Robbery & Theft Bail Bonds  

Robbery & Theft: Consequences & Defenses
By: Tony Partipilo, Attorney at Law and Natalie Banach

Overview:

Robbery is the act of depriving someone of their personal property while in their presence through the use of force or fear. The property can either be taken from the person or from their immediate surroundings. If a deadly weapon such as a gun is used or the victim suffers physical harm, the act can be classified as "armed" or "aggravated" and the severity of the punishment can be increased. The actual elements of theft include trespassing, taking, carrying away, the fact that it is someone else's property, the intent to steal, the presence of the person who owns the property, and intimidation. Unless all seven of these elements are present, theft as defined by the law, does not occur.

Consequences:

The various punishments ascribed to theft can depend on the type and the value of the stolen property, but can include:

• imprisonment
• probation
• restitution (a penalty imposed which restores the worth of the property to the owner)
• fines
• court approved counseling
• other

Chances that any of the above consequences will occur:

The likelihood that any of these consequences will be applied and the degree to which they are proscribed generally depends on what was stolen and its market value. Known either as petty theft or grand theft, the difference can mean a greater or lesser punishment. Examples of grand theft include, but are not limited to, stolen property that exceeds $400 in value or whenever a firearm is taken. The theft of items which have less monetary value, usually under $400, can be classified as petty theft. Grand theft is generally punishable by imprisonment in state prison. Petty theft is generally punishable by imprisonment in county jail.

Such punishments are the general rule and can increase or decrease based on additional factors. For example, a person's past criminal record can increase the likelihood that a more severe punishment will be proscribed. Additional factors can include, but are not limited to, the attitude of the community and the court toward the type of crime, the degree of media attention to the case, and other mitigating or aggravating circumstances.

Possible defenses:

There are various defenses that can potentially be used in cases of theft and they include factual innocence, a lack of evidence linking the accused to the crime, or the issue of true owner, in which the accused argues he is the lawful owner of the property. The issue of true owner largely relies on whether the alleged theft occurred under felonious circumstances. That is, if the defendant was under the good faith belief that he was the actual owner of the property, then it is possible for him to be not guilty of robbery. In addition, there are many other defenses that can be used in particularly unique cases.

Helping your case:

There are a number of steps a person can take as soon as they are charged with a crime of theft or robbery. The first is to stringently exercise the right to remain silent. Keeping silent enables the accused to learn exactly what is going on, calmly analyze the facts and make sure they do not weaken their case in any way. In all criminal cases, retaining qualified counsel as soon as possible should be a priority. No matter how minor the charge, any person charged with a criminal offense can benefit from a competent criminal defense attorney. Even if the lawyer consulted does not ultimately argue the case on that person's behalf, a consultation can help the accused figure out the nature of the charges filed, what options they have and what could happen in the event of a conviction. Additional steps to help your case include gathering documents which point to your good character and keeping a list of significant events and potential witnesses. It is also important to note that under no circumstances should a person investigate their own case.

Property Crimes: Even Petty Crimes Can Lead to a Lifetime of Regret

By: Tony Partipilo, Attorney at Law and Helen Kim

Petty theft

"Theft" is committed by stealing anything of value. The value of the property relates to the classification of the crime and the nature and extent of the penalty that will be imposed upon conviction. People v. Kelly, 214 N.E.2d 290 (1st Dist. 1965). There are two categories of theft, which is also called larceny: grand larceny and petit, or petty larceny. States are entitled to set their own guidelines to distinguish between grand and petty larceny. In most jurisdictions, grand larceny is considered a felony while petty larceny is categorized as a misdemeanor. However, under most theft statutes, the value of the property determines the punishment. The Model Penal Code at 223(2) comments:

(a) Theft constitutes a felony of the third degree if the amount involved exceeds $500, or if the property stolen is a firearm, automobile, airplane, motorcycle, motor boat, or other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property. (b) Theft not within the preceding paragraph constitutes a misdemeanor, except that if the property was not taken from the person or by threat, or in breach of a fiduciary obligation, and the actor proves by a preponderance of the evidence that the amount involved was less than $50, the offense constitutes a petty misdemeanor.

No matter how small the value of the property, a conviction of even the most minor larceny may leave a permanent imprint on an individuals criminal record. This record cannot only affect a person if they are convicted of another offense, but also in non-criminal, daily life situations, such as job hunting and housing.

Employment

Although an employer may not discriminate against an individual based on criminal history, statutes have allowed employers to inquire about an applicants criminal history. In Shapira v. Charles Schwab & Co., Inc., the Court found that the defendant employer was obligated by the Securities Exchange Act (SEA) to keep and maintain current records of any arrests for larceny of any person in its employ, and it was permitted by the SEA to inquire about such arrests concerning prospective employees. Therefore, the Court held that the defendant employer did not violate the New York Human Rights Laws by inquiring into an allegedly sealed arrest record of the plaintiff, who had applied for employment with the defendant. 225 F.Supp.2d 414 (S.D.N.Y. 2002). Although the plaintiff was mistakenly arrested for petty larceny and there was no indication that the plaintiffs arrest was a genuine factor in the employers decision not to hire him, Shapira confirms that employers are allowed to inquire, and in some instances, obligated to inquire, about an applicants criminal history.

Although employers may inquire into an individuals criminal past, they cannot discriminate on the basis of the applicants criminal past. In Adler v Montefiore Hosp. Assn of Western Pennsylvania, the Pennsylvania Supreme Court stated that the right to engage in common occupations as part of the liberty protected by the Fourteenth Amendment to the United States Constitution may not be interfered with, under the guise of protecting the public interest, by legislative action that is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. 311 A.2d 634 (Pa. 1973). Unless a state has a reasonable purpose, it cannot interfere with an individuals right to employment. In Nixon v Commonwealth, the Pennsylvania court commented that to forever foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of any concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation. 789 A.2d 376, 381 (Pa. 2001). However, unfavorable biases are likely to arise once employers learn of an applicants criminal record, even if the record consists of petty theft, subjecting the applicant to stricter review.

Housing

Title 24 of the Code of Federal Regulations at 960.204 requires public housing authorities to establish and adopt policies to preclude admission of applicants who may be expected to have a detrimental effect on the residents of the housing project environment. Such review includes the applicants past criminal activity.

When selecting tenants, 24 CFR 960.205(b)(3) allows housing authorities to consider "[a] history of criminal activity involving crimes of physical violence to persons or property and other criminal acts which would adversely affect the health, safety or welfare of other tenants."

Public housing policy is aimed at safeguarding other tenants from possible criminal acts against them, yet such practice creates difficulty for an individual with a criminal record, even a misdemeanor, to obtain (public) housing.

Sentencing

In federal criminal law, prior sentences, including misdemeanors where incarceration is not imposed, are counted in an individuals criminal history score. The criminal history score affects the sentencing of repeat offenders when they are convicted of a new crime. Pursuant to the United States Sentencing Guidelines 4A1.1(a) (c), sentences for misdemeanors and petty offenses are included when calculating the criminal history category for sentencing.

The United States Sentencing Guidelines 4A1.2 (c)(1) provides exceptions where misdemeanors and petty offenses are not factored in the calculation of ones criminal history: careless or reckless driving, gambling, prostitution, and trespassing are a few of the listed exceptions. Hitchhiking, juvenile status offenses and truancy, loitering, minor traffic infractions, public intoxication, and vagrancy are never included when calculating ones criminal history score. In United States v. Harris, the defendant argued that her prior shoplifting conviction should not have been factored into calculate her criminal history score because shoplifting is a petty offense that is similar to the exceptions in 4A1.2 (c)(1). 325 F.3d 865 (7th Cir. 2003). However, the Court joined the majority of jurisdictions and stated that convictions for petty theft or shoplifting are not similar to the offenses listed in 4A1.2 (c)(1) because petty larceny requires a trespass and a taking of anothers property. Hence, the Court affirmed the sentence in which defendants prior conviction of shoplifting was calculated into her criminal history score. Id.

Conclusion

A conviction for petty theft can have major repercussions than perceived at first blush. The misdemeanor is permanently recorded on an individuals criminal history and can follow the individual for the rest of his life. Not only will the conviction impact upon the individual if he is ever arrested and convicted for a subsequent crime, but it can affect the individual on a more basic level when he attempts to seek employment or housing. Employers and housing authorities cannot discriminate on the basis of ones criminal history but they are allowed to inquire and have access to those records. In a highly competitive job market, one misdemeanor conviction can mean the difference between a career and a job, between having a home and living on the streets.

Larceny in Context Distinguishing Between Larceny and Other Stealing Crimes

By: Vince Imhoff, Esq. & Dan Rhoads

Stealing is a crime so old that it can be traced back at least as far as the Eighth Commandment. The law has managed to categorize the types of stealing into a confusing taxonomy of terms: burglary, embezzlement, extortion, larceny, robbery, theft, and so on.

Burglary and robbery are distinct from theft. (See Model Penal Code 221, 222). Extortion is a means of theft by threatening harm to the propertys rightful owner. See Model Penal Code 223.4. Embezzlement is a misappropriation of funds by a person to whom they have been entrusted. See Embezzlement.

The remaining theft offenses are roughly divided into theft by stealth and theft by deceit. False pretenses is theft by deceit whereas [l]arceny by trick is theft by stealth. R. Pearce, Theft by False Promises, 101 U. Pa. L. Rev. 967, 987 (1953).

A person who shoplifts by switching pricetags from less-expensive items onto more expensive ones commits theft by false pretenses if the seller relies on the phony prices to transfer the product to the putative buyer. See, e.g., People v. Lorenzo, 135 Cal. Rptr. 337 (1976).

A person commits theft by larceny when that person: (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with the intent to steal the property, and (6) carries the property away. People v. Davis, 965 P.2d 1165, 1167 (Cal. 1998).

As the cases show, the elements of larceny can be applied in a wide array of creative ways.

Taking Possession

Girard, a former DEA agent, conspired with James Bond to smuggle marijuana into the U.S. Girard offered, for $500 a name, to find out whether or not any of the other people considered for the operation were government informants. Girards accomplice, Lambert, was a DEA agent who looked through the departments databases to get the information. Unfortunately for Mr. Girard, Bond himself became an informant and disclosed his conversations with Girard to the DEA. U.S. v. Girard, 601 F.2d 69 (2nd Cir. 1969).

Girards conviction for converting the governments property was upheld. He had taken possession of the information merely by learning it. Its owner, the DEA, was never deprived of possession of its information; but its property interest was violated once the private data were disclosed.

Personal Property

After Jayne broke up with Karl, he repeatedly called to harass her. Jayne changed her number to an unlisted one and intended that Karl would not learn it. In search of the phone number, Karl climbed through a window into her trailer. While inside, he copied the phone number, Jaynes social security number, and her insurance policy numbers.

Karls conviction for burglary, which entails unlawfully entering anothers property with the intent to commit a crime, was upheld. The crime that Karl intended to commit was the larceny (or theft) of the unlisted phone number. The court pointed out: Phone numbers have been recognized in different contexts as property, and a persons interest in keeping their unlisted number private has also been recognized. Dreiman v. State, 825 P.2d 758, 762 (Wyo. 1992).

The same reasoning with respect to social security, insurance policy, and credit card numbers underlies the concept of identity theft.

Owned or Possessed by Another

William Rose walked into a bar and ordered a 10 glass of soda water. William laid a $50 greenback onto the bar and expected to receive $49.90 in change. Instead, the bartender put down a few coppers upon the counter, and when asked for the change, he took [William] by the neck and shoved him out doors, and kept the money. Hildebrand v. New York, 56 N.Y. 394, 395 (1874).

The bartenders conviction for larceny was upheld even though he claimed that William had surrendered possession of the greenback. The court noted that the delivery of the bill was conditioned upon the return of the change. Thus, until the transaction was complete, William was legally in possession of the money.

Means of Trespass

When Kenneth Davis entered the Mervyns store, a security agent placed him under camera surveillance. Security watched as Kenneth took a shirt from its hanger and placed it inside a Mervyns bag, which he had brought with him. He then walked to a cashier at the other end of the store and asked to return the item, which he claimed that he had bought as a gift.

Appealing his conviction for theft by larceny, Davis argued that he had not trespassed because a self-service store like Mervyns impliedly consents to a customers picking up and handling an item displayed for sale. People v. Davis, 965 P.2d 1165, 1168 (Cal. 1998). Rejecting the argument, the court wrote, Because Mervyns cannot be deemed to have consented to defendants taking possession of the shirt with the intent to steal it, defendants conduct . . . constituted a trespassory taking within the meaning of the law of larceny. Id., 965 P.2d at 1176.

Intent to Steal the Property

An intent to return anothers property can be a defense to theft charges if the property retains its value and if the return is unconditional. Conditional returns constituting theft fall generally into 3 categories: (1) when the defendant intends to sell the property back to its owner, (2) when the defendant intends to claim a reward for finding the property, and (3) when . . . the defendant intends to return the property to its owner for a refund. People v. Davis, 965 P.2d 1165, 1169 (1998).

Consider a hypothetical. A Pomeranian wanders into Walters back yard. Walter knows that the dog belongs to his neighbor Wendy, who loves the dog but is scatterbrained at times. Anticipating a frantic search, Walter secludes the Pomeranian in his house until a reward is offered. These actions constitute larceny because Walter is depriving the owner of a portion of the value of the property. Commonwealth v. Mason, 105 Mass. 163, 168 (1870).

Carrying the Property Away

The asportation element, or carrying away someone elses property, is the least important aspect of larceny. Some states have done away with it altogether. Courts in other states merely interpret the requirement broadly so that it can easily be satisfied.

In People v. Alamo, 34 N.Y.2d 453 (1974), the court held that the asportation requirement was met when the defendant got into a strangers car, turned on the lights, and started the engine. The court reasoned that the purpose of the carrying-away element is to establish the actions needed to gain possession and control. Id. Similar reasoning has made the last element of larceny the easiest to prove.

Denouement

Theft is one of several species of stealing. Larceny is theft by stealth, as opposed to false pretenses. Although the offense of larceny has very specific elements, courts have found creative ways to apply those elements in order to criminalize a wide array of conduct.

The prosecutions creativity must be matched by that of the defense attorney. An effective defense can restrict the expansion of the scope of larceny and can ensure that a defendant is charged under the correct statute to avoid an unduly harsh sentence. Because theft can result from desperation or even accident, it is important that the defense attorney understand the defendants situation so that it can be related to the jury.