Theft and its relatives: jostling, joyriding and fortune telling

As understood in the common law, theft in New York, New York means “larceny by trespassory taking,” according to the Criminal Jury Instructions by the New York State Unified Court System. At risk of stating the obvious, that definition might confuse rather than clarify the meaning of theft.

More clearly, the jury instructions state that a person commits theft when a person steals property. Notwithstanding the seeming simplicity of these terms, they are packed with meaning. Furthermore, crimes of theft bear many names depending on the nature and amount of the property. For example, a theft is understood as grand larceny when the property stolen exceeds a certain statutory limit under New York law; the greater the amount, the more severe the penalty.

From joyriding to jostling to fortune telling, there are at least 49 theft-related crimes in New York. The severity of such crimes ranges from misdemeanors to Class B felonies and a guilty verdict can result in jail time.

Jostling, for example, occurs when a person places his or her hand too close to the pocket or handbag of another. It may be hard to see how jostling could be a criminal act. Perhaps the legislature in New York understands the space around a person’s pocket or purse to be an extension of their property. If so, the intentional encroachment or trespass into that space would be considered wrongful. While such an act may seem benign, jostling was probably proscribed for the purpose of preventing an imminent theft.

Joyriding in New York has that meaning generally understood by teens and adults as driving another person’s car without permission. There are several nuances to the crime and the terms “knowing,” “owner” and “operate” are all defined with specificity. Here again, joyriding relates to theft as it is understood formally, that is, in the trespassory element. It is like the common law tort of trespass to chattels.

Finally, fortune telling is prohibited in New York insofar as it is not done “solely” for “entertainment or amusement.” The elements of fortune telling involve obtaining money in exchange for fortunes, which the fortune teller claims, or pretends, to provide through supernatural powers. The relation to theft is more obvious here because money is taken wrongfully. Of course, as with many crimes, certain defenses may apply for fortune tellers who in fact believe they can truly provide fortunes. 

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Neil S. Ruskin
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