Actual Loss v. Intended Loss in New York Embezzlement Cases

Intent is only one piece of a criminal act. However, intent alone is not enough. There are two key elements of a criminal act, the intent and the action.

An individual can intend to commit a crime and fail to do so despite their best efforts. The action may not be complete, but the person has taken enough steps to formally attempt to commit the crime in question. A person needs both a physical act and the intent to complete the crime.

Depending on the elements of the action, an individual can face varying degrees of penalties. To determine the degree of actual loss vs. intended loss in your New York embezzlement case, it is important to consult with an attorney. An experienced theft attorney in New York City can build a strong defense to help lessen any potential penalties you may be facing.

Elements of Loss

To commit a crime, an individual needs to have both the intent to commit that crime, and to follow through with the physical act of committing that crime. When it comes time for sentencing and to ascertain the dollar amount that is stolen, the court will go off the actual loss as opposed to the intended loss in a New York embezzlement case.

For example, it does not matter that the person may have intended to take $5,000,000, but only took $75,000. While the intended theft or hoped for embezzlement may be far greater, the actual loss will dictate the crime charged and exposure to prison subject to certain situations.

If an individual’s intent involves actual attempts, not merely hopes, aspirations, or goals, then that may be a crime too. In such a scenario, when an individual couples the steps that were taken to effectuate the crime and their intent is to embezzle a certain amount of money that is available, then a person has committed the crime of attempted embezzlement.

The value of the dollars an individual tried to steal through grand larceny would be used to calculate their criminal exposure, degree of crime, and sentencing guidelines.

For example, if an individual writes a check from their employer, but the transfer is stopped, they may still be charged with a crime. Although the individual did not receive the money, they intended to steal from their employer. This would make for a lesser charge, but would classify as a felony nonetheless as the intended loss in the New York embezzlement crime was significant.

Determining an Estimation of Loss

At the end of the New York embezzlement case, it is not the estimation of intended loss that is as important as the actual loss. This is because a person’s counsel is going to argue that a prosecutor can come up with any number they wish without any evidence or corroboration of the actual embezzlement amount.

If there is no evidence to back up the crime beyond just hearsay and a blanket assertion that the accused embezzled an amount, there would be a failure by the District Attorney to provide a defendant proper notice of the extent and nature of the crimes. It is the DA’s job to give the ability to the defendant to challenge the Grand Larceny and make restitution.

An estimation may or may not rise to the level of proof beyond a reasonable doubt at trial, where it is relevant in the initial stages of an investigation and arrest. For example, for bail purposes, the estimated loss or the purported loss is more critical, because it is in the initial investigatory stage that judges are willing to listen to a prosecutor’s claim more broadly and will be used by a prosecutor to secure enhanced bail.

When it comes time for a plea, the estimated loss is relatively irrelevant. The prosecution will want to determine what the actual loss is. Attorneys cannot make restitution under an estimated loss and the accused cannot take responsibility for an estimated loss. They need to know the actual loss in dollars and cents to effectively sentence an individual.