Citation Numbers: 167 Misc. 2d 628, 640 NYS2d 425
Judges: Benitez
Filed Date: 2/26/1996
Status: Precedential
Modified Date: 2/16/2022
OPINION OF THE COURT
Defendants are charged with petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth
Defendants move to dismiss the accusatory instrument asserting that the crimes of petit larceny and criminal possession of stolen property are not established by the facts pleaded. Specifically, defendants assert that the act of soliciting a reward for the return of lost property which they briefly possessed is not criminal under our statutes. They argue that they took reasonable measures to return the property, did not intend to deprive the owner permanently of that property, and that seeking a reward for its return was lawful.
Penal Law § 155.05, to the extent applicable to this case, defines larceny as follows:
"1. A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.
"2. Larceny includes a wrongful taking, obtaining or withholding of another’s property, with the intent prescribed in subdivision one of this section, committed in any of the following ways:
"(b) By acquiring lost property. A person acquires lost property when he exercises control over property of another which
Penal Law § 165.40 provides that "a person is guilty of criminal possession of stolen property in the fifth degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof’.
Defendants argue that an intent to permanently deprive the owner of property need be established for larceny or criminal possession of stolen property to have been committed and that a temporary withholding of property is insufficient to constitute either crime. The statutes clearly provide that, as to larceny, either an intent to deprive the owner of the property or an intent to appropriate the property to oneself or another is required. Penal Law § 155.00 (4) provides that "to 'appropriate’ property of another to oneself or a third person means * * * (b) to dispose of the property for the benefit of oneself or a third person.” As to criminal possession of stolen property, an intent to benefit oneself or another or to impede the owner’s recovery of the property is required. Therefore, where a person offers to return the property for a reward, the proper analysis is whether such conduct establishes an intent to appropriate the property to the possessor.
Accordingly, when one acquires lost property which he knows to have been lost or mislaid and does not take reasonable measures to return it to its owner, he commits larceny and criminal possession of stolen property if his intent is to dispose of the property for the benefit of himself or another person. (See, People v Colon, 28 NY2d 1 [1971].) The issue presented here is, therefore, whether one who seeks to return lost property in return for a reward which he has solicited has made what the statute characterizes "reasonable measures” to return it and whether he has intended, by seeking a reward, to dispose of the property for his own benefit.
In Green v Heinrich (65 Misc 2d 622 [App Term, 1st Dept 1971], affd 38 AD2d 691 [1st Dept 1971]), a civil action for recovery of a reward for returning stolen stamps, the court held that "a purchaser, whose initial possession is not wrongful and who returns the stolen goods voluntarily upon a promise to pay a reward, should be and is entitled to the reward.” That court distinguished its facts from the situation where the finder of lost or stolen property waits until a reward
The rationale of these civil action decisions is that a person cannot receive compensation for fulfilling a legal obligation that attaches upon finding the property, i.e., the obligation to make reasonable efforts to identify the rightful owner of the property and return it without seeking a benefit (reward) when one had not yet been offered.
In criminal cases, the same rationale has been applied to determine whether the finder of lost property has committed the crime of larceny or criminal possession of stolen property. In People v O’Reilly (153 App Div 854 [1st Dept 1912], affd, 207 NY 714 [1913]), the Court affirmed the judgment of conviction for the crime of criminally receiving stolen property where defendant solicited a reward for the return of lost securities. The Court characterized the attempt to obtain a reward as extortion and held that prior Penal Law § 1308 specifically provided that the holding of lost property while seeking a reward for its return constituted the crime of criminally receiving stolen property.
The current larceny and criminal possession of stolen property statutes do not specifically refer to the seeking of a reward for the return of lost property as being acts which render the conduct criminal. They do, however, specifically provide that a person commits a criminal act by withholding lost property with the intent to appropriate the property to himself or an
Defendants assert that the People did not serve statement notice at defendants’ arraignment and that the statements made subsequent to arrest should be precluded. The court papers do not indicate statement notice being served at arraignment. Accordingly, the People must show that statement notice was timely served. If they should do so, a hearing is ordered on defendants’ motions to suppress the statements. A hearing is ordered on defendants’ motions to suppress the physical evidence recovered as a result of their arrest.