NATIONALLY RECOGNIZED FEDERAL LAWYERS
New York Penal Code 155.43: Aggravated Grand Larceny of an Automated Teller Machine
|Last Updated on: 5th October 2025, 08:19 pm
Aggravated Grand Larceny of ATMs – When the Five-Year Lookback Falls Apart
Prosecutors charged you under Penal Law § 155.43 for aggravated grand larceny of an ATM, claiming this is your second ATM-related theft within five years. They’re pointing to a 2020 conviction for using a stolen debit card. But that prior conviction was for petit larceny under § 155.25, not grand larceny of an ATM under § 155.42.
This distinction matters because § 155.43 requires the prior conviction to be specifically for grand larceny “of an automated teller machine” under § 155.42. Not just any larceny involving an ATM. Not grand larceny generally. The exact statutory subsection. When prosecutors try to bootstrap general theft convictions into ATM-specific priors, they’re misreading the aggravation requirements.
Understanding this statutory precision transforms your defense. The five-year lookback period only counts convictions for the specific crime of grand larceny of an ATM. Prior convictions for identity theft, credit card fraud, or even regular grand larceny don’t trigger the enhancement. Each word in the statute limits its scope in ways prosecutors hope you won’t notice.
The Machine Versus Contents Distinction
This statutory precision becomes even more important when distinguishing between stealing an ATM machine and stealing from one. Section 155.42 criminalizes taking the machine itself as a Class E felony regardless of value. But taking money from an ATM using stolen cards falls under different statutes entirely.
Prosecutors routinely conflate these distinct crimes when seeking aggravated charges. They’ll claim your prior conviction for ATM fraud counts as grand larceny of an ATM. But using stolen cards at ATMs typically gets charged under § 190.65 (criminal possession of stolen property) or § 165.45 (criminal possession of stolen property obtained by credit card). Neither triggers § 155.43’s enhancement.
This confusion creates powerful defense opportunities. Force prosecutors to prove your prior conviction was specifically under § 155.42, not some other statute involving ATMs. Demand certified conviction records showing exact charges. Often, what prosecutors assumed were qualifying priors turn out to be different crimes that don’t support enhancement.
The Interstate Prior Problem
Building on prior conviction requirements, out-of-state convictions create additional complications. New York’s aggravated larceny statute requires the prior to be “a violation of this section” – meaning New York’s specific ATM larceny law.
But other states structure their theft statutes differently. New Jersey doesn’t have a specific ATM larceny statute. Pennsylvania includes ATM theft within broader theft provisions. When prosecutors try to use out-of-state convictions as priors, they must prove the other state’s statute contains all the same elements as New York’s § 155.42.
This equivalency analysis often fails. Different states define ATMs differently. Some include only bank machines, others include any cash-dispensing kiosk. Some require physical taking of the machine, others include electronic theft. These variations mean out-of-state convictions rarely qualify as valid priors for New York’s aggravated charge.
Challenging the Five-Year Calculation
Connected to prior conviction issues, the five-year calculation period isn’t as straightforward as prosecutors claim. The statute requires the current offense to occur within five years of “sentencing for the first such offense.”
But when exactly was sentencing? The initial sentence date? Resentencing after probation violation? Release from incarceration? Courts have reached different conclusions. This ambiguity creates opportunities to argue your current offense falls outside the five-year window.
The calculation becomes more complex with sealed convictions, youthful offender adjudications, or vacated sentences. If your prior conviction was later vacated, it shouldn’t count for enhancement. If you received youthful offender treatment, that’s not a conviction for enhancement purposes. Each procedural wrinkle potentially breaks the five-year chain prosecutors need.
The ATM Definition Challenge
Moving to substantive defenses, what exactly qualifies as an “automated teller machine” under the statute? The law doesn’t define it. Modern payment systems blur traditional boundaries.
Is a Bitcoin ATM covered? What about retail cash-back kiosks? Lottery machines that dispense cash winnings? Each arguably fits the plain language of “automated teller machine” but might not match legislative intent. When statutory definitions are ambiguous, the rule of lenity requires interpreting them favorably to defendants.
This definitional ambiguity becomes critical when the “ATM” involved isn’t a traditional bank machine. Prosecutors stretching the statute to cover any automated cash-dispensing device exceed the law’s intended scope. Your defense challenges whether the specific device qualifies as an ATM for statutory purposes.
The Ownership and Authority Defense
Building from definitional issues, ATM larceny requires taking property without authorization. But authorization isn’t always clear-cut, especially with shared accounts or informal financial arrangements.
Consider joint account holders who separate acrimoniously. One empties the account via ATM. Technically, joint holders have equal rights to all funds. Even if morally wrong, it might not constitute larceny. The same applies to authorized users on accounts who exceed informal limits.
This defense requires documenting any colorable claim to the funds or ATM access. Past patterns of sharing PINs. Joint account agreements. Powers of attorney. Even expired authorizations might show good faith belief in continued permission. Prosecutors must prove you knew you lacked authorization – difficult when financial relationships are complex.
The Duress and Coercion Exception
Connected to authorization, duress provides complete defense to larceny charges. Someone forced at gunpoint to withdraw money from ATMs isn’t guilty of grand larceny. But duress extends beyond immediate physical threats.
Economic duress can negate criminal intent. If you’re withdrawing money to pay ransom for a kidnapped relative, that’s not larceny. If you’re being extorted and fear for your safety, taking money might be justified. The key is documenting the coercive circumstances that compelled your actions.
This defense becomes powerful when combined with modern trafficking realities. Victims forced to commit ATM theft by traffickers aren’t criminals themselves. Romance scam victims manipulated into withdrawing money might lack criminal intent. Each situation requires careful documentation of the coercive dynamics involved.
The Sentencing Manipulation Issue
Even if convicted, sentence calculation under § 155.43 creates opportunities for reduction. The statute sets maximum penalties but doesn’t mandate minimums. Judges retain discretion to impose concurrent rather than consecutive sentences.
More importantly, if the prior conviction used for enhancement also increased your criminal history score, that’s improper double-counting. The same conviction can’t both trigger the aggravated charge and increase sentencing guidelines. This double-counting violates prohibition against multiple punishments for the same conduct.
Document any sentencing enhancements already applied based on the prior conviction. If you received enhanced sentences before, using the same conviction again for aggravation might violate double jeopardy principles. Courts increasingly recognize that recycling convictions for multiple enhancements is fundamentally unfair.
The Diversion Alternative
Beyond fighting charges directly, specialized diversion programs offer alternatives to prosecution. New York’s judicial diversion program under CPL Article 216 can apply even to repeat felony offenders in appropriate circumstances.
The key is demonstrating that underlying issues, not criminal intent, drove your conduct. Addiction leading to desperate money needs. Mental health crises affecting judgment. Economic desperation during pandemic unemployment. When ATM crimes stem from treatable conditions rather than criminal mindset, diversion becomes possible.
This approach requires early intervention before positions harden. Prosecutors are more amenable to diversion pre-indictment than after. Document treatment efforts, stability improvements, and community support. Transform the narrative from repeat criminal to person needing help.
Moving Forward
Aggravated grand larceny of ATM charges seem straightforward – you either have the prior conviction or you don’t. But every element contains complexity prosecutors overlook.
The specific statutory requirements that must be met. The precise prior convictions that qualify. The exact five-year calculation. The definition of ATM itself. Each creates defensive opportunities for those who look closely at statutory language rather than accepting prosecutors’ interpretations.
Understanding these nuances requires attorneys who read statutes precisely. Who recognize that aggravation requirements are narrow, not broad. Who see that five-year lookbacks have specific start and end points. Who know that not every ATM-related crime triggers enhancement.