THEFT IN NEW YORK
Under New York Penal Law the legal term for theft is larceny. A person would face a charge of larceny if that person takes, obtains or withholds property of another person with the intent of depriving the owner of that property. There are several ways that a person can commit larceny including trespassory taking, trickery, embezzlement or false pretenses.
Under N.Y.P.L. § 155.05, there are 5 different larceny offenses including petit larceny, larceny in the fourth degree, larceny in the third degree, larceny in the second degree and larceny in the first degree. Each charge is based on the value of the property taken, with a charge of petit larceny being the least serious charge involving property with a value of less than $1,000. Because the possible sentence for any larceny conviction could mean some time behind bars, most larceny offenses are considered aggravated felonies. In addition, all theft offenses constitute a crime involving moral turpitude (CIMT). This means that if you are not a U.S. citizen you will likely face deportation if convicted of larceny.
In Hamilton v. Att’y Gen., 480 Fed. Appx. 35 (2d Cir. 2012) the second circuit found grand larceny in the fourth degree, a violation of N.Y. Pen. Law § 155.35, to be an aggravated felony under federal law. The court based its conclusion on the fact that grand larceny is a theft offense and that the defendant was sentenced to one to four years in prison.
In People v. Gale Rogers, 17 Misc.3d 1129 (2007) defendant pleaded guilty to attempted grand larceny in the second degree. In this case the defendant was accused of embezzling over $100,000 from her employer.
However, if an immigrant is convicted of petit larceny in violation of N.Y. Pen. Law § 155.25 deportation is not likely as petit larceny carries a maximum sentence of up to a year in prison. A defendant who is sentenced to less than a year would likely not face deportation under the aggravated felony ground, but could be nonetheless be inadmissible on the CIMT ground.
THEFT IN NEW JERSEY
New Jersey’s criminal code has a number of theft offenses including theft as a disorderly persons and theft as a crime. Theft as a disorderly persons involves stealing property that has a value of less than $200 while theft as a crime involves stealing property that has a value of over $200 or more. There are three degrees of the offense of theft as a crime: theft as a crime in the fourth degree, third degree, and second degree. In addition, there are several theft offenses based on specific types of theft such as by extortion, theft of services and shoplifting.
If you are convicted of theft as a disorderly persons offense the maximum sentence is 6 months in jail. Even with a disorderly persons theft crime, an immigrant could face deportation. All theft offenses are considered CIMT. There is an exception for minor crimes, called petty offense exception.
In Hatkewicz v. Att’y Gen., 350 F. Appx. 667 (3d Cir. 2009) defendant faced deportation based on two different crimes committed years apart. Hatkewicz was convicted of attempted robbery and shoplifting. While attempted robbery is a deportable crime, the Third Circuit specifically noted that the defendant faced deportation also because he was convicted of shoplifting in violation of N.J. Stat. Ann. § 2C:20-11. Shoplifting is a deportable offense because it is a theft crime, and therefore a CIMT.
It is important to understand that a New Jersey theft conviction can also negatively impact other forms of immigration relief. In McKoy v. Att’y Gen., 552 Fed. Appx. 118 (3d Cir. 2014), defendant was a permanent resident, and pleaded guilty to theft by unlawful taking in violation of N.J. Stat. Ann. § 2C:20-03. While McKoy was initially sentenced to a term of probation, he was ultimately resentenced to three years in prison based on repeated probation violations and deported from the United States.
If you have been charged with a theft offense in New York or New Jersey, contact a criminal immigration lawyer to represent you at trial and protect your immigration status.