Mitigating Circumstances in New York Embezzlement Cases

Embezzlement defense attorneys recognize that mitigation is one aspect to each and every criminal defense strategy that is very often overlooked by inexperienced counsel, and may not even be on the average person’s radar in the context of serious criminal charges. A mitigating circumstance is something that will address a defendant’s conduct, history or character, not necessarily to support or argue the idea that the person didn’t commit a crime or isn’t guilty of the crime with which they have been accused, but instead helps to explain the criminal conduct, put the actions into context, or give a prosecutor reason to believe that the criminal conduct was not reflective of the person’s overall character and personality such that there’s very little concern for reoffending. Mitigation can and should often be the first focal point of any criminal defense strategy, particularly in the context of plea negotiations and/or sentencing.

An individual may not be able to realistically claim flat out that they did not do whatever they are accused of, but may be able to provide some sort of reasonable explanation for why they have committed a crime, or why this was an anomalous action that will never be repeated. The answer to the question, “Who are you and why should the court or DA care?” is answered based by an explanation of the mitigating circumstances that may be present in a person’s in the context of a criminal case, very often in the form of what can be referred to as a “mitigation package” or “pre-pleading memorandum.”

This focus on mitigation comes up more often than average in white-collar, fraud, and embezzlement cases, perhaps because the people accused with these kinds of crimes are often not career criminals, and often have never had any meaningful run-ins with the law before. They are typically upstanding members of the community who may have a made a serious mistake or become caught up in something beyond their understanding or control.

The answer to this question of “who are you?” or “why should we care?” may mean the difference between state prison and probation, a felony and a misdemeanor, or a criminal record and no criminal conviction. To help understand such mitigating factors, and how they might affect your particular case, an accused person should contact a New York theft attorney immediately.

While mitigating factors can lead to the outright dismissal of a particular criminal case, these kinds of circumstances and issues will more often lead to a reduction of a person’s New York embezzlement charges. Factors that often arise in the embezzlement or financial fraud context include the minimal impact on the alleged victim, the relatively small amount of money taken, the relationship of the people involved, and the person’s position within an organization or structure. Other factors that apply to this and many other cases can be how many times the person committed these crimes, what the person used the money for, and the person’s ability to pay restitution. These are all important mitigating factors the DA and court may take into consideration.

There is a delicate balance to be struck when diving into a person’s life and background and the circumstances of a case. Not every person or case is best suited for focusing on these kinds of issues, since it could end up leading to a more severe sentence or to a prosecutor taking a case even more seriously than they were initially inclined to. This is a fairly sophisticated calculus, and having an attorney experienced in this aspect of criminal cases is key. There are many factors that would adversely affect sentencing and push a judge or prosecutor toward a higher sentence. For example: What was the impact of the person’s acts upon the victim? Did the individual embezzle because of pure and unadulterated greed? Did they exploit a vulnerable person, company or business because of their selfishness? Did they use the money to satisfy their own desires and comforts? Did they use this to help a child that suffers from a mental or physical health issue? Can a person make restitution?

While looking deeper into a person’s actions and background can yield some helpful information, it could be potentially overwhelmed by the answers to questions like these, and it may sometimes be best to approach the case on more of the surface level to avoid these kinds of difficult questions.

One major factor that can negatively impact the defense of a case, and is a kind of counterpoint to mitigating information regarding the defendant, is the background and role of the victim. The more vulnerable the targeted person or entity, the more sympathetic the person is who suffered a loss. The law does not differentiate between a victim that is a mom and pop restaurant versus a big business, or a rich individual versus a poor individual. Despite this neutrality on these issues in the eyes of the law, the same cannot be said with regard to how seriously a prosecutor or judge will take a particular case. To the contrary, they will look at these kinds of issues with great interest, and this could mean the difference between a felony and a misdemeanor offer, or years of difference in a prison sentence.

To determine the existence of any mitigating circumstances that may either impact a person’s penalties in their New York embezzlement or other case, it is important to contact an experienced criminal defense attorney.

Call our criminal lawyers and former Manhattan prosecutors at (212) 312-7129 or contact us online today.