I previously discussed the various theories that top White Collar NY criminal defense attorneys may confront when representing their clients in a Grand Larceny or Petit Larceny Case. As previously noted, the theories could include Larceny by trespassory taking, trick or even extortion. In this entry, I will address a different theory of Larceny. That theory is Larceny by false promise.
According to NY Penal Law 155.05(2)(d), a “person obtains property by false promise when, pursuant to a scheme to defraud, he obtains property of another by means of a representation, express or implied, that he or a third person will in the future engage in particular conduct, and when he does not intend to engage in such conduct or, as the case may be, does not believe that the third person intends to engage in such conduct.”
So, in other words…if you are involved in a Scheme to Defraud and you make a representation that future conduct will occur, but you have no intent that it will, you may be guilty of Grand or Petit Larceny by false promise. Cases based on this theory, however, are not so clear and often need a trained legal eye to review.
What is of great importance and central to these matters is that the facts and circumstances of the case must be “wholly” consistent with guilty intent and inconsistent with innocent intent to a “moral certainty.” This “moral certainty” standard is key to any prosecution of Larceny by false promise and one which the experienced NY criminal defense attorney’s at Saland Law PC are ready to grapple with. It is imperative for both the defense and the prosecution to recognize that it is not legally sufficient to establish the defendant’s desire that the particular promise would not be performed by the fact alone that the particular promise was not performed (read it slowly…make sense?!?!?).
Before continuing and analyzing this standard, it may be a good idea to re-read my entry regarding Scheme to Defraud (that crime is applicable to the theory of Larceny by false promise) so you can understand this offense in the proper context. Having done that, an examination of the Court of Appeals decision in People v. Ryan, 41 N.Y.2d 634 (1977) will further shed light on this issue.
In Ryan, the defendant was a partner is a bond brokerage business and he maintained an approved line of credit with a bank. In his business capacity, the defendant purchased retainage bonds that were to be held in custodial bank accounts for contractors that were doing work. In short, the defendant did not fulfill his promises and make his payments. In dismissing the charges against the defendant, the Court of Appeals found that “it cannot be said with any moral or reliable degree of certainty that…the defendant did not intend to complete the transaction.”
The Court of Appeals further noted that the “statute has thus created a higher burden of proof of intent because of the close relationship larceny by false promise holds with mere civil wrongs. The standard in the statute equates to the rule used in circumstantial evidence cases (see People v Borrero, 26 NY2d 430, 434- 435; People v Bearden, 290 NY 478, 480). We must insist, under this standard, that any inference of intent to be drawn from the facts be reliable (see People v Wachowicz, 22 NY2d 369, 372). The inference of intent must be logically compelling and must exclude any ‘logical gaps–that is, subjective inferential links based on probabilities of low grade or insufficient degree–which, if undetected, elevate coincidence and, therefore, suspicion into permissible inference’ (People v Cleague, 22 NY2d 363, 367). In the context of the crime of larceny by false promise, the inference of intent must overcome to a moral certainty any implication of mere civil wrong.”
This entry may have confused more readers than it educated. Considering the intricacies of this statute and the related legal decisions, it is understandable. However, in the event you or a loved one is accused of or being investigated by law enforcement for White Collar crimes such as Grand Larceny or Scheme to Defraud, you cannot afford to be set back by any level of confusion or uncertainty. That is why retaining experienced criminal defense counsel, such as the former Manhattan prosecutors at Saland Law PC may mean the difference between the destruction of your integrity and liberty or the preservation of your rights and freedom.