Fair Market Value of Loss in New York

Fair market value of loss in New York is the value of the loss of stolen or misappropriated property at the particular time and place that it was stolen. This issue comes into play with many stolen goods, given that a car, for example, is not worth what it once was after 10 years of use. This is important for many reasons, not least of which is that if stolen property exceeds certain values, it can be a more and more serious charge with greater and greater potential prison terms attached. This concept pertains not only to a loss of value from time and use, but also value in the context of the community and location. For example, a Mercedes-Benz vehicle has a very different value in the United States than it does in Germany. The long and short of it is that it is the replacement value and the current value of that loss that matters, not the value of the item or goods at some other point in time or some other location.

• New York Larceny Offenses
• Shoplifting and Other Thefts
• Penalties for Embezzlement

It may be obvious, but it’s important to remember that this issue doesn’t really arise in the context of stolen money or cash - if someone allegedly stole $1,000,000, the fair market value of that loss is the same amount. What this means is that there is not really a fair market value of loss issue when it comes to embezzlement cases in New York, for example. Embezzlement involves the theft of money, essentially by definition, not property. The value of money does not have a different value from company to company and business to business, at least not in the eyes of the law in New York criminal law. For all intents and purposes, fair market value in an embezzlement case is the amount of the money that was allegedly misappropriated in real dollars.

Embezzlement generally deals with actual money as opposed to more speculative property subject to fluctuations in value with markets and the like. It is not a category of criminal offense that involves a home or a car, it is currency-related crime. While money does lose value over time with inflation (or can even gain value over time in other circumstances), in the context of a New York embezzlement case, the fair market value is not relevant in that sense.

Generally, courts do not exclude much in cases for fair market value of loss. This means that it is not a defense to offer the difference in money the individual has taken in comparison to the money they have earned on behalf of the company. Put simply, it does not work that way. Saying someone increased revenues of their company and assisted in lowering the person’s tax liabilities, does not mean the person should deduct that or reduce that from the amount that they allegedly embezzled. In the eyes of the law, to allow that kind of exclusion or offset would be to give license to a useful employee to steal, which cannot be the case.

Someone’s position in the company or in the business that he or she allegedly defrauded can be relevant to sentencing, either as a mitigating factor, or an aggravating factor where the person was in a particular position of power and control over the funds of the company. There are many different professional roles and capacities and fiduciary responsibilities that go along with those jobs and roles. These all may be considered by the court in crafting a sentence when someone is convicted of this kind of crime. Other relevant factors can be whether the scheme was long lasting or even ongoing on the time of arrest, as opposed to an isolated incident or short-term scheme. The court will also likely want to know what the direct and indirect impact was on people both inside and outside of the company. Being unprepared for these kinds of inquiries or being unprepared to refute allegations on this topic from a prosecutor, can have extremely adverse impacts for an accused person.

Finally, something that is also highly relevant in financial fraud cases is a defendant’s ability and willingness to pay restitution. If an accused person is able to make the victims whole or close to whole, courts and District Attorneys may look more favorably on that person and that case.

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