Actual Loss v. Intended Loss
There are many different types of theft crimes as per the law throughout the United States. One involves actual loss versus intended loss. It’s important to understand what this means.
Intent is one component of a theft crime, but it cannot be the only one. The actual action of the theft crime is also a part of it. If a person intends to commit a crime, yet fails in spite of trying, this alone is insufficient in actually being considered a crime. The action can only be completed if the individual takes the required steps to actually commit the theft or any other type of crime. There must be both a physical action and intent in order to complete a crime.
If a person is convicted of this crime, there are a number of penalties they can face. Those penalties largely depend on the specifics of the action taken. No matter what the situation, if you are arrested for committing a crime, you need an experienced attorney on your side to build a strong defense in your favor. It is the best chance you have at getting the charges against you reduced or even potentially dropped.
Elements of Loss
In order for a person to commit a crime, there must be two key elements in place: the intent to commit it and actually carry out a physical act to commit the crime. After the individual’s arrest and subsequent sentencing in court, to determine the penalties handed down, the court will consider the exact monetary amount that was stolen. In other words, the court will consider the actual financial loss instead of simply that which was intended in an embezzlement case.
For instance, a person may have intended to steal $1 million but only succeeded in stealing $100,000. Even if they intended to take a far greater amount of money than they ultimately stole, the actual loss comes into play and is the determining factor for the amount of prison the individual receives, as well as any other penalties handed down.
At the same time, it’s important to understand that if the defendant’s intent itself may also be counted as a crime. If they carry out certain steps to commit a crime and the intent is to commit embezzlement by stealing a specific amount of money, then the individual can also be charged with attempted embezzlement.
For example, if a person forges a check from another person but that individual catches on and puts a freeze on the check, the forger can still be charged with a crime. In other words, while the actual theft may not have been successful, the individual still had the intent to steal money from the other person. This would be considered a lesser charge, but at the same time, the person would still be charged with a felony if the amount of money they intended to steal was large.
Determining an Estimation of Loss
It should be known that ultimately, in an embezzlement case, the estimation of the intended loss is not as important as the actual amount of money that was lost. The defense attorney can argue that the prosecution may decide any financial amount they want without using any concrete evidence or the actual amount of money that was embezzled in the crime.
Just as with any other type of crime, there must be evidence in the case to back up that the crime actually occurred. It cannot simply be hearsay or an assumption of a specific amount of money that the defendant embezzled. This would equate to the District Attorney failing to provide the defense with proper notice of the nature and extent of the crimes with which they have been charged. The defense is legally entitled to the option of challenging the charge and making restitution.
While it is possible that a mere estimation can be proven beyond a reasonable doubt, it is usually relevant during the earlier stages of the case, specifically, during the investigation or arrest. Estimated loss is more important for bail purposes as it can set the stage for the prosecution being able to appeal to a judge so they can get enhanced bail for the defendant.
In addition, estimated loss is essentially irrelevant when the defense makes a plea. The prosecution will want an actual loss so that sentencing can be more appropriate. An attorney is unable to make restitution with an estimated loss. The defendant also cannot accept responsibility for an estimated loss. There must be a concrete dollar amount in place so the sentencing can be effective and appropriate.
- Actual Loss v. Intended Loss
- Burden of Proof
- Common Misconceptions
- Departure Considerations
- Elements of a Embezzlement Charge
- Embezzlement Sentencing Considerations in New York
- Harm in Sentencing
- Impact of Criminal History
- Juvenile Crimes, Delinquency & Youthful Offender Proceedings: Prosecutors
- Juvenile Crimes, Delinquency & Youthful Offender Proceedings: Raise the Age Law
- Loss in Sentencing
- Mandatory Minimum Sentencing
- Mandatory Sentences
- Misconduct Enhancement
- Mitigating Circumstances
- New York Embezzlement Arrest Process
- NYC Embezzlement Charges
- NYC Embezzlement Defense
- NYC Embezzlement Investigations
- NYC Embezzlement Lawyers
- NYC Embezzlement Offense Characteristics
- NYC Embezzlement Penalties
- NYC Embezzlement Sentencing
- NYC Embezzlement Sentencing Guidelines
- NYC Sentencing Hearings
- NYC Shoplifting Defense Lawyers
- NYC Shoplifting Lawyers
- NYC Theft Lawyers: Theft Crime Loss Estimation
- NYC Theft Offenses
- Theft Crime: Fair Market Value of Loss
- Types of Embezzlement