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Thu 6 Jul, 2006 05:48 pm
Hi all,
I'm in the throes of prepping for the NY July Bar, and there is one concept that keeps tripping me up. I'd appreciate any help anyone may be able to offer.
"Larceny by Trick" is where the defendant obtains POSSESSION of personal property of another by means fo a representation or promise that he KNOWS is false AT THE TIME he takes possession.
Example- Driver pulls car into gas station, asks attendant "ten dollars regular, please." After the attendant puts the gas in the tank, Driver shouts "thanks for the freebie, sucker!" and takes off without paying.
"Larceny by False Pretenses" is where the defendant obtains TITLE to personal property of another by means of representation or promise that he knows is false at the time he takes title.
Example- James goes into a store to purchase a jacket. Seeing the price, he decides to give himself a discount by switching tags with another, less expensive coat. He brings it up, pays the reduced price and leaves.
I understand the two examples, but for some reason, I'm having problems identifying these concepts in PMBR practice hypos (they are REALLY tricky!)
Did anyone else have a problem with this concept? Any advice, websites, tips, hints, etc. that might help? I'm starting to lose it here.
Here is an example I was talking about with some study friends and we were split on the answer-
What would it be if a person goes to rent a car, he does so, then either:
(A) Two days before he has to return it, he then decides he likes it so much he chooses to keep it? or
(B) Has the intent to steal it even before he rented it?
Would there be a difference?
Thanks for ANY help anyone can provide!
Re: Student needs help with a legal concept- Help, please!
JustanObserver wrote:I understand the two examples, but for some reason, I'm having problems identifying these concepts in PMBR practice hypos (they are REALLY tricky!)
Did anyone else have a problem with this concept? Any advice, websites, tips, hints, etc. that might help? I'm starting to lose it here.
I'm not familiar with "larceny by trick" and "larceny by false pretenses." It seems that NY makes a distinction based on whether the owner gives up possession or gives up title. I'd think that most states would have done away with that distinction (in Illinois, these would both be covered under "theft by deception").
JustanObserver wrote:Here is an example I was talking about with some study friends and we were split on the answer-
What would it be if a person goes to rent a car, he does so, then either:
(A) Two days before he has to return it, he then decides he likes it so much he chooses to keep it? or
(B) Has the intent to steal it even before he rented it?
Would there be a difference?
Thanks for ANY help anyone can provide!
(A) since he didn't have the intent to deceive at the time of the transfer, this would not be larceny by trick. Instead, it would be theft from bailment or simple theft.
(B) this would be larceny by trick, since there was an intent to deceive at the time of the transfer, and there was only a transfer of possession, not of title.
Maybe this will help:
http://faculty.ncwc.edu/toconnor/293/293lect11.htm
"1. Wrongful taking -- The state must show that there was an element of control, however brief, over someone else's property by the defendant. Control doesn't mean touching. If you sell someone else's bicycle to a passerby, even if you didn't touch it, you have taken it. The same with financial transactions; you don't need to actually handle money to take it. A common defense to this element is "borrowing". Since larceny is a specific intent crime, the law requires considering whether there's an intent to steal or a genuine intent to return something.
There's no such thing as "finder's keepers" for lost or mislaid property under Theft Law. All states have little-known statutes establishing the standards by which a reasonable effort must be made to find the true owner. However, if there's no real way of ever finding the true owner (like finding a dollar bill on the sidewalk), the taking does not constitute larceny. Many states have constructed three levels of taking:
larceny (theft) by trick -- con games, schemes, and swindles
larceny (theft) by deception -- stings, scams, price altering
larceny (theft) by fraud -- inside trading, telemarketing, credit card"
I was also under the impression that one major difference between them is that in "Larceny by Trick" the rightful owner is aware of the transfer but is conned into thinking there is a proper transfer going on. In "Larceny by False Pretenses" the property is usually transferred without the rightful owner's prior knowledge. The key there being the rightful owners state of knowledge at the time of transfer of possession.
fishin wrote:I was also under the impression that one major difference between them is that in "Larceny by Trick" the rightful owner is aware of the transfer but is conned into thinking there is a proper transfer going on. In "Larceny by False Pretenses" the property is usually transferred without the rightful owner's prior knowledge. The key there being the rightful owners state of knowledge at the time of transfer of possession.
First, thanks for the help so far guys.
Yeah, the way I'm remembering it so far is that trick is where the transfer itself is proper (no deceit involved). In pretenses, there is fraudulent behavior on the part of the defendant to actually get the item in the first place, as well as title.
It seems so simple, but damn those hypos can really trip you up
fishin wrote:I was also under the impression that one major difference between them is that in "Larceny by Trick" the rightful owner is aware of the transfer but is conned into thinking there is a proper transfer going on. In "Larceny by False Pretenses" the property is usually transferred without the rightful owner's prior knowledge. The key there being the rightful owners state of knowledge at the time of transfer of possession.
I think that's wrong. In criminal law, the emphasis is hardly ever on the
victim's state of mind. It's not even necessary for the victim to be "fooled." For instance, suppose that the purchaser attempts to trick an undercover police officer. The police officer knows that the purchaser has no intention of conducting a legitimate transaction, but that doesn't mean that the purchaser cannot be arrested for attempted larceny.
JustanObserver wrote:Yeah, the way I'm remembering it so far is that trick is where the transfer itself is proper (no deceit involved). In pretenses, there is fraudulent behavior on the part of the defendant to actually get the item in the first place, as well as title.
Not the way that you described it in your initial post. There, the
only difference between "larceny by trick" and "larceny by false pretenses" is that the former involves a transfer of possession and the latter involves a transfer of title. In the
NYCL Penal Code, I can't find any distinction between the two (seems like the law only defines one offense: larceny), so I'm not sure if there is anything else that distinguishes the two offenses.
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