Legal Impossibility: Can a Conviction Stand for Possessing Stolen Property if the Property is Part of a Police Sting

In New York State, if you knowingly possess property and that property is held by you for your benefit or to impede its recovery by the rightful owner, then the crime of Criminal Possession of Stolen Property has been perpetrated. This is true whether the possession of the property is in the context of taking a wallet off of a bar in White Plains, taking cash from a table at a restaurant in Brooklyn or shoplifting from a department store anywhere in New York City. Having said that, there is an interesting and critically important fact that can downgrade your offense. In other words, if you are charged with the “A” misdemeanor of Criminal Possession of Stolen Property in the Fifth Degree (New York Penal Law 165.40), the crime may be knocked down to a lesser “B” misdemeanor of Attempted Criminal Possession of Stolen Property (New York Penal Law 110/165.40). The legal concept that forms the basis of this downgrade is known as legal impossibility. Often times this legal concept occurs in the area of sting operations set up by the police, but is not exclusive to sting operations.

The Court of Appeals, the highest level court in the State of New York, has grappled with the issue of legal impossibility in the past and has done so specifically in the context of Criminal Possession of Stolen Property. In People v. Zaborski, 59 N.Y.2d 863 (1983), the Court upheld or re-affirmed a lower appellate court’s decision that where police set up a sting involving the fencing of stolen property by supplying the property that was previously stolen, the completed crime of Criminal Possession of Stolen Property was not perpetrated and could not be perpetrated. The Court stated that “[a]t common law, goods once stolen but recovered and used by police for a subsequent sale were held to be no longer stolen, and a person who then received the goods could not be prosecuted for either receiving or attempting to receive stolen goods.” Simply put, you cannot steal property that is not in fact stolen even though at one point it may have been. The Court further elaborated on the issue of legal impossibility and stated that “[a]lthough the goods sold to defendant were burglary proceeds, upon their recovery by police they lost their taint which thereby made it legally impossible for defendant to possess stolen property. It is irrelevant that, at the time of the sale to defendant, the true owners of the property had not been located; from the time of recovery, the police were, in effect, agents of the rightful owners holding the property on their behalf.”

Obviously, a careful reading of this case is important. Equally important, the Court noted, as should you, that New York Penal Law 110.10 sets forth an important rule regarding legal and factual impossibility. It is no defense to any attempted crime charge, despite the old common law, that it was or is factually or legally impossible to commit that particular crime. Again, although the property in this case was no longer stolen and, thus, the accused could not possesses stolen property, because the requisite intent and physical actions existed, New York Penal Law 110.10 clearly states that the accused can still be liable for an attempt to commit the crime of Criminal Possession of Stolen Property.

Is it impossible in each and every circumstance for a sting operation to result in a completed theft crime? Is that assertion too broad? What if, for example, the property in question is never actually recovered by the police, but involved in a theft? There, the taint does not appear to have dissipated. Whether this legal theory is applicable in your case is something that should be examined by your own legal counsel. However, the relevancy and importance of this theory cannot be understated as it can make the difference, in certain circumstances, between an “E” felony and a lower “A” misdemeanor.

Crotty Saland PC is a New York criminal defense law firm representing those charged with and investigated for theft and larceny related crimes in New York City. Founded by two former Manhattan Assistant District Attorneys, our criminal lawyers represent the accused throughout the New York City region.

For additional materials on Grand Larceny and Stolen Property crimes, please review either the New York Criminal Lawyer Blog or the Crotty Saland PC website. The former also contains extensive information on criminal statues as well as analysis of legal decisions and cases in the news.

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