Theft by False Promise

New York Penal Law 155.05 establishes the various ways in which a larceny can be perpetrated in the State of New York. These types or manners of theft and larceny range from Extortion and Acquiring Lost Property to theft and larceny by Embezzlement and Trick. While there are numerous other means in which either a Petit Larceny or Grand Larceny is committed in New York, one unique manner is by False Promises. Although a crime of larceny or theft by False Promise is not so rare that an experienced New York criminal lawyer would be unfamiliar with the elements of these Grand Larceny crimes, it is an offense that needs the legal analysis of an attorney with more than merely a base level of familiarity with the criminal law and white collar crimes.

• Petit Larceny (NY PL 155.25)
• Grand Larceny in the Fourth Degree (NY PL 155.30)
• Grand Larceny in the Third Degree (NY PL 155.35)
• Grand Larceny in the Second Degree (NY PL 155.40)
• Grand Larceny in the First Degree (NY PL 155.42)

According to NY PL 155.05 a person is guilty of obtaining property by False Promise if he or she is also engaged in a Scheme to Defraud. If during this scheme, the accused obtains another person’s property based on a representation or representations that he or she will engage in a particular action in the future, but, in fact, he or she has no intention in doing so, then a False Promise larceny has occurred.

Although the definition above seems fairly straight forward, it could not be further from the truth. After all, you could have had the greatest of intentions and sincerest plans to engage in future conduct in return for money, but for some reason you were unable to perform. In such a circumstance, is your conduct criminal?

It is critical for you and your criminal defense attorney to understand that in a prosecution for a larceny or theft by False Promise, the mere fact that the promise was not kept to perform a particular action in the future is not sufficient to establish that at the time the promise was made there was no intent to comply. In other words, the end result of failing to perform does not, by itself, establish the criminal intent from the onset of the agreement. Instead, a “wholly inconsistent” and “moral certainty” standard is implemented by the statute and the courts. According to the statute:

“[A finding of a larceny by False Promise] may be based only upon evidence establishing that the facts and circumstances of the case are wholly consistent with guilty intent or belief and wholly inconsistent with innocent intent or belief, and excluding to a moral certainty every hypothesis except that of the defendant`s intention or belief that the promise would not be performed[.]”

Clearly, between the “wholly inconsistent” and “moral certainty” standard, there may be ammunition in your criminal defense arsenal to combat an allegation of this nature. It is not merely the language of the statute, however, that can potentially fortify your defense against a Grand Larceny or Petit Larceny based on a False Promise theory of theft. If necessary, your criminal lawyer will review some of the cases and legal decisions that define this offense. For example, in People v. Carey, a defendant had solicited money from various individuals with the promise to start a business. Instead of doing so, Carey not only failed to file or draft paperwork to start a business, but he used the funds as his own piggy bank. Obviously, such a situation as described above differs greatly from a case where an individual fails to comply with a promise because of financial issues. While a civil suit may remedy this failure on the part of the accused, a criminal action and Grand Larceny arrest or indictment should not be the proper legal recourse.

Should you be the target of a larceny by False Promise investigation or a subject of a theft by False Promise arrest, waiting to see how the allegations “pan out” is certainly not a defense to a potential felony indictment or conviction. Can the prosecution establish both the “wholly inconsistent” and “moral certainty” standards? Do you possess any evidence that can corroborate your defense? While each case is unique, consulting with an experienced New York criminal lawyer, such as the former Manhattan prosecutors who founded Saland Law, may help you not only identify weaknesses in law enforcement’s case, but a powerful defense to the allegations as well.

• Theft Convictions: Collateral Consequences
• Theft Crimes Sentencing Guidelines
• Defenses to Theft & Larceny

To further educate yourself on the crimes of larceny and theft in New York, please review this website as well as our main website at CrottySaland.Com. Further information is available on both of our blogs at NewYorkCriminalLawyerBlog.Com and NewYorkTheftAndLarcenyLawyersBlog.Com.

Contact the New York Criminal Defense Attorneys & Theft Lawyers Online or at 212.312.7129 Now.