Stealing Money You Never Had: Determining the Degree of Grand Larceny in a Fraudulent Bank Deposit & Theft Scheme

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level of your crime, determined by the amount you fraudulently deposited without actual financial backing or the amount withdrawn by you in excess of your legitimate balance?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.

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