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NY Penal Law § 165.00: Misapplication of Property

June 29, 2020 Federal Criminal Attorneys

Misapplication of property involves encumbering or disposing of an item that someone trusted you with. According to the New York criminal code, it is a form of theft. That said, it is different from larceny and other theft crimes due to the fact that the owner of the property initially gave their permission to you to use or hold their property. Unfortunately, instead of giving it back, you disposed of it in some way, or you just held on to it after the owner demanded it to be returned to them.  You would have committed the crime of misapplication of property under New York Penal Law § 165 if a person entrusts property to you and then you:


  1. Lend, lease, vow or pawn it to someone else without the consent of the property’s owner, or
  2. Refuse to return the property to its owner as you originally agreed to in a rental agreement.


For Example

Marisol loaned her niece Ayanna a pair of diamond earrings to use for a special dinner party she was attending. When Ayanna got back home from the dinner party that evening, she realized that one of the earrings had gone missing. When she told her aunt Marisol, Marisol was furious and threatened to call the police to report her.  The earrings were very expensive.  Regardless of the value of the diamond earrings, in this scenario, Ayanna could not be prosecuted for misapplication of property.  This is because there is no evidence that she, in any way, encumbered the earrings, purposely disposed of them, or refused to return them to her aunt.


Offenses that are Related

Criminal possession of stolen property in the fifth degree: New York Penal Law § 165.40

Grand larceny in the fourth degree: New York Penal Law § 155.30


Possible Defenses

In order to get convicted of the crime of misapplication of property, the prosecutor needs to demonstrate that you did not have the permission of the owner of the property to continue to encumber it or otherwise unlawfully dispose of it.  An alternative defense under New York Penal Law § 165.00(3) is that even though you may have gotten rid of the property unlawfully, the owner was able to recover it and has possession of it. On top of that, if the explanation as to why you were not able to return the property to its owner on demand is that it was accidentally destroyed, then you cannot be convicted under the misapplication of property statute.


The Sentence

Due to the fact that misapplication of property is categorized as a Class A misdemeanor, if you are convicted, you could be sent to serve time in county jail for up to one year.  You may additionally be ordered to pay a fine to the court and monetary restitution to the owner of the property. It is also possible that the judge may simply sentence you to a probation term of 3 years.



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