Property Crimes

Question 1

What are the elements of common law larceny?

Answer 1

Elements:

Trespassory - wrongful or unlawful

Taking and carrying away - the property must be moved/asportation requirement

Personal property of another, with the - ask who had lawful custody at the time of the taking?

If D has lawful custody of the property, he cannot be guilty of larceny for taking it (even if D doesn’t own it).

Conversely, D can be guilty of larceny for taking his own property, if someone else had lawful custody of the property when D took it.

Intent to permanently retain the property - If the defendant intends to give the property back, there is no larceny (must have the intent to steal.

Question 2

What is the erroneous takings rule?

Answer 2

This is a taking under a claim of right. It is never larceny, even if the defendant erroneously believes the property is his.

Question 3

What is the principle of “continuing” trespass?

Answer 3

If a defendant wrongfully takes property, but without the intent to steal, he will not be guilty of larceny. But, if the defendant later forms the intent to steal, the initial trespassory taking is considered to have “continued” and he will be guilty of larceny.

NOTE: This doctrine creates an exception to the “concurrence” principle.

Question 4

What are the elements of embezzlement? What is the difference between possession and custody for the purposes of embezzlement?

Answer 4

Definition: Conversion of the personal property of another by a person already in lawful possession of that property, with the intent to defraud.

Mental State: specific intent to defraud.

NOTE: If the defendant intends to give the exact property back in the exact form, he will not have the intent to defraud.

Posession v. custody: Posession involves more than mere custody. It requires the authority to exercise some discretion over the property.

Question 5

What is the key difference between larceny and embezzlement?

Answer 5

To constitute embezzlement, a defendant must have lawful possession of the property that he misappropriates.

Question 6

What are the elements of false pretenses?

Answer 6

**Definition: ** Obtaining title to the personal property of another by an intentional false statement, with the intent to defraud.

“False Statement”: Must be of a present or past event, not a future promise.

Question 7

What is the key difference between false pretences and larceny by trick?

Answer 7

In larceny (or larceny by trick), the defendant gets only custody of the property; in false pretences, the defendant gets title, meaning ownership.

Question 8

What are the elements of common law robbery?

Answer 8

Elements:

a larceny

from someone else’s person or presence

by force or threat of immediate injury.

Mental State: the specific intent to steal.

**“Presence”: **Some location reasonably close to the victim, e.g. rooms in a house other than the room in which the victim is located.

“Force”: Any amount of force sufficient to overcome resistance.

Threats: Need *immediate *injury, not future threats.

Question 9

What are the elements of forgery?

Answer 9

Elements:

making or altering a writing with apparent legal significance

so that it is false

**Mental State: **the specific intent to defraud

Question 10

What are the elements of larceny in NY?

Answer 10

**Definition: **Larceny covers any crime that would be larceny, embezzlement, false pretenses, or larceny by trick at common law.

Degrees of Larceny:

First Degree: More than $1,000,000

Second Degree: More than $50,000

Third Degree: More than $3,000 (memorize this one!)

Fourth degree: More than $1,000

Petit Larceny: lesser amounts

Question 11

What are the elements of robbery in NY?

Answer 11

Third Degree: forceable stealing

Force may be established by the threatened use of immediate physical force upon another.

Second Degree: forceable stealing, plus one of the following -

the defendant is aided by another who is actually present; OR

the defendant or his accomplice injured the victim; OR

a car is stolen

First Degree: forceable stealing, plus one of the following -

the victim is seriously injured; OR

the defendant uses or displays what is, or appears to be, a firearm.

NOTE: there is an affirmative defense - if the defendant can proove that the gun was unloaded, the crime is reduced to second degree robbery.

Question 12

What are the elements of common law burglary?

Answer 12

Definition: breaking and entering the dwelling of another at night with the intent to commit a felony inside.

Breaking: creating or enlarging an opening by at least minimal force.

“Constructive” Breaking: entry gained through fraud, threats, or intimidation.

Entry: Some part of the defendant’s body must enter the building.

Dwelling: A structure where someone regularly sleeps

Of Another: can’t burglarize your own house.

Mental State: specific intent to commit a felony - steal, rob, rape, assault, kill, etc.

Modern Statutory Changes: eliminated technical requirements like breaking, dwelling, or night elements.

Question 13

What are the elements of burglary in NY?

Answer 13

Third Degree:

Entering or remaining

in a building

unlawfully

with the intent to comit a crime inside (any crime)

**Second Degree: **third degree burglary, plus one of the following:

The building is a dwelling, OR

A non-participant is injured, OR

The defendant carries a weapon.

First Degree: defendant knows that he is burglarizing a dwelling, plus -

A non-participant is injured OR

The defendant carries a weapon.

Question 14

What are the elements of common law arson?

Answer 14

Definition: the malicious burning of a building.

State of Mind: malice

Burning: requires material wasting (“scorching” is not enough, but “charring” is) AND it must be the building itself that burns.

**Statutory Developments: **Most states now extend arson to all buildings. Elminated the element that defendant could not commit arson on his own property.

Question 15

What are the elements of arson in NY?

Answer 15

Fourth Degree: reckless burning of a buildng.

Third Degree: intentional burning of a building

Second Degree: third degree arson, when the defendant knows or should have known that someone was inside the building.

First Degree: second degree arson, plus an explosive or incendiary device.

Question 16

What is possession of contraband?

Answer 16

**Required Act: ** when a statute criminalizes the posession of contraband, “possession” means control for a period of time long enough to have an opportunity to terminate possession.

“Constructive Possession”: The contraband need not be in the defendant’s actual possession, so long as it is close enough for him to exercise dominion and control over it.

Mental State: knowledge (of the possession and of the character the item possessed).

Question 17

What are the requirements of a criminal possession of a firearm or weapon?

Answer 17

Criminal Possession of a Firearm: knowingly possessing any firearm.

Criminal Possession of a Weapon: knowingly possessing a loaded firearm either:

outside one’s home or place of business; OR

with the intent to use it unlawfully against another.

Question 18

What are the elements of receipt of stolen property? What is the New York distinction on the crime?

Answer 18

Elements:

Receiving possession and control of

stolen personal property

Mental State:

knowledge that the property has been obtained criminally by another party; AND

with the intent to permenantly deprive the owner of his interest in the property.

NY Distinction: The property must really be stolen at the time the defendant receives it. Property that is recovered by the police and is being used in an undercover sting operation is not considered “stolen.”