Embezzlement occurs when there is a theft of property by a person in a position of trust or responsibility over the property. The most common form of embezzlement occurs when an employee of a business steals funds from his or her employer by misdirecting money by fraud.
In New York, the crime of embezzlement is often charged as grand larceny by embezzlement.
If you have been charged with grand larceny by embezzlement, it is imperative that you contact an experienced criminal defense lawyer to help you fight the charges against you. Read on to learn more about the crime of grand larceny by embezzlement and the sentencing guidelines.
General Elements of Embezzlement
In order for a charge of grand larceny by embezzlement to be supported, the prosecutor must prove that all of the following elements existed at the time of the crime:
1. Fiduciary Relationship
The prosecutor must first prove that a fiduciary relationship existed between the defendant and the property owner. A fiduciary relationship occurs when there is a legal or ethical relationship between two parties regarding the management of property.
An experienced criminal defense attorney may be able to establish that a fiduciary relationship did not in fact exist. If there is not fiduciary relationship between the parties in question, then the crime of grand larceny by embezzlement will be dismissed in court.
Next, the prosecutor will have to prove that the theft of the property was in fact fraudulent. Fraudulent simply means that the defendant willfully took the property without the consent of the owner for his/her personal gain.
The prosecutor must also show that the defendant intended to keep the property as his/her own. There must be a substantial interference regarding the ownership of the party. This means that the original owner must be deprived of his/her control of ownership of the converted property.
The prosecutor must show that there was property converted during the fiduciary relationship. Generally, the property in dispute is personal property and not real property.
5. Of Another
The property of another person must have been taken without his/her consent.
6. Lawful Possession
A critical element of grand larceny by embezzlement is that the defendant must have been in lawful possession of the property at the time of the conversion during the fiduciary relationship. The defendant having mere custody of the property is not sufficient evidence. If the defendant did in fact have lawful possession, then the crime is grand larceny by embezzlement. Nevertheless, if the defendant had custody, he/she may still be charged with larceny.
Embezzlement Sentencing Guidelines
Grand larceny by embezzlement is punished as followed in New York:
- New York Penal Law 155.42: Grand Larceny in the First Degree
If the value of the property embezzled is over $1,000,000, then it is considered a Class B Felony punishable by up to 25 years in state prison.
- New York Penal Law 155.40(1): Grand Larceny in the Second Degree
If the value of the property embezzled is over $50,000, then it is considered a Class C Felony punishable by up to 15 years in state prison.
- New York Penal Law 155.35: Grand Larceny in the Third Degree
If the value of the property embezzled is over $3,000, then it is considered a Class D Felony punishable by up to 7 years in state prison.
- New York Penal Law 155.30(1): Grand Larceny in the Fourth Degree
If the value of the property embezzled is over $1,000, then it is considered a Class E Felony punishable by up to 4 years in state prison.
If you are facing grand larceny by embezzlement charges in Brooklyn, then contact criminal defense attorney Gilbert Parris to discuss your legal options. Gilbert Parris represents clients charged with white collar crimes throughout the greater New York City area including Brooklyn, Queens, the Bronx, and Manhattan.