New York Criminal Lawyer Blog

According to New York City's top prosecutor, a Manhattan Chase Bank teller's passion for the Benjamins may have cost him much more than the $240,000 he is alleged to have swindled from his employer. Unfortunately for Sephoen Tsang, a Chinatown branch worker, Manhattan District Attorney Cyrus Vance, Jr. has escalated the "war" on white collar crimes in recent months with equal passion to Tsang's alleged thieving ways.

It is claimed by prosecutors that Tsang made numerous fake and false entries into the computer system at Chase Bank regarding the movement of $243,000 in funds. Although prosecutors claim that internal computer systems records from November 29, 2011 appear as if Tsang moved $243,000 from his teller drawer to the bank vault and and then again to the ATM machines, these transactions never transpired. Instead, the money was allegedly stolen outright.

Upon learning of the possible theft, the New York City police department, along with the Manhattan District Attorney's Office, began their investigation. Not only did a search warrant executed at the Tsang's home result in the recovery of $26,000 in cash, a flat screen television, and an Apple MacBook Air computer, but Tsang was located miles away in Atlantic City playing baccarat at the Borgata Casino.

According to the indictment charging Tsang with multiple crimes, the defendant faces multiple felonies including Grand Larceny in the Second Degree (New York Penal Law 155.40) and Falsifying Business Records in the First Degree (New York Penal Law 175.10). Second Degree Grand Larceny is a "C" felony punishable by up to five to fifteen years in prison while First Degree Falsifying Business Records is an "E" felony punishable by as much as one and one third to four years in prison.

The Grand Larceny charge that Tsang faces simply stems from the alleged theft of property, here it is cash, with a value exceeding $50,000, but not more than $1 million. Falsifying Business Records, on the other hand, could have occurred in many ways. Generally speaking if you make a false entry or cause a false entry to be made in the business records of an enterprise (inputing false transaction records into the Chase computer and banking records) with the intent to defraud and you do so to hide or assist in the carrying out of another crime (Grand Larceny), you have perpetrated this offense. Although it likely is not applicable in Tsang's case based on my brief reading of the press release, there is an affirmative defense to Falsifying Business Records. New York Penal Law 175.15 states that if you falsify any type of business record at the direction of a supervisor and you did so as an employee without any benefit, then you would have a defense to any degree of Falsifying Business Records.

There may be many factors in determining the strengths and weakness of this case. Is there a means by which the entries made in the Chase system is traceable to Tsang? If there is a login is it shared? Is there an answer as to why a teller, who likely does not make that much money, had in excess of $25,000 in cash in his apartment? Prosecutors likely have determined or are attempting to ascertain how much money Tsang gambled with and how he had access to those funds. Does Tsang have a reasonable answer?

Unfortunately for Tsang, prosecutors throughout New York City have become more strict and aggressive in their prosecution of theft and fraud crimes in New York. Will Tsang beat the case? Will he end up behind bars? One thing is for sure. This coming Christmas Tsang's stocking will be filled not with gifts and goodies, but anxiety and grief.

To educate yourself on the Grand Larceny and Falsifying Business Records in New York, please follow the highlighted links above. Additionally, Crotty Saland PC's NewYorkTheftAndLarcenyLawyers.Com website has significant information on Grand Larceny crimes in New York ranging from collateral consequences, potential punishment and analysis of criminal statutes.

Established by two New York criminal lawyers who served together as Assistant District Attorneys in Robert Morgenthau's Manhattan District Attorney's Office, the criminal attorneys at Crotty Saland PC represent the accused throughout the New York City region.

"Go get 'em, Cy!" That was likely the cheer that echoed through the halls of TD Bank corporate headquarters after the Manhattan District Attorney and his troops announced the indictment and arrest of 94 individuals in an alleged check fraud and Grand Larceny ring that pilfered approximately $450,000 from the global bank. While the loss of $450,000 has absolutely no impact on the bottom line of such a large institution, and is likely viewed merely as one of the many costs of doing business in the 21st century, such a theft is significant in terms of consumer and banker confidence and security. The alleged fraudsters may have believed they were in a real life Staples commercial when they allegedly looted approximately 90 accounts and spent the ill gotten gains on cards and dice at area casinos (Hey, "That was easy."), but they were certainly wrong. The sad reality for the accused is that many of those arrested now face up to fifteen years in state prison. Reminiscent of the Queens District Attorney's Office 16 million dollar and 100 plus person indictments charging Enterprise Corruption, Grand Larceny and other crimes, Manhattan prosecutors, like District Attorney Brown's crew, are poised to to send a strong message to would be identity, cyber and check fraud thieves. In fact, taking a page out of the book of his predecessor, Robert Morgenthau, for fighting crimes in the streets and in the suites, DA Cyrus Vance, Jr. stated:

"Our job is to protect New Yorkers, whether on the streets, online, or in the banking system. The most recent cases brought by my Office's Cybercrime and Identity Theft Bureau show how pervasive cyberfraud schemes are, and how they depend on individuals willing to play various criminal roles. Whether you are a ring-leader or a small player, if you are caught committing fraud, you will be prosecuted."

Frankly, DA Vance is right and he is assertive in his position. Although any indictment is merely an accusation, whether the theft amount is large or small, involves a few individuals or is a criminal enterprise, no organized act of Grand Larceny is insignificant in the eyes of law enforcement.

According to reports and the Manhattan District Attorney's Office press release (check out the piggy bank symbolizing bank accounts...it brings a touch of "fun" to an otherwise serious situation) prosecutors claim that the alleged band of thieves was run by men and recruiters who payed a couple of hundred dollars to individuals who would open up bank accounts. Once open, bad checks, wire transfers or other monies were deposited into the accounts. Although the alleged bad guys knew the money would ultimately not clear and checks would bounce, the defendants accessed and withdrew the money before the banks waited for the checks to clear. With the money in hand, nearly half a million dollars, the ring leaders allegedly lived like high rollers at Foxwoods Casino and other casinos throughout Atlantic City.

If true, the sad reality of a case like this is that but for the diligence and efforts of prosecutors and law enforcement agents, banks, like TD Bank, would probably not connect the fraud together. While missing the forrest from the trees, the banks would certainly catch a customer who failed to make a timely mortgage payment, but not the alleged large scale fraud rooted out by the Manhattan District Attorney's Office. Although they would certainly never publicly admit it, the cost to a bank for similar fraud (dollar wise this case involves the same amount of money as a lower end jumbo mortgage default) is not worth internal bank enforcement. Although my commentary may seem cynical or a little "tongue and cheek," with the relatively weakness in the penal law for crimes relating to Criminal Possession of a Forged Instrument, Identity Theft and in some cases Grand Larceny, the acceptance by banks of fraud as a cost of doing business, and the overwhelming amount of time it takes to "connect the dots" in a large scale fraud ring, it is clear to see why these types of schemes are the crimes of the future.

As I note in many of my entries assessing alleged large scale scams, what each defendant will set forth as his or her defense will likely play out, like a hand of poker or black jack, over the next few weeks and months. Whether the defendants fold or hit 21... we will all soon find out.

Crotty Saland PC is a New York criminal defense firm representing those accused of all crimes throughout New York City and the region. Jeremy Saland, one of our two founding New York criminal lawyers, served in the Manhattan District Attorney's Office for over seven years. During that time, Jeremy served in the Identity Theft Unit Major Case section, the predecessor to the Cybercrime and Identity Theft Bureau.

To learn more about the crimes listed above and below, please follow the highlighted links to CrottySaland.Com as well as the NewYorkCriminalLawyerBlog.Com. Additional information is available on Crotty Saland PC's new website and blog, NewYorkTheftAndLarcenyLawyers.Com and NewYorkTheftAndLarcenyLawyersBlog.Com respectively.

Crimes Alleged & Offenses Charged

Grand Larceny in the Second, Third & Fourth Degrees: New York Penal Law 155.40, 155.35 & 155.30

"C," "D," and "E," felonies respectively, these crimes are punishable by up to fifteen, seven and four years. If any of the individuals are predicate felons, mandatory state prison is required. These charges may have been aggregated on an individual basis, but not collectively across defendants as each defendant is not charged with the same degree crime.

Criminal Possession of a Forged Instrument in the Second Degree: New York Penal Law 170.25

A "D" felony punishable by up to seven years in prison. This offense likely relates to the fake checks or debit cards recovered from an individual. Alternatively, it is possible that he or she had a fake identification of some kind. Without more information, it is difficult to determine.

Conspiracy in the Fourth Degree: New York Penal Law 105.10

An "E" felony, this crime is punishable by up to four years in prison. The crime is tied to the defendants alleged "in cahoots" actions and activities to perpetrate the Grand Larceny criminal scheme. For prosecutors, it enables law enforcement to tie the defendants together into this alleged common fraud. It is important to recognize, however, Enterprise Corruption, a "B" felony with mandatory state prison for even a first time offender, was not charged.

Prosecutorial Agency

Manhattan District Attorneys Office - New York County, New York

Defendants Arrested & Accused

STEVEN ADDISON, TREVOR O. ALLEN, ALEXANDER ANDUJAR, FREDDIE AUSTIN, MADELEINE BALAGUER, JASMIN BARRAGAN, JOHN PAUL BAZIGNAN, TRAVIS BELL, LAURA BERRIOS, DAMIEN BLANKS, JAMALA BLY, DANNY CARDONA, IRIS CARRASQUILLO, VIVIANA CHAPARRO, FRANK CLARK, ISRAEL COLON, LOURDES COLON, CARLOS E. CORTIJO, JOSE CRUZ, JOSE M. CRUZ, VERONICA CRUZ, XOCHEEL CRUZ, SHANE DANIELS, JOANN DEBRO, MILTON DELACRUZ, ERIK DIAZ, JUSTIN DOUGHERTY, SEAN EDWARDS, RICHARD FARGAS, JENNIFER FELDMETH, JONAS FERNANDEZDIOSA D. FIGUEROA, JOSEPH FIGUEROA, NELSON FLORES-ESCOBAR, JOANNA GONZALEZ, CARLTON GOODWIN, TERRENCE M. GUY, ORLANDO GUZMAN, DANIEL HEADLY, JR., HECTOR HERNANDEZ, RAYMOND IRIZARRY, JONATHAN JAIMAN, JEAN JAYSURA, LAVONE KELLY, ERIC LANDRON, JONATHAN LASANTA, ROSA LEON, JAMES LEONARD, LUIS LOPEZ, JOEL LUCIANO a/k/a JOEL TORRES, EMIL MANZANO, JARELISSE MARTINEZ, JOSE MARTIR, CRYSTAL MCAULEY, ANGEL MEDINA, HERMINIA MEDINA, FREDDIE MERCADO a/k/a FREDDIE MERCADO JOUBERT, DAVID MORALES, CARLOS MORENO, DAYNA NIEVES, RAUL PADILLA, JR. JOSE PENA,RAFAEL PEREZ, XIOMARA PEREZ, JEREMIAH PETERSON, ILIANET PONCE, SCOTT RABA, AMADO RIVERA, ANTONIO RIVERA, JORGE RIVERA, JEFFREY RODRIGUEZ, D.O.B., RICARDO RODRIGUEZ, JUAN LUIS ROMAN, STEPHANIE ROMAN, JENNIFER ROSARIO, SABRINA ROSARIO, FRANCY SANCHEZ, GREGORIA SANCHEZ, JOSHUA SANDS, NEREIDA SANTIAGO, PANAMA SMALLS, JEFFREY W. STILL, EDWINA TAYLOR, ALBERTO TORRES, CHRISTOPHER TORRES, JUAN VEGA, ERNESTO VITAL, TOYIA WHITE, SANFORD WILLIAMS, LAKIESHA YOUNG, TAMIKA YOUNG

As I have addressed in the past, theft of a credit card or debit card in New York City, and in any of the surrounding boroughs or counties, will result in (at least) the felony charge of Grand Larceny in the Fourth Degree, NY Penal Law 155.30(4). Certainly anyone facing such a charge should consult with New York criminal defense attorney experienced in credit card crimes as the felony they would face is punishable by up to four years in prison. But what about credit card fraud (whatever that actually means!)? Will a perpetrator of credit card fraud be charged with a felony? Are there other charges that may accompany a credit card fraud charge? What evidence does the State of New York have to bring to prove credit card fraud? Let's briefly address these questions here. After all, it is important to understand the seriousness of the charges a New Yorker can face if they perpetrate one of these crimes.

In New York, one of the crimes credit card fraud will result in is a charge of New York Penal Law 170.10(1) Forgery in the Second Degree. A "D" felony punishable by up to seven years in state prison, Forgery in the Second Degree is a relatively common crime. You are guilty of Forgery in the Second Degree if you fraudulently sign the name of the actual holder of the credit card or debit card on a written instrument (i.e. the transaction receipt). Similar to theft of a credit or debit card, forgery in the second degree does not turn on the value of goods stolen (i.e. the items you purchased by signing the false name on the receipt). If you forged a signature without authority and with the intent to defraud the credit card company and/or the store (or the cardholder for that matter), then you are guilty of Forgery in the Second Degree. It is fairly scary that this one bogus signature has enormous criminal ramifications.

Moreover, such a Second Degree Forgery charge involving credit or debit card use is rarely prosecuted alone. If you have signed a false name (or scribbled what appeared to be a name) on the credit card you will also likely face the charge of Criminal Possession of a Forged Instrument in the Second Degree NY Penal Law 170.25, also a "D" felony punishable by up to seven years in state prison. According to the New York Penal Law, "[a]person is guilty of [C]riminal [P]ossession of a [F]orged [I]nstrument in the [S]econd [D]egree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument." Because that definition is not very helpful, the following will better illustrate this crime. Once you sign the credit card receipt, thereby committing Forgery in the Second Degree, you have created a completed forged instrument- the receipt with the forged signature. The key for the prosecution is to show that you intended to defraud the parties on the other end of the transaction- the store and the credit card company.

Does this sound a little confusing? Well, let's examine a case that will serve as a good illustration of these two charges: People v. Lewandowski, 255 A.D.2d 902. The defendant used a corporate credit card from her former employer to purchase gasoline and food. The defendant signed the name of her brother, the vice-president of the corporation, although she no longer was working for the company and did not have the authorization to use that card. There were two credit card receipts with a forged signature (she possessed the forged instrument!). Therefore, the defendant was convicted of Forgery in the Second Degree pursuant to NY P.L. 170.10(1) and Criminal Possession of a Forged Instrument in the Second Degree pursuant to NY P.L. 170.25. Although the value of the gasoline and food was low, Ms. Lewandowski still faced a felony charge because forged the theft involved credit card fraud. The only issue on appeal was whether the defendant's confession was a complete statement of guilt, and because it was corroborated with the brother's testimony the appellate division ruled that there was sufficient evidence to uphold the conviction.

This case is a standard example of credit card fraud that occurs in New York, which can result in a conviction of Forgery in the Second Degree and Criminal Possession of a Forged Instrument. If you sign a false name on a receipt with a credit card or debit card purchase you have committed a felony (regardless of the value of property taken!) under New York law. As much as I wish I could say we are all done, there are two more points that are worth noting. Frist, if you criminal attorney is knowledgeable about these statutes, ask him or her whether or not you can be convicted of forging the same forged instrument you are also alleged to possess. Second, it's important to understand that often time the type of Forgery mentioned above is the basis of another serious felony. Identity Theft in the First Degree (NY P.L. 190.80), also a "D" felony, is that offense.

To better educate, and defend, yourself against credit card fraud related crimes, follow the highlighted links above. Further New York criminal law and criminal defense resources maintained by Crotty Saland PC include:

CrottySaland.Com: A complete New York criminal defense website addressing countless criminal statutes in the white collar, street crime, violent crime, weapon crimes, vehicular crime, property crime and desk appearance tickets arena. Content also addresses the arrest process.

NYDeskAppearanceTicket.Com: A website a dedicated to misdemeanor offenses and desk appearance tickets in New York City.
NewYorkTheftAndLarcenyLawyers.Com: A website with substantial materials on New York's theft and larceny crimes from shoplifting and embezzlement to extortion and credit card theft.

NewYorkCriminalLawyerBlog.Com: A blog containing insight and analysis not only on criminal statutes found in the New York Penal Law, but legal decisions interpreting those crimes and cases playing out in the New York City area media.

NewYorkTheftAndLarcenyLawyersBlog.Com: Similar to the blog above that exclusively addresses white-collar theft crimes.

Founded by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC represent those accused of crimes through the New York City region.

Queens District Attorney Richard Brown keeps motoring on obtaining one Enterprise Corruption indictment after another. Whether the top prosecutor in Queens is chasing down identity thieves, gamblers or other alleged fraudsters, when he finally catches them he brings out the "big guns" found in the New York Penal Law. According to a press release from earlier today, DA Brown has done it again. Eighteen individuals, arrested for and charged with Enterprise Corruption, Grand Larceny, Criminal Possession of Stolen Property, Falsifying Business Records, Criminal Possession of a Forged Instrument and Conspiracy, are all alleged to be part of an auto loan fraud scheme. It appears that obtaining indictments against these individuals was not enough to satisfy DA Brown's voracious appetite for justice as he also obtained indictments for three separate corporations.

According to prosecutors, eighteen individuals and three corporations have been
indicted for their alleged roles in two massive automobile loan fraud schemes that resulted in nearly two million dollars in losses to 18 financial institutions on 47 loans. A fairly basic, yet lucrative, scheme it is alleged that the defendants were involved in obtaining loans to purchase high end automobiles - BMWs, Mercedes, Porsches - with the assistance of "straw borrowers." These borrowers had good credit that enable them to allegedly purchase vehicles that were later resold or rented on the black market and used in criminal activities.

The scheme is alleged to have been perpetrated as follows: (1) A "straw borrower" would obtain bank loan through the use of their good credit. (2) The "straw borrower" would share his/her personal information so that a "straw purchaser" could buy a vehicle with that loan. (3) After a few payment periods, the "straw buyer" or whoever was in charge of payment, would default on the loan. (4) Because of the agreement between the automobile dealerships and the banks, after a few payments were made, the "straw buyer" or the bank would be liable for the loan and not the car dealership. As a result, the car dealership, which may have been in cahoots, would get the money free and clear. (5) During some of the purchases, it is alleged that cars were not actually bought even though the car dealerships received the loan money from the victim banks.

It is alleged that recruiters for this scheme approached "straw borrowers" by promising them kickbacks when the vehicles were either sold or the money for the fraudulent loan obtained for the vehicle was dispensed. Further, it is claimed by prosecutors that "straw borrowers" were told payments would be made and the borrower's credit would increase as a result. Despite these alleged promises, the loans went into default.

As a result of this investigation, prosecutors believe that not only were individual fraudsters involved in the nearly two million dollar scheme, but that loan companies and car dealerships aided in the fraud.

The Criminal Charges

Briefly, the charges against the defendants and the companies are as follows:

Enterprise Corruption: A "B" felony requiring mandatory prison for a first time offender up to twenty five years. Likely tied to the allegations that the crew had a structure and common purpose to make money for the criminal enterprise.

Grand Larceny in the Second and Third Degrees & Criminal Possession of Stolen Property in the Second and Third Degrees: "C" and "D" felonies punishable by up to fifteen and seven years in prison respectively. These charges appear to be associated with the individual loan thefts from the bank as well as the possession of the stolen funds. Because there were numerous victims, the crimes of Grand Larceny were not aggregated into one single offense of Grand Larceny in the First Degree for a theft in excess of one million dollars.

Criminal Possession of a Forged Instrument in the Second Degree: A "D" felony punishable by up to seven years in prison. This crime likely relates to fraudulently completed loan paperwork and other documents.

Falsifying Business Records in the First Degree: An "E" felony punishable by up to four years in state prison. This crime is associated with the falsely drafting, writing and completing information on loan applications and other documents that were used in the course of the bank's business.

Conspiracy in the Fifth Degree: An "A" misdemeanor punishable by up to one year. While this crime is not "heavy," it is used to tie together other acts that may not be admissible and to give prosecutors jurisdiction where they may not have it otherwise.

The Defendants

DICKENSON ENTERPRISE (12 defendants)

Duane Box, Danien Brown, Ernest Butler, Andre Dickenson, Alain Galette, Natasha Green, Maurice Hayes, Marvin Jackson, Christopher Lewis, Adrian Sylvester, Carl Tappin, Christopher Vincent

NDAULA ENTERPRISE (9 defendants)

Quate Alexander, Yusekbek Makhamadaliev, Alexander Ndaula, Quiet Money Realty LLC (a.k.a. EZ Approval Auto Sales and Leasing LLC), Rear Guard Enterprises, Ronda Richardson, Luis Santiago, Alain Saint Phard, Silver Arrow Auto Sales,

Where

Queens County Supreme Court Criminal Term

Whether prosecutors' allegations hold water and what defenses the accused will pursue in the next few weeks will certainly be seen. Make no mistake. Assistant District Attorneys and their adversaries representing the defendants have significant work ahead of them.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent the accused throughout the New York City region.

To learn more about the crimes listed above including Enterprise Corruption, Grand Larceny, Criminal Possession of a Forged Instrument and Falsifying Business Records, please follow the highlighted links.

Additional information on these crimes ranging from analysis of legal decisions, criminal statutes and newsworthy cases, is also available on the NewYorkCriminalLawyerBlog.Com. Within the next week, Crotty Saland PC's new website and blog, NewYorkTheftAndLarcenyLawyers.com and NewYorkTheftAndLarcenyLawyersBlog.Com will be "live" with significant information on New York's theft and larceny laws.

While they may be best known for serving choice cut steaks, a few of New York's most famous steakhouses may need to add an arrest profile to their Zagat's ratings. According to reports, Manhattan District Attorney Cyrus Vance, Jr.'s prosecutors busted a credit card fraud ring allegedly run by men and women whose day jobs were to serve as waiters at some of New York's flagship restaurants. From Smith and Wollensky, Capital Grille and Wolfgang's Steakhouse in Manhattan to Morton's in Stamford and the Bicycle Club in New Jersey, it is alleged that more than two dozen arrested waiters dined on patrons' credit card numbers as their unsuspecting customers grazed on filet mignon, porterhouse and the occasional rib eye (bone in, of course). Although the allegations have yet to fully materialize, it is alleged that these waiters stole approximately fifty account numbers from the high-end credit cards, including the fabled American Express Black Card, and used these account numbers to go on expensive shopping sprees.

The means by which these accused waiters perpetrated the Enterprise Corruption, Identity Theft (although not technically charged with this crime), Grand Larceny, Criminal Possession of a Forged Instrument and other crimes is clear. The alleged fraudsters used hand held skimming devices to kick off the alleged scam. Fairly easy to purchase online, these devices can be hidden in one's palm and can scan a credit card in the time it takes to take one swipe. Once the reader glides over the magnetic strip, the account number is then stored for later use. Armed with the credit card numbers, the alleged defendants then encoded a new credit card with the stolen account number.

In two distinct twists that I have seen as a former Manhattan prosecutor and member of the Identity Theft Unit Major Case section, the fraudsters would encode either a completely fake credit card with the stolen account number or a "real" credit card that may have expired or is no longer legitimately being used. Depending how advanced or eager a team of thieves was, either a fraudulent identification was used to match the fake credit card or the legitimate matching identification was utilized where the credit card was a modified, yet properly issued, instrument. It is worth noting that in schemes such as these, a retailer or service provider who accepts the encoded credit card can often catch the fraudster if he or she is diligent. In many cases, a receipt that is printed contains the name of the proper or correct cardholder. While the name on an encoded card and fake identification will match, the name printed on the receipt will reflect the rightful accountholder.

In this arrest and indictment, the alleged credit card fraudsters used over $1,000,000 in ill-gotten gains to make purchases at high-end stores including Chanel. In fact, according to the Manhattan District Attorney's Office press release "[s]earch warrants executed yesterday in conjunction with the investigation resulted in the seizure of luxury goods, including more than $1 million worth of luxury watches and a cache of expensive wine, and...$1.2 million in cash; as well as skimming devices and the equipment necessary to manufacture fraudulent credit cards and driver's licenses."

What will be interesting to learn as this case develops is what roles did each person have. Although prosecutors have alleged it existed, was this crew truly a criminal enterprise and therefore subject to Enterprise Corruption? Merely because prosecutors give titles to or characterize defendants as "manager," "skimmer," "shopper" and "complicit customers" does not automatically mean there is an ascertainable structure where the members all worked toward the single criminal goal. Certainly, if true, these defendants will face a significant risk of prison.

Additionally, what, if anything, did these defendants state when they were arrested? Do prosecutors have video surveillance of purchases, signatures on fraudulent receipts or records linking certain waiters serving customers whose cards were later compromised? While I have my ideas of possible means to defend against these allegations, what defense strategy will ultimately prevail? Again, many of the defendants are charged as part of the criminal enterprise and are facing mandatory state prison on a "B" felony if convicted. A defense needs to be identified and implemented soon.

Although many people may wish that it was, Identity Theft is not going away. While many New York's may have been rightfully concerned when Jimmy McMillin preached during the gubernatorial election that the "rent is too damn high," denizens of the Big Apple should have a much greater concern. Make no mistake. Identity Theft is too damn easy.

WHO: Approximately two dozen waiters at top New York City and suburban steakhouses including Smith and Wollensky, Capital Grille, Wolfgang's, Morton's and the Bicycle Club. Defendants include: RICHARD BERTELETTI, JACOB BLUMENFRUCHT, ERIC BRAHMS, EMILY BRUMFIELD BRAHMS, DANIEL BURNS, ELLE CHONG ROZAN a/k/a ELOISE A. CHONG, ANTHONY COFFARO, MICHAEL DEJESUS, JOSE FELIX FERNANDEZ, KENNETH FRANQUIZ, DAVOR GONCIN, IZAK IRWIN GUTMAN, LUIS DAMIAN JACAS, a/k/a DAMIEN JACES, EDDIE KYLE, ANTHONY MARRA, PETER McGUIRE, JENNIFER MORGAN, JAMES O'CONNELL, RICHARD REICHBACH, TASHA ROSENHAUS, MARTHA RUBIANO, SASHA SCOLLIN and BRIAN TORREY.

ALLEGATION: Swiping and stealing high-end credit card account numbers from patrons, encoding fraudulent credit cards with that information and using the credit cards to make purchases.

CRIMES: B felony of Enterprise Corruption. Minimum of one to three years and maximum of eight and one third to twenty five years in prison for a first time offender. C felony of Grand Larceny in the Second Degree. Potential punishment up to five to fifteen years for a first time offender. D felony of Criminal Possession of a Forged Instrument in the Second Degree. Potential punishment of up to two and one third to seven years in prison for a first time offender. E felonies including Conspiracy in the Fourth Degree, Scheme to Defraud in the First Degree and Grand Larceny in the Fourth Degree. Potential punishment of up to one and one third to four years in prison for a first time offender.

PROSECUTING AGENCY: Manhattan District Attorney (New York County)

To learn about the New York crimes of Enterprise Corruption, Identity Theft, the multiple degrees of Grand Larceny, Criminal Possession of a Forged Instrument and other offenses, please follow the highlighted links back to CrottySaland.Com. There you will also find links to the NewYorkCriminalLawyerBlog.Com where you will find analysis of not merely criminal statutes, but legal decisions interpreting those statutes and reviews of cases in the New York area news. In addition to these resources, the New York criminal lawyers at Crotty Saland PC anticipate that NewYorkTheftAndLarcenyLawyers.Com and associated blog at NewYorkTheftAndLarcenyLawyersBlog.Com will have further relevant and practical information on white collar theft offenses once they go "live" by the end of November 2011.

Founded by two former Manhattan prosecutors, Crotty Saland PC is a New York criminal defense firm representing those accused of white collar, theft and fraud crimes throughout the New York City region.

According to Brooklyn District Attorney Charles Hynes, a scamming former stock broker managed to cheat and lie his way back into the 1% at the expense of fellow one percenters and on the backs of the 99% as well. While the arrest and indictment of Boris Shteyngart will likely not stop the #OWS from disrupting lower Manhattan on Thursday, it may send a strong message to would be thieves in Kings County. It is alleged in a multi-count indictment that Shteyngart defrauded a dentist from the "Show Me State" out of $142,000 and an 84 year old retiree out of $10,00 which consisted of a significant portion of the latter's life savings. All of this, according to Brooklyn prosecutors, was stolen and used to support Shteyngart's lifestyle.

DA Hynes claims that Shteyngart perpetrated his criminal scheme by "cold calling" potential investors. At some point after his alleged victims began to trust him, Shteyngart would convince these "investors" to send him money by wire transfer or check payable to "Bori." Once he received these checks, prosecutors allege that Shteyngart merely added an "s" next to "Bori." Not rocket science, "Bori" became "Boris" and Shteyngart was able to deposit the checks in his own account. In total, prosecutors believe the scheme netted the defendant approximately $200,000.

The indictment charges Shteyngart with Grand Larceny in the Second Degree, a "C" felony punishable by as much as five to fifteen years for a first time offender. Additionally, the indictment charges the defendant with the "D" felonies of Grand Larceny in the Third Degree and Forgery in the Second Degree. Both of these crimes are punishable by up to two and one third to seven years in state prison. An "E" felony, the indictment also charges Shteyngart with Scheme to Defraud in the First Degree. This offense is the least significant felony crime, but is still punishable by up to one and one third to four years in prison. Beyond these felonies, Shteyngart is also charged with Criminal Impersonation in the Second Degree, an "A" misdemeanor.

Although the Brooklyn District Attorney's Office press release indicates that the defendant faces up to 40 years in state prison, such a sentence is far from likely. While many factors, including Shteyngart's ability to pay back his victims, may mitigate his conduct, according to press coverage of the case, the defendant is not trying to mitigate his actions. In fact, his attorney has publicly denied the allegations and asserted that investigators rushed to judgment. For Shteyngart's sake, I hope his attorney is right.

On an interesting side note, this indictment comes on the heals of another white collar bust in Manhattan where Cyrus Vance, Jr. announced the indictment of three men in a debit card skimming scheme that allegedly netted the accused nearly $300,000 from numerous victims. Both these indictments make it overwhelmingly clear that white collar, larceny and theft crimes are still thriving in New York and beyond.

To learn more about the crimes of Grand Larceny, and Forgery, please follow the highlighted links above to the Crotty Saland website. There you will not only find detailed information about these statutes, but links to the NewYorkCriminalLawyerBlog.Com. The blog, another excellent source of information, contains analysis of criminal statutes, legal decisions further defining those crimes, and cases that have played out in the New York City news.

Founded by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC represent those accused of white collar crimes throughout the New York City region.

Additional resources for New York larceny crimes can be found at the NewYorkTheftAndLarcenyLawyers.Com website and NewYorkTheftAndLarcenyLawyersBlog.Com going "live" in the next couple of weeks.

As prolific as the drug trade was in Manhattan and all of New York City from the 1970s through the 1990s, Identity Theft has easily surpassed it. In fact, Identity Theft and related crimes have crept into almost every business - private and public - well beyond the offices and apartments of Gotham. Arguably, Identity Theft, in terms of the volume of crimes perpetrated and the associated damages, makes almost every other offense in the New York Penal Law seem pedestrian. Case in point, Manhattan District Attorney Cyrus Vance just unsealed an 81 count indictment against Nikolai Ivanov, Dimitar Stamatov and Iordan Ivanov for allegedly committing a fairly common and easy to execute scheme. Although this indictment is "insignificant" when compared to the Queens District Attorney's Office's indictment of over 100 people in a multi-million dollar Identity Theft scheme, It is alleged that N. Ivanov, Stamatov and I. Ivanov scammed as many as 1500 people by placing skimming devices and disguised cameras on ATMs early this year. These ATM machines, located in Astor Place, Union Square and the East Village, were treasure troves of personal information that prosecutors claim were used to help the defendants steal nearly $300,000.

The alleged debit card skimming scheme, one that is routinely perpetrated throughout New York and other cities and states, was fairly easy to pull off. It is claimed that the defendants placed devices on the "mouth" or access point where a customer would slide his or her debit card into an ATM machine. As the customer conducted his or her regular business, a hidden video camera pointed at the keypad recorded the PIN number or code used to access the bank accounts. With this information, the defendant's then allegedly accessed the bank accounts at different locations in New York, Canada and other states. It is alleged by the Manhattan District Attorney's Office that the defendants placed eleven different skimming devices at four separate Manhattan ATM locations. Ultimately, however, it is alleged that one of the Ivanov brothers, along with Stamatov, was arrested in May when he attempted to retrieve one of the skimming devices in Manhattan.

Make no mistake. Each of these defendants faces significant charges relating to their alleged actions. These crimes include Grand Larceny in the Second Degree, Identity Theft in the First Degree, Burglary in the Third Degree, Criminal Possession of Forgery Devices, Grand Larceny in the Third Degree, Larceny in the Fourth Degree, and Petit Larceny. Other than Petit Larceny, these crimes range from a "C" felony punishable by up to fifteen years in prison to "D" and "E" felonies punishable by up to seven and four years in prison respectively.

It appears from the press release that evidence against the defendants is both direct and circumstantial. Obviously, if true, detectives arrested the defendants with or as they were retrieving skimming devices. Certainly, it is possible that these devices had already recorded account information. Furthermore, there may have been recordings from surveillance videos at points of compromise or withdrawal locations. Additionally, prosecutors may link compromised accounts to other accounts that were accessed at ATMs during the same date and times. Only a fraction of potential evidence, if the defendants admitted to the criminal actions it would further strengthen the prosecution's case. What will happen to these defendants and the defensive strategy they implement is yet to be seen, but will likely play out over the next few weeks and months.

To learn more about the Identity Theft, Grand Larceny, Criminal Possession of Forgery Devices and Burglary, review the Crotty Saland PC website where each of these crimes is analyzed. Further relevant and practical information on these crimes can be found throughout the NewYorkCriminalLawyerBlog.Com where statutes, legal decisions and cases in the news are assessed.

Additional resources for New York larceny crimes can be found at the NewYorkTheftAndLarcenyLawyers.Com website and NewYorkTheftAndLarcenyLawyersBlog.Com going "live" by the end of November 2011.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. Representing the accused throughout the New York City region, one of our founding New York criminal lawyers, Jeremy Saland, served in the Identity Theft Unit Major Case Section.

Crimes involving credit cards and debit cards are growing throughout New York City and the region. For example, using another person's credit card may constitute the crime of Identity Theft. Possessing a fake or fraudulent credit card likely violates Criminal Possession of a Forged Instrument. Even more common than these offenses, possessing a stolen credit card or stealing the same is either Criminal Possession of Stolen Property or Grand Larceny respectively. While the felony crimes listed above are all fairly common, not all credit card crimes in New York are that obvious. As will be addressed in this blog entry, what if you possess a stolen credit card, but the credit card is no longer valid or is expired? If you cannot use the credit card, is that a defense to Criminal Possession of Stolen Property in the Fourth Degree pursuant to New York Penal Law 165.45(2)? Will your criminal lawyer have more than just a bark, but in fact a bite in his attempt to invalidate the allegations or have your indictment dismissed?

Directly on point, People v. Johnson, 50 A.D.3d 379 (First Dept. 1995) addressed these questions about the possession of stolen credit cards that had since expired. In Johnson, the defendant had been convicted after trial in a Manhattan Supreme Court for felony possession of a stolen credit card. The crime, as noted above, was Criminal Possession of Stolen Property in the Fourth Degree. At trial, testimony established that the defendant tried to make at least one purchase with credit card that was expired. In one of his many arguments, the defendant's attorney claimed that a conviction for this crime could not stand in light of the fact that the credit card in question was not and could not be used. Although the argument seemed reasonable (after all, you cannot withdraw money or make purchases from an expired credit card or debit card and therefore, no real injury would be sustained by the true card holder), the trial court gave no such instruction to the jury. Ultimately, the jury convicted the defendant for this and other crimes. Not the end of the process, the defendant appealed the conviction.

The Appellate Division, a higher level appeals court that reviews trial court convictions and decisions, did not agree with the defendant's counsel. In fact, the court found that it was irrelevant and made no difference at all whether the credit card or debit card had expired. Moreover, it made no difference that when the defendant attempted to use the credit card that the credit card was either revoked or cancelled. The court further found that "[a]n expired or otherwise inactive credit card may be used to make a purchase on credit, within the meaning of General Business Law § 511(1), if a merchant accepts it, albeit improvidently, thus extending credit to the purchaser." In short, the viability or useability of a stolen credit card is not an element that needs to be proven beyond a reasonable doubt by Assistant District Attorneys at trial for Criminal Possession of Stolen Property in the Fourth Degree.

Although Johnson is a fairly recent decision, it is not the first decision of its kind. After another defendant's conviction for Grand Larceny of a credit card post-trial, the defendant challenged the legality of the New York Penal Law 155.30(4) count against him. Similar to the Johnson court, albeit in a theft context as opposed to possession, the court in People v. Winfield, 145 A.D.2d 449 (2nd Dept. 1988), upheld the defendant's conviction and, like the Johnson court, noted that validity of credit card is immaterial to this felony crime.

Remember, stealing or possessing stolen debit or credit cards is only one of many potential felony crimes in New York. An "E" felony that can land you behind bars for up to four years, the punishment associated with this crime is serious, but not necessarily the most significant one found in the New York Penal Law.

To further educate yourself on crimes involving theft, larceny and credit card fraud in New York, a search of the NewYorkCriminalLawyerBlog.Com will reveal significant information ranging from analysis of New York criminal statutes and legal decisions to review of cases in the news and local media. Additionally, Crotty Saland PC's NewYorkTheftAndLarcenyLawyers.Com (going live November 2011) and associated blog is dedicated to white collar theft crimes.

Established by two New York criminal lawyers who served as prosecutors in Robert Morgenthau's Manhattan District Attorney's Office, Crotty Saland PC represents individuals and corporations in all criminal matters.

Any New York criminal lawyer will tell you that the best way to avoid an arrest, indictment or conviction is to steer clear of any and all criminal conduct. While that may sound easy, often time individuals make mistakes or get caught up in criminal acts that they truly had no intention of getting involved with in the first place. Two particular crimes that prosecutors can elevate from less serious conduct into felony crimes are the theft of credit or debit cards and the possession of stolen debit or credit cards. These two felony crimes, New York Penal Law 155.30(4) and 165.45(2), are violations of Grand Larceny in the Fourth Degree and Criminal Possession of Stolen Property in the Fourth Degree. Simply, if you steal a credit card or debit card or possess a stolen debit card or credit card then you will face up to four years in prison. Each individual card is a separate chargeable offense. As a result, if you have three stolen credit cards, for example, each individual credit card possession constitutes a separate and distinct crime with its own potential punishment.

Cases involving felony credit card theft and criminal possession of a stolen debit cards truly illustrate the value of both educating yourself on the law and retaining an experienced criminal lawyer to defend you against the criminal allegation. As the following case demonstrates, in terms of credit card and debit card crimes, mistakes can be made by both inexperienced criminal attorneys as well as their prosecutorial counterparts. Here, the question is clear. Are all debit cards, credit cards, and ATM cards created equal? The answer is clear, but often difficult to fully grasp.

In Matter of Kimberly H., 196 A.D.2d 192 (4th Dept. 1994), the defendant, a juvenile, had been arrested and charged with Criminal Possession of Stolen Property (NY PL 165.45(2)) after she was caught with an automated teller machine (ATM) card. The defendant had taken her mother's ATM card to withdraw $600 from her mother's bank account. The issue ultimately addressed by the court was whether or not a card that is strictly an ATM card used to withdraw money from an automated teller machine is also a debit card or credit card for the purpose of criminal statutes. If so, then Kimberly H. would have violated New York Penal Law 165.45(2) and New York Penal Law 155.30(4) (Criminal Possession of Stolen Property in Fourth Degree and Grand Larceny in the Fourth Degree respectively). It not, then while Kimberly H.'s actions may have been a misdemeanor offense, but she did not commit a felony debit card or credit card crime.

According to New York General Business Law 511(9), a "debt card" is specifically defined. It is this definition that is applicable to the New York Penal Law. A key characteristic of a debit card defined in this section is that the card can be used without a personal identification number or code to make a purchase or lease property or services. Alternatively, a "credit card" is defined according to New York General Business Law 511(1) and is not the same as a debit card. Instead, a card is used to obtain cash advances or a loan or credit. Like a "debit card," a "credit card" can also be used to purchase property or services or lease the same. Clearly, these definitions, while helpful, distort what we all believe is either a credit card or debit card. Prosecutors are not immune from these misunderstandings.

Again, in terms of the Kimberly H. case, the defendant had used her mother's ATM card to withdraw $600. Obviously, instead of purchasing property or leasing the same, cash was withdrawn. Moreover, a pin number was used to take the money. In finding that the ATM card was neither a credit card or debit card as defined by the law and, as a result, the defendant's use and possession was not a felony, the court found that:

"Although the definition of credit card in the General Business Law would appear to be clear and unequivocal, making resort to extrinsic matter inappropriate ( see, Sega v. State of New York, 60 N.Y.2d 183, 191, 469 N.Y.S.2d 51, 456 N.E.2d 1174), any further clarification that may be needed is readily furnished by examining the most recent legislative history of General Business Law § 511. That history supports the view that the Legislature, for whatever reason, failed to include ATM cards within its expanded definition of credit card. When the term "cash advance" was added to the definition in 1970 (L.1970, ch. 988, § 1), the Senate memorandum noted that "[a] significant feature of the bill is the extension of the definition of credit card to include any such device used to obtain a 'cash advance or a loan.' This new language has been inserted to cover bank credit cards, a device presently not covered by the existing definition" (NY Senate Mem, 1970 N.Y.Legis.Ann., at 107 [emphasis provided] ). The Budget Report on 8402-A stated that the bill would "expand the definition of 'credit cards,' to include cards that may be used to obtain cash loans" (Mem of Div of Budget, Bill Jacket, L.1970, ch. 988 [emphasis provided] ). The amendment enabled the holders of credit cards to withdraw funds on their credit by obtaining cash advances or cash loans, not cash withdrawals of their own funds."

Practically speaking, this case may have limited value today in that ATM cards, devices that solely enable the user to obtain cash, are dinosaurs. While there are likely many out in the market from a numeric standpoint, most of these ATM cards have been replaced by multi-use cards. The value of this case and the review of the statutes defining credit cards and debit cards, however, is still significant. Should prosecutors charge you in an indictment for possessing a stolen credit card when in fact it is actually a debit card, a dismissal of the indictment or an acquittal at trial might be in the cards for you.

To further educate yourself on the crimes of New York Grand Larceny and Criminal Possession of Stolen property as they relate to credit cards and debit cards, please follow the highlighted links above. Additionally, a review of the NewYorkCriminalLawyerBlog.Com has a wealth of information on these an other crimes including a review of criminal statutes, legal decisions and cases in the news. Sometime by November 2011, the NewYorkTheftAndLarcenyLawyersBlog.Com will be "live" with more valuable content as to theft and larceny crimes in New York.

Founded by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC represent the accused throughout the New York City region.

The New York criminal lawyers and former Manhattan prosecutors at Crotty Saland PC are pleased to announce that one of our clients pleaded guilty to a violation of Disorderly Conduct after being charged with two felonies of Grand Larceny in the the Third Degree (NY PL 155.35) and Identity Theft in the First Degree (NY PL 190.80) as well as three misdemeanor counts of Forgery in the Third Degree (NY PL 170.05). If convicted, not only would our client have a felony record, but he would have faced up to two and one third to seven years in prison.

It was alleged that our client had perpetrated "credit card fraud" after he randomly received a pre-approved credit card application in his mailbox addressed to another person. Upon completing the application, our client allegedly opened a secondary credit card account under his name. Upon doing so, prosecutors claimed that our client purchased a Honda Accord and filled out a loan application for that vehicle in the amount of $25,000. Using the credit card he allegedly obtained fraudulently, our client charged $7,000 as payment to Honda. As a result of these alleged actions and upon recognition by the creditor bank that there were issues with the use of the credit card, detectives from the New York City Police Department arrested our client. Shortly thereafter, prosecutors charged our client with these felonies in Manhattan.

The charges our client faced stemmed directly from his alleged conduct. Although additional charges could have been brought, the prosecution's apparent theories were that our client committed Identity Theft when he signed for and opened an account with another individual's name and account information. The Grand Larceny charge was a result of the use of a credit card and the "theft" of the vehicle. In total, the value of the losses were in excess of $3,000 but not more than $50,000. Lastly, the Forgery counts were tied to his alleged actions of filling out certain paperwork including loan and credit card applications falsely with the intent to defraud.

Unfortunately for our client, the evidence against him was powerful. In fact, our client was in possession of the Honda. Fortunately, however, the New York criminal lawyers at Crotty Saland PC took the appropriate steps not to challenge the evidence head on, but to mitigate our client's conduct. In doing so, we impressed upon prosecutors that our client not only came from nominal means to graduate from a top college, but he used this arrest to get his life back on track. With ongoing proof of his graduate studies, documentation as to other issues and treatment our client was dealing with, full restitution and other steps taken by our criminal lawyers including a "Queen for a Day," our client was offered a non-criminal disposition. This non criminal violation will afford our client the opportunity to grow from a lapse in judgment and still have a productive life upon his graduation from graduate school.

While this disposition was hard fought and represents one of many successful criminal case results we have achieved for our clients throughout New York, it was also a unique one. As much as any attorney may wish that he or she can guarantee a particular result for a client because of past results, this is not the case. What is more important is that our client recognized the legal predicament he faced. Upon doing so, he and our attorneys formulated a plan to best defend him against the allegations. Our diligence and efforts certainly paid off tremendously. Obviously, all of the details of this defense are not set forth here, but our defense ultimately was the best one for our client.

For a wealth of information on the crimes of Grand Larceny, Identity Theft and Forgery, please follow the highlighted links. There you will not only find practical analysis of the criminal statutes, but associated legal decisions and commentary on cases in the news. For additional information on New York theft and larceny crimes, please visit the NewYorkTheftAndLarcenyLawyers.Com website as well as the NewYorkTheftAndLarcenyLawyersBlog.Com.

Founded by two former Manhattan prosecutors who served under Robert Morgenthau, the New York criminal lawyers at Crotty Saland PC represent the accused throughout the New York City region.

As both a New York criminal lawyer and as a Manhattan prosecutor, I have faced the issue of determining the legal value of property in a Grand Larceny case that was not readily apparent. While a theft of cash or certain property is easily ascertainable based on market value or the actual value of the currency, some items are not as clear. Fortunately, for prosecutors, criminal attorneys, victims and the accused, New York's theft statutes set forth a guideline to follow. More specifically, certain written instruments, not including such items as some public and corporate bonds, have a value as calculated as established in New York Penal Law 155.20(2).

Regardless of whether or not a written instrument has actually been issued or delivered, a value has to be placed on those items to determine not only the degree of the Grand Larceny charged in a New York court, but to also come up with a restitution number should "payback" be part of any disposition. Accordingly, NY PL 155.20(2) deciphers the calculations as follows:

NY PL 155.20(2)(a)

If the written instrument in question establishes a debt such as a promissory note ore a personal check, the value of that check or promissory note is the value that is due. Ordinarily, according to the statute, this amount is a combination of the face value, ie, the amount drafted or written on the check, less what has been already paid back or satisfied. An interesting question, and one which will be addressed in another blog entry, is if the stolen check is drafted in an amount that exceeds funds available, does the amount drafted still the bar for determining value? Furthermore, if there never were proper funds to back the amount indicated, is the crime a factually impossible crime to commit, and, if so, is it possible to merely attempt that crime as opposed to actually complete it? If the answer is the latter, then the crime, as an attempt, would be a full degree less than the completed offense.

NY PL 155.20(2)(b)

The value of a ticket or similar document that gives an individual the right to obtain transportation (flight, bus, train, etc.) or to obtain some form of entertainment (movie, concert, football game, etc.), is fairly straight forward. Whatever the price listed on the ticket is, that is the value for the purpose of a larceny or theft crime in New York. If that value is $1,000 or less, then the crime would be a Petit Larceny (NY PL 155.25). If the value exceeds $1,000, then the theft crime would be a degree of Grand Larceny. A more complex question is how to determine the value when it is not drafted on the ticket. In such circumstances, the price paid for the ticket or an equivalent ticket would be utilized to ascertain value.

NY PL 155.20(2)(c)

In more complicated cases involving thefts of written instruments that may impact a legal right or obligation of value, the value of that particular written instrument is established by determining first whether or not the owner of the instruments might reasonably suffer due to the loss of the instrument. If he or she would suffer a loss, the value is the economic loss he or she would reasonably expect as a result of the loss. Clearly, these cases are much more speculative in nature.

It is worth noting that even the brightest of judges, prosecutors and criminal attorneys cannot agree on value. Grand Larceny and the valuation of property is far from easy outside a straight forward Embezzlement scheme. Fortunately, the burden, however, always rests with an assistant district attorney and not the defendant. If the value cannot be specifically established or proven by any party, there is still something for prosecutors to fall back on. In cases where the value is inconclusive, NY PL 155.20(4) allows for a legal finding that the value of the property is less than $250.

For a wealth of practical and easily digestible materials on New York Grand Larceny, please follow the hyperlinks above to the Crotty Saland website's Grand Larceny location. Alternatively, the NewYorkCriminalLawyerBlog.Com as well as NewYorkTheftAndLarcenyLawyers.Com are both tremendous resources on usable information pertaining to theft and larceny statutes, crimes and legal decisions.

Founded by two former Manahttan prosecutors, the attorneys at Crotty Salan PC represent the accused throughout the New York City region.

In an earlier entry relating to Extortion, a subset of Grand Larceny, I identified and differentiated the difference between the Grand Larceny Extortion statutes found in New York Penal Law sections 155.05(2)(e) and 155.40(2). This entry will deal with the criminal defense to the crime of Extortion in NY that is established by statute. Whether this affirmative defense is relevant or applicable to the Grand Larceny and Extortion allegation in your particular case, that is something to identify and asses with your New York criminal defense attorney and Extortion lawyer.

Pursuant to New York Penal Law section 155.15(2):

In any prosecution for larceny by Extortion that is perpetrated by instilling fear in the target of the Extortion that the target or another person will be charged with a criminal offense, it is an affirmative defense that the extorter reasonably believed the alleged charge was accurate. Beyond this belief that the alleged criminal conduct of the extortee, the single purpose of the extorter must solely be to compel the extortee to take "reasonable action to make good the wrong which was the subject of such threatened charge."

Dissecting this defense, it is critical that an extorter truly and genuinely believe that the crime committed by the extortee be true. Obviously, this will be an issue of fact. Additionally, even if the belief is true and even if the extortee actually committed a crime, the only purpose permitted by this defense for the actions of the extorter is to rectify and fix the "wrong" that the extortee allegedly perpetrated. In other words, the extorter cannot utilize the extortee's criminal act to gain financially in an unrelated matter.

An additional defense to an accusation of Extortion is not found in a statute but is one that the watchful eye of an experienced New York criminal lawyer or Extortion attorney. In the voluminous case law that has evolved around the crime of Grand Larceny by Extortion in New York, the courts have made it overwhelmingly clear that certain terms and words must be set forth in the indictment charging this crime. Unlike common law Grand Larceny where it is sufficient to merely state a Grand Larceny was perpetrated, the prosecution must set forth in an indictment for Grand Larceny by Extortion that the Grand Larceny was in fact not merely a Grand Larceny, but one committed through Extortion. If the prosecution fails to do so, then the indictment should be dismissed.

As a hypothetical, if you stole $5,000 from a woman by taking the money from her account without her permission, the prosecution would not have to set forth with any additional specificity that the crime was anything other than "regular" Grand Larceny in the Third Degree. However, if you stole $5,000 from that same woman by committing the crime of Extortion, the indictment language would have to plead the means by which the theft took place, i.e., Extortion. Although this may seem minor, if the prosecution overlooks this fact your criminal defense attorney should be able to argue that the indictment is not correct or proper. If the indictment is not pleaded properly within its "four corners," you may be looking at a dismissal. Whether the prosecution can or will re-present to the Grand Jury, you certainly will have at least won one significant battle in your criminal case and re-asssess the next phase of your defense.

For detailed analysis of New York Grand Larceny statutes and the subset of Extortion, follow the highlighted link. A wealth of information is also available on the NewYorkCriminalLawyerBlog.Com. For further information on other larceny and theft crimes in New York, Crotty Saland PC will be publishing the NewYorkTheftAndLarcenyLawyersBlog.Com as well as the sister website, NewYorkTheftAndLarcenyLawyers.Com during the month of October, 2011.

Crotty Saland PC is New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland represent the accused throughout the New York City region.

On a daily basis, tourists and everyday denizens of New York City are either arrested or given Desk Appearance Tickets for violating New York Penal Law 165.15, Theft of Services. An "A" misdemeanor punishable by up to one year in jail, Theft of Services arrests and Desk Appearance Tickets routinely involve a passenger in a cab or a diner at a restaurant who fails to pay his or her tab or bill. While any arrest is concerning, and often requires the assistance of a criminal attorney to navigate the process, what exacerbates a Theft of Service arrest is that it can have a significant impact on professional licenses, certifications and immigration.

Putting aside the potential consequences of a Theft of Services arrest in New York City, there is a small (very small) body of cases that question whether or not it is a violation of New York Penal Law 165.15(2) if you drink at a bar and fail to pay your bill. In pertinent part, subsection two of NY PL 165.15 states that you are guilty of a crime if you intend to avoid payment for restaurant services and actually do not pay for those services. Well, according to People v Sei Young Choi, 170 Misc.2d 598 (Queens Cty Crim. Ct 1996), this may not always be the case in the alcohol and pub/tavern context.

In Choi, a defendant consumed over $200 worth of alcoholic beverages at a New York City bar and refused to pay for those beverages. In fact, the complaint stated that the defendant did not have permission or authority to drink the spirits without paying for them. In dismissing the case as facially insufficient, the court did not rule on the factual issues of whether or not the defendant did drink or did not pay. Instead, the court recognized that nothing in the complaint (information) established that the bar was a restaurant or that that the consumption of alcohol was a restaurant service. In other word, the court took a strict reading of the statute and determined that "[i]t appear[ed] from the defendant's arguments and a reading of the statute that the alcoholic beverages are not restaurant services in that a bar is not necessarily a restaurant." See also People v Klas, 79 Misc 452 (Onondaga Cty Ct 1913). ("[t]he [old] statute, which it is claimed the defendant violated, only protects a hotel keeper for lodging, food and accommodations furnished, and in so far as the bar bill is for liquors no recovery can be had therefore.")

Despite the decision from 1913 that addressed the predecessor to the Theft of Service Statute as well as the Choi case, the reading of these decisions from the perspective of an experienced New York criminal lawyer reveals something different. That is, Choi does not say that alcohol and bars are never covered under New York Penal Law 165.15(2) provisions addressing restaurant services. Instead, Choi makes it clear the prosecution must establish in an information or complaint that the bar is part of (or is) a restaurant and the serving of alcohol is one of those services. To that end, a review of People v. McDonald, 179 Misc.2d 479 (New York Cty Crim. Ct. 1999) exemplifies the type and degree of corroboration necessary. There a sufficient nexus was established linking a hotel bar and services of alcohol with a restaurant and associated restaurant services.

Whether the issues and cases briefly mentioned above, ie, whether or not a complaint against you establishes more than a "drink and dash" from a bar, is something that you and your own counsel should discuss and analyze.

Extensive information on New York Theft of Services (as well as collateral consequences), Desk Appearance Tickets and other crimes can be found through the highlighted links above. Additional resources beyond the Crotty Saland PC website include the New York Criminal Lawyer Blog (analysis of legal decisions, statues and cases in the news) as well as NYDeskAppearanceTicket.Com.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan Assistant District Attorneys. The New York criminal lawyers at Crotty Saland PC represent those accused of crimes throughout New York City and beyond.

On its face, the Grand Larceny statutes in New York are relatively straightforward. That is, a simple review of various sections of the New York Penal Law may not require the assistance of a New York theft attorney or grand larceny lawyer. Although the statutes may seem clear, what becomes confusing are the various legal decisions that may impact an arrest, indictment or conviction for crimes including New York Penal Law section 155.30 or 155.35. It is theses decisions that may make a non-defense a viable one or a seemingly easy defense one that will not assist you in your case.

In a relatively unique fact pattern, what if you are alleged to have stolen from a bank by depositing bogus checks directly with a teller or empty envelopes into an ATM machine? As a result of your fraud, the bank credits your account the amount of the deposit you claim you made. Therefore, until the bank recognizes that you falsely inflated your account with these valueless deposits, you have access to money that is not truly in the account or even in existance. Knowing you have access to fraudulently obtained funds, you withdraw money from the account. In such a situation, the issue is fairly simple. Is the value of the theft, and as a result the degree or level of your crime, determined by the amount you fraudulently deposited without actual financial backing or the amount withdrawn by you in excess of your legitimate balance? Fortunately, People v. Esquilin, 37 A.D.3d 197 (1st Dept. 2007) addresses just that.

In Esquilin, the defendant was accused of making in excess $3000 worth of deposits in an ATM machine. However, instead of depositing cash or valid checks, the defendant deposited empty envelopes. When doing so, the defendant made a record that the deposits actually contained this money. As a result, he had an illegitimately inflated balance until the bank finally caught on to the scheme. Before they realized what had happened the defendant successfully withdrew nearly $2,000. The question before the court was whether or not a conviction for Grand Larceny in the Third Degree (NY PL 155.35) was proper or Grand Larceny in the Fourth Degree (NY PL 155.30). In the event the theft exceeded $3,000, then the former offense would be a proper charge while the latter offense would be correct if the theft was greater than $1,000, but $3,000 or less.

While finding the defendant certainly intended to steal money from the bank, the appellate court found that evidence for a conviction for Third Degree Grand Larceny was insufficient. Although in excess of $3,000 of was alleged to have been deposited by the defendant when he deposited blank envelopes, he was successful in only withdrawing just under $2,000. Therefore his completed offense or the actual taking was this lesser amount. Unfortunately, the defendant's attorney did not preserve this argument for appeal, but should he have done so the degree of the crime would have been the significantly less Fourth Degree offense.

Keep in mind that the above scenario is a unique one. This analysis could, and likely would, change in the event that the money improperly deposited into the account was stolen funds or from forged checks. Not only would the accused be liable for withdrawing the ill-gotten gains, he or she would also be charged with stealing from the actual account holder where the check was taken from and / or Criminal Possession of a Forged Instrument for possessing a fake check.

For extensive information on theft crimes and Grand Larceny in New York, please click through the link to the Crotty Saland PC Grand Larceny Information Page. There you will find links to the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) and a detailed analysis of the varying degrees and theories of Grand Larceny.

The New York Grand Larceny lawyers at Crotty Saland PC represent those accused of or investigated for Grand Larceny and related fraud crimes in the New York City area. Before starting the criminal defense practice, both founding attorneys served as prosecutors in the Manhattan District Attorney's Office.

The most commonly prosecuted Grand Larceny cases in New York revolve around the value of the property in question. Whether there is a theft by embezzlement, trick or extortion, the degree of the Grand Larceny often relates directly to that value. For example, should you steal $2,000 from an employer by embezzlement or trick someone into giving you $2,000 in exchange for a item with no value, your arrest charge would likely be Grand Larceny in the Fourth Degree pursuant to New York Penal Law 155.30(1) because the value of the theft exceeded $1,000, but was less than or equal to $3,000. In such a case,

In 2010, however, the New York State legislature added a new charge that New York criminal defense attorneys must fight against. Now, should you steal that same $2,000 your crime may be raised a degree to the more serious Grand Larceny in the Third Degree. According to New York Penal Law 155.35(2), one is guilty of Grand Larceny in the Third Degree if the property one steals is an automated teller machine (ATM) or the contents of an automated teller machine. Examining this statute further, regardless of the value of the physical ATM, if you hijack that ATM from a convenient store, bodega, or any other establishment, your crime automatically is a "D" felony even if the value of that ATM is $750 or $2,000 dollars. Furthermore, the contents of the ATM are also subject to this statute. Therefore, it appears that if you withdraw funds from an ATM, let's say $750 for the purpose of this hypothetical, and you are stealing these funds from another person, you would also be guilty of Grand Larceny in the Third Degree based on this statute. Compounding matters, if you perpetrate this crime a second time in a five year period or this is merely your second Grand Larceny, you would also face the elevated offense New York Penal Law 155.43, Aggravated Grand Larceny of an Automated Teller Machine. A "C" felony, Aggravated Grand Larceny is punishable by up to fifteen years in state prison while the "D" felony is punishable by up to seven years in state prison .

It is important to note that this crime does not supersede or prevent law enforcement in New York to prosecute you with additional offenses. That is, if you use another person's debit card to steal $750 from an ATM you would likely face the felony crimes of Criminal Possession of Stolen Property in the Fourth Degree for possessing a stolen debit card and Identity Theft in the Second Degree for using the personal identifying information of that person (their debit card number) to steal their $750. Depending on your conduct, there could also be additional offenses charged in your arrest.

The criminal laws and statutes relating to Grand Larceny, Identity Theft and other fraud related crimes is constantly evolving in New York. What is construed as a minor or non-criminal offense today may become a serious felony in the future. Whether you are a criminal lawyer in New York or not, staying apprised of these statutes is imperative.

For a wealth of information on the degrees and types of felony theft crimes and Grand Larceny in New York, please follow the highlighted link to the Grand Larceny information page. On that page you will not only find analysis of statutes, but numerous blog entries from the New York Criminal Lawyer Blog which further review legal decisions and cases pending in the news.

Founded by two former Manhattan prosecutors, Crotty Saland PC is a New York City and metropolitan criminal defense practice representing those accused of Grand Larceny and other white collar crimes throughout the region.