the criminal justice system day in and day out seem to forget this basic tenant of our law so often? The apologist might say that it is simply the result of experience and expertise that leads to a kind of “realistic” outlook on criminal cases. A more pessimistic view of the same phenomenon might be that a career in criminal law leads to an erosion of ethical principles, or a numbness to the severity of the consequences faced by those that are charged with criminal offenses. There are also very real practical pressures that are felt on all sides of the system – the prosecutor does not want to dismiss cases left and right for fear of burning bridges with their partners in law enforcement or for fear of seeming soft on crime; the defense attorney must often advise their client to avoid unnecessary risks and strive to keep their case-load manageable; and the judge must also keep the criminal justice train moving and avoid derailments and backups. Whatever the reasons, attorneys and judges in the criminal justice system speak the phrase “beyond a reasonable doubt” constantly, and even routinely instruct juries in detail on what that phrase means, but they seldom act in accordance with that legal standard.

The generally agreed upon explanation for what this critical phrase really means is that a criminal defendant cannot be found guilty when there is a doubt for which a reason exists with regard to any element of a particular criminal charge. This must be an actual doubt, not an imaginary doubt. Essentially, if you can articulate a doubt about any element of a criminal charge, and there is some basis for that doubt given the evidence or lack of evidence, the person charged with that offense cannot be guilty. However, it would be difficult for anyone in the criminal justice system to say, with a straight face, that this is how criminal attorneys and judges actually think or talk.

All too often, when there is an evidentiary problem with a case, the result is that the defendant is offered lesser charge. “You’re right, there is that eye witness that says it was the other way around, and she does seem credible. Tell you what, I’ll offer him a misdemeanor if he’ll take it next time we’re in court.” That is not our system of justice, and it should not be our system of justice. If there is some actual credible reason to doubt a criminal allegation, the case must end, then and there. We cannot submit to the understandable but misguided temptation to start weighing that reasonable doubt we have against the other reasons we have to believe the allegations. As soon as you let your mind go there, you have already forgotten what “beyond a reasonable doubt” means, and why it is so important to remember.

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