Estimation of Loss in a New York Embezzlement Case

Actual loss is what is relevant in a sentencing in an embezzlement case in New York. It is treated no different than a “regular” larceny or grand larceny or theft. An experienced theft attorney can explain the role of estimation of loss in a New York embezzlement case.

If there is a theft in excess of $1,000, it is a class E felony of grand larceny in the fourth degree pursuant to New York Penal Law 155.30 as long it does not exceed $3,000, which is up to one and a third to four years in prison.

A class D felony of third-degree grand larceny is when there is an estimated loss of a minimum of $3,000, but not greater than $50,000. This offense has a maximum sentence of up to two and a third to seven years in prison pursuant to New York Penal Law 155.35. 

If the stealing is in excess of $50,000, but not more than $1,000,000, it would be a grand larceny in the second degree, which is an embezzlement of a C felony and up to five to 15 years in prison pursuant to New York Penal Law 155.40.

A class B felony when the larceny is in excess of $1,000,000 requires eight and a third to 25 years in prison. This crime is first-degree grand larceny pursuant to New York Penal Law 155.42.

The possession of embezzled funds are also considered crimes of criminal possession of stolen property and the degrees would be the same. A second-degree criminal possession of stolen property in excess of $50,000, but not more than a $1,000,000 is an example of criminal possession. It would still be the same level of crime, a C felony, and the same level of sentence of five to 15 years.

Criminal possession of stolen property in the first, second, third, and fourth are felonies which are the same for actual loss, but instead of being actual theft it would be the possession of those moneys that were taken. They are not mutually exclusive. Someone can be charged with both a larceny and possession of stolen property or one and not the other considering the estimation of loss in a New York embezzlement case.

While the estimation of loss in a New York embezzlement case is not the actual loss, a prosecutor and a judge may look at the potential loss and determine that it is well north of the amount that is contained in this indictment or in this plea.   

While it cannot be proven beyond a reasonable doubt, it still colors their view of what was stolen, how it was stolen, and the amount that was stolen. It is something that the person has to be prepared to deal with and address in advance of sentencing and as a part of plea negotiations if that is the route the person pursues.

An embezzlement lawyer best know the law, how it is technically applied, legal challenges that may be available and be prepared to manage the practical application of the law, guidelines and the courts.

If someone argues's over the judge’s reasonableness as they are about to be sentenced they likely have lost the battle if not the war. It may be unwise if a lawyer has not taken the steps to challenge the law, evidence and potential sentence, whether by fact or mitigation, prior to a sentencing.

It is critical for an attorney to be proactive. The numbers in terms of dollars are wrong. A search was improper or illegal. Restitution can be made. The defendant is a good person and was not consumed by greed. If an individual has waited for sentencing to challenge the judge’s reasonableness then they have exposed themselves to the higher echelon of prison.

When ascertaining actual losses, the guidelines in which the person falls can be broad. The biggest one is more than $50,000 but not in excess of $1,000,000. There’s a vast difference in the eyes of a judge and a prosecutor as to how an embezzlement should be punished even if statutorily it’s the same offense.

Even if the law says it is the same punishment guideline for stealing $55,000 in embezzlement as it is for $500,000 or $1,000,000 in embezzlement, there are differences and discretion afforded law enforcement within the range of sentencing. Theoretically, a judge could sentence you to no incarceration, but one to three years, two to six years and up to five to fifteen years as a first-time offender.

Actual loss is going to be relevant in the estimation of loss in a New York embezzlement case. A judge and a prosecutor will determine where along that guideline the person should fall. The person can get up to five to 15 years, for example, as a first-time offender. Maybe the person gets three to nine years; maybe the person gets one to three years. If your attorney is successful in advocating, then you may even get probation, so there are a lot of different factors.