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165.40 (Crim Psn. of Stolen Property)

Criminal Possession of Stolen Property in the Fifth Degree 165.40

Under New York law:

"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."

This is a common charge that accompanies petit larceny (155.25) in most shoplifting cases. It is no defense that you are also being accused of stealing it (see below) so this allows the government to charge you with both stealing and possessing the same stole item. Some of the applicable, underlying law is included below but contact us for a case evaluation to get a better idea of what you are facing.

No Defense. Section 165.60 limits the defenses that are allowed as follows:

In any prosecution for criminal possession of stolen property, it is no defense that:

1. The person who stole the property has not been convicted, apprehended or identified (this allows charging of 165.40 even if it cannot be proven who stole the merchandise); or

2. The defendant stole or participated in the larceny of the property; or

3. The larceny of the property did not occur in this state.

Property is defined in section 155.00 and 156.00 as any money, personal property or thing of value. (This means that something as inexpensive as a stolen can of soda can result in a misdemeanor charge which carries a 1 year jail maximum.)

Stolen Property is defined in section 155.05 as property that has been wrongfully taken, obtained, or withheld from an owner by a person who did so with the intent to deprive another of such property or to appropriate such property to himself or herself or a third person. (This means that the property in issue must actually be stolen and cannot be yours. Oftentimes, a store will make a mistake and accuse you of stealing something that is your own.)

Intent is defined as "conscious objective or purpose". Thus, a person acts with intent to benefit himself or herself or a person other than an owner of property or to impede the recovery of property by an owner when that person's conscious objective or purpose is to do so. (This means that you can't accidentally steal something. If you made a mistake, contact us to discuss resolving your case).

Important New York Presumption. In New York, a person who knowingly possesses stolen property is presumed to possess it with the intent to benefit himself or herself or a person other than an owner thereof or to impede its recovery by an owner thereof. (This means that if you are in possession of stolen goods, you will have some explaining to do. Contact us to discuss this further.)

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