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What will Happen to Me When I am Charged with Petit Larceny in NYC?

By: Don Murray, Criminal Defense Lawyer with Shalley and Murray

One of the primary concerns that people usually express when they are accused of petit larceny is, "What will become of me?" which is a sort of roundabout way of asking, "Am I going to jail?".

Of course every case is different and each person is confronted by an individual set of facts and a unique history of their own.  The typical lawyer response to this sort of question is to answer using the possibility of the absolute maximum possible sentence allowed by law.  In the case of petit larceny, the absolute maximum sentence allowed by law is one year in prison (Rikers Island for those in New York City).

In the real world, however, instead of the world of theoretical maximums, you are about as likely to get one year in jail for a petit larceny (if you have no prior criminal history) as the Earth is likely to be struck by a comet today and blasted into a billion little pieces.  In fact, I would be more worried about that comet than I would be about getting a year in jail for a first arrest petit larceny.

In other words, going to jail for one year is not something worth losing a whole lot of sleep over if you have no prior criminal history and you are charged with petit larceny in New York City.

And before we go any further in this article, let me remind you that as a criminal defense lawyer, I have not forgotten, and YOU should not forget, that one possible outcome of a petit larceny charge is that you choose to go to trial because you are not guilty and your criminal defense lawyer does such a fantastic job for you that you are found NOT GUILTY and leave the courthouse in triumph.  This article, however, is meant to focus on the possible outcomes for people who might be looking to settle the matter rather than pursue it to the point of a trial.  Statistics suggest that most people will be looking to settle a matter like a petit larceny charge if possible.  But never forget that your criminal defense lawyer is there to defend you if trial is where you need to go.

 

Real World Settlements of Petit Larceny Charges

 

Ok.  In the real world where you are not talking to a lawyer trying to frighten you with stories of being dragged off in chains for one year at Rikers Island, what sort of settlements are possible in a petit larceny charge in New York City.  For the time being, let's assume we are talking about someone who has never been arrested for petit larceny, or anything else for that matter, before.

One more thing.  They say that with respect to property values the three most important factors are location, location, and location.  Those same three factors are important when you are talking about how petit larceny cases are likely to be resolved.  Although all of the possible real-world settlements discussed below are possible, there will be variations in the frequency of their availability depending on the County invovled.  Sometimes, two different courthouse within the same county might approach settlements of petit larceny slightly differently.  Midtown Community Court in Manhattan will sometimes treat settlements of petit larceny cases slightly differently from the Central Criminal Court at 100 Centre Street.  The variations are not often gigantic, but there will be variations.  Nassau County in general will approach settlements of petit larceny cases more aggressively than in New York City, but in the end the difference between available settlements is not really so severe (for first arrest situations anyway).

 

Disorderly Conduct

 

One of the great safety valves of the criminal justice system is an offense called "Disorderly Conduct".  Disorderly conduct, as its name suggests, is not a particularly serious charge by way of comparison to most other offenses in New York State.  In fact, disorderly conduct is not even considered a crime.  You can plead guilty to disorderly conduct, leave the courtroom, and swear on a stack of Bibles that you have no criminal convictions...and you would be telling the truth.  Disorderly conduct is often compared to a traffic ticket, although in at least one respect it is far better than a traffic ticket.  A traffic ticket can put points on your license, while disorderly conduct does not.

I have suggested that disorderly conduct is a great "safety valve" for our criminal justice system because it is a standard negotiation tool for criminal cases in which the charges are less serious than others and the accused has little or no criminal history.  In such cases, it is frequently possible for a criminal defense lawyer to negotiate a settlement with the Government in which the Government agrees to dismiss criminal charges against the accused person and replace them with disorderly conduct instead.  The accused person  then pleads guilty to this added charge of disorderly conduct instead of having to plead guilty to a crime.  If the judge can be convinced by the criminal defense lawyer to go along with the deal, the case can be settled in this way.

In terms of the sentence or punishment for the disorderly conduct, that can be negotiated as well and will frequently take on one or more of the following punishments: (1) Community service; (2) A fine of up to $250; or (3) A one day class where the perils of shoplifting are discussed.

 

Adjournment in Contemplation of Dismissal

 

The Adjournment in Contemplation of Dismissal (ACD or ACOD if you are in Nassau County) is something like the Holy Grail for most people accused of an offense like petit larceny in New York.  The ACD is so sought after because the endgame of an ACD is that the whole case is dismissed and sealed.  That's right.  It is possible to negotiate a deal in which the Government agrees ultimately to forget about the case.  It's sort of like getting a car dealer to agree to sell you a car for nothing.  But not quite exactly.

The idea behind an ACD is to give an accused person the benefit of the doubt.  Even if the Government and the Court suspect that the accused person is 100% guilty, the ACD allows them to give the accused the benefit of the doubt and have the case dismissed and sealed.

Those who are charged with petit larceny and have no criminal history will generally be considered eligible for an ACD.  Simply being eligible for an ACD, however, is not an absolute guarantee that the Court and the Government will authorize an ACD as a settlement of the case.  Each case must be individually evaluated and it is up to the criminal defense lawyer to convince both the Government and the Court that an ACD would be appropriate in any given case.

Some of the factors that are considered by the Government and the Court include the age of the accused, the value of the property allegedy stolen, and the background of the accused.  It is the job of the criminal defense lawyer to highlight the positive factors for the accused to both the Government and the Court.  If the value of the property is particularly high, for example, the Government may refuse to offer an ACD, but may yet be willing to offer a plea to disorderly conduct to settle the matter.

Sometimes, the Court and the Government will be willing to offer an ACD on a petit larceny case, but they will want a promise of community service in exchange.  Further, they may want a commitment to participate in a one day class about the perils of shoplifting.  A fine is illegal as a sentence on an ACD because an ACD is not considered a plea of guilty to anything at all.  You can't be fined if you don't plead guilty to something.  Community service or the promise to take a class, however, have been determined not to be in the nature of a punishment and therefore ACD's can be made conditioned on such things.

One of the nice things about an ACD is that, unlike the disorderly conduct type settlement, the accused need not admit guilt to anything at all.  The matter is simply adjourned for a date six months down the road.  On that date six months away, the case will be automatically dismissed and sealed.

On a plea to disorderly conduct, however, the accused must admit to "being disorderly" in some way, although frequently this is left vague on the record.  

In the end, the difference between the ACD and disorderly conduct is not going to be measurable in most cases.  The measurable impact on a person's life of an ACD is not likely to be anything.  The measurable impact on a person's life of a conviction for disorderly conduct is not likely to be anything.  This may not always be true in every situation (one of the reasons you need to hire a lawyer), but for the most part there isn't a radical measurable, objective difference.

Of course it is "nicer" not to have to concede guilt to any wrongdoing at all.  Therefore, an ACD is a nicer outcome.  Nevertheless, in more than 20 years of criminal defense handling an untold number criminal cases, I can say that I have never once had a client who accepted a disorderly conduct settlement return to me and say that the disorderly conduct somehow had some terrible impact on his or her life.  There have beens some unique situations in which we avoided disorderly conduct for rare, specific reasons.  (And included among those of course are people who never wanted any plea but wanted to have their cases tried.)

 

Situations other than First Arrest

 

For those who are accused of petit larceny who have prior contacts with the criminal justice system, the ability to make predictions about the possible outcomes is diminished.  Much will depend on the nature of the prior criminal history, the extent of the prior criminal history, and the background and personal situation of the accused.  The likelihood of an ACD settlement, while perhaps legally permissible, will diminish dramatically.  Nevertheless, a non-criminal (disorderly conduct) settlement may still be in the cards depending on the circumstances of the case and the value of the property in question.  (For Nassau County the likelihood of a non criminal (disorderly conduct) settlement begins to move very quickly toward ZERO for those with a prior arrest history (especially if that history includes prior petit larceny charges).  Assuming a settlement is desired, it will be the job of the criminal defense lawyer to navigate the negotiation process with the Government and the Court in hopes of settling the matter favorably.