Have you ever wondered what you would do if you found a diamond ring on the street?  If a gift basket full of Cristal was accidentally delivered to your front door? If a cashier mistakenly handed you a hundred dollar bill when the correct change was ten?

It might be tempting to take the moment as a blessing, particularly if you’d been facing financial hardship and struggling to catch a break.  But would you be stealing?

This article attempts to answer that question.

What is theft under New York law?

While the average person is well aware that sneaking cash from someone’s wallet or pocketing jewelry from a department store is illegal, the question of what constitutes theft is not always so cut and dry.

In New York, theft is termed “larceny” and it’s broken into three elements:

(1) The wrongful taking, obtaining, or withholding

(2) Of someone else’s property

(3) With the intent to either deprive the owner, OR to take the property for himself or someone else:

Depending on the property stolen and the manner in which it was taken, the offense may be deemed “grand larceny”, which you can read about in detail here.   

Our article on New York’s Grand Larceny law will also address the second two elements of a larceny offense in detail.

This article is specifically focused on the first element.  That is, what constitutes a wrongful taking, obtaining, or withholding?  

New York Penal Law § 55 details the many scenarios in which the first element of a larceny offense is met, and consulting with a criminal attorney is your best course of action if you have questions about your own conduct.

But for now, let’s address some examples you may be unclear about with respect to larceny.  That is, the times when the line isn’t so clear and when the moral sensibility is arguable.

Acquiring lost property:  

So what about our earlier example of stumbling across a diamond ring on the street?  

Under New York law, the acquiring of lost property constitutes a wrongful taking when you take as your own property you know was lost by another, AND fail to take “reasonable measures” to return it to the owner.  

In other words, you have to do your due diligence if you want to keep the ring.  Which means running the risk of losing it.

Most people who lose a valuable item will retrace their steps.  So look for nearby stores, schools, hospitals, restaurants, etc..  It’s fair enough if you don’t want to leave it with a shopkeeper or employee to potentially steal, but you can certainly leave your name and number so that if the person who lost it goes looking for it, the establishment can put them in touch with you.  

If you want to make sure you cover all your bases and leave no room for error, drop the ring off at your local police department.

If, fter all of your efforts to identify the rightful owner, no one claims the ring, you can safely adopt it as your own.

Mistaken delivery:  

Imagine you answer the door to find a delivery person holding a gift basket.  They place the basket in your hands and tell you it was sent courtesy of Mr. Smith.  You don’t know anyone named Mr. Smith. As the delivery person drives away you look at the card and see it’s addressed to Deborah.  You don’t know anyone named Deborah. You notice the basket contains several bottles of expensive champagne, among other pricey items no one in your circle would ever conceivably send as a gift.

Obviously, it’s a mistaken delivery.  But is it a crime to keep it?

Under New York law, probably.

Similar to acquiring lost property, you must take reasonable measures to return property mistakenly delivered to you.  If, after taking such reasonable steps, no owner is identified, you are free to enjoy the gift that landed in your lap by chance.  

Mistaken delivery also arises where the cashier gives the wrong change.  If this occurs, you’ll want to cover your bases by returning to the store.  If that’s not possible, perhaps because you stopped there on a road trip and didn’t realize the ten dollar bill you were supposed to receive was actually a hundred until you were hours away, you could try calling the store and offering to either mail a check or drop the extra cash off at a nearby chain.  Just make sure to keep records of your efforts.

Finally, mistaken delivery can occur when you purchase an item from buyer who is clearly mistaken as to its monetary worth.  A classic example would be where a person sells you a piece of art he believes to be counterfeit worth pennies, but you happen to know it’s an original worth millions.

No one would blame you for being tempted to run off, but correcting the seller’s misperception and giving him opportunity to change his mind is the legal (and moral) thing to do.

Issuing a bad check:

What about when you pay for an good or service by check, without having the necessary funds in your account?

In this case, it depends.  For issuing a bad check to constitute a wrongful taking, you have to do so knowingly or intentionally.

So if you write the check knowing there’s nothing in your account, or if you do so intending the check to bounce long after the recipient can track you down, you’re satisfying the “wrongful taking” element of a larceny offense.  

However where you write the check believing the funds are in your account, or you overdraw your account believing the check has already been cashed, your responsibility to your debtor is not discharged, but your liability for larceny is.

False Promise:  

A false promise constitutes a wrongful taking for larceny purposes when the perpetrator deliberately promises to do something he has no intent to do, or promises that someone else will do something he does not believe that person will do,  in exchange for the owner’s property.

Here’s how this works.  Imagine you arrange to purchase an expensive couch on Craigslist, and as you arrive to pick it up you realize you left your wallet at home.  You’ve rented a Uhaul specifically for the job and have to return it in one hour. The seller wants the couch out of their living room, and you seem trustworthy, so he agrees to give you the couch in exchange for your promise to drop off the cash later that evening.

You arrive home and realize your wallet isn’t there.  You don’t have any other money, and no financial means of traveling to the seller.  Have you made a false promise?

No, provided you actually intended to deliver the cash.  You are still liable to the seller for the price of the couch, but you are not guilty of larceny under these facts.  

Where a false promise is concerned, the non-performance of the promise is not alone evidence that the promise was false.  There must be evidence establishing that “the facts and circumstances of guilty intent or belief, or wholly inconsistent with innocent intent or belief.”  

Essentially, there must be no other reasonable explanation for your failure to perform your promise, other than guilty intent.

So if you deliberately misled the seller, and had no intention of ever dropping off the cash, this would be considered larceny under New York law.

Evidence that you were making a cash withdrawal from an account containing thousands of dollars, while ignoring phone calls from the seller or emailing your excuse, would certainly be used against you in a case like this.

In summary, it pays to do the right thing.

You may wonder what your odds of getting caught committing any of these crimes would be, but depending on the nature and value of the relevant property, the consequences could be steep.  

Remember that legal fees, time spent behind bars, and lost employment opportunities cost money.  Likey far more than the value of the property you may be tempted to keep.

If you are concerned about your own conduct, or if you have been charged in relation with any of the scenarios detailed above, an experienced criminal defense attorney can help you formulate a strong defense strategy or even get your case dismissed.