A core category of property crimes is theft. Theft targets the allegation that the accused “converted” or appropriated the property wrongfully. The means the accused allegedly uses to obtain and keep the property is what defines these 4 types of crimes in New Mexico: Larceny, Robbery, Embezzlement, and Fraud. All types are similar in that they each contain the allegation that the accused intends to “permanently deprive” the rightful owner of the property; that they “convert” the property for their own gain.
Larceny
Larceny is the most common type of theft crime in New Mexico. It is defined as the stealing of anything of value that belongs to another person. The key elements of larceny include:
- Taking the property without the owner’s consent
- Intent to permanently deprive the owner of the property
- The property must have some value
Larceny is the most basic and easy to conceptualize form of theft. There are many specific types of larceny that are distinguished by the specific type of property or context in which it is taken which I will discuss a little bit below. However, in any of these subtypes, the general theme of an unconsented taking of valuable property with the intent to permanently keep or convert the property are required and essential.
Robbery
Robbery adds to larceny a crucial, aggravating factor: the use of force and or fear to take the property from the owner. This is what we think of when we imagine a bank robber who, holding a gun, says “empty the safe and give it to me or I’ll shoot!” The bank robber uses fear to intimidate and thereby commits his larceny. Even less dramatic forms of theft may be robbery if the property is forcefully removed from the owner directly like in the case of a purse snatching.
Embezzlement
Embezzlement is another significant theft crime in New Mexico, distinct from larceny in several key aspects. Embezzlement occurs when a person who has been entrusted with the property by the rightful owner misappropriates the property for his or her own personal use. In embezzlement the elements include:
- The defendant was entrusted with property or funds
- The defendant converted the property or funds for personal use
- There was fraudulent intent to deprive the owner of the property or funds
The key difference here is that in embezzlement the accused gets the property with the owner’s consent, whereas in a larceny there is never consent in the taking. With embezzlement, the accused is entrusted with the property but then uses the property improperly without the owner’s consent and for his own interests. This might occur, for example, in a business context, where the owner has an employee take money from the register to deposit at the bank, but instead the employee deposits to his own account. In that case, the employee obtained the money originally in a lawful way through the owner’s trust but then abused the trust. Another example could occur if a person lends a car to the accused and the accused never gives it back. Embezzlement cases can become quite complicated and may depend on the incisive analysis of financial records and more technical evidence.
Fraud
Fraud is in some ways like embezzlement but is distinguished by how the initial taking occurs. In a fraud, the initial taking rests on the accused’s use of a trick or misrepresentation to take the property. In fraud, the following elements must be proven.
- The defendant, made a promise he had no intention of keeping or misrepresented a fact to the victim,
- The defendant intended to deceive or cheat the victim;
- Because of the promise or misrepresentation the defendant obtained the property
Fraud involves a deception or trick at the outset while embezzlement does not. Fraud, for example, can occur in the context of a deceptive business transaction where the seller promises to, say, give the buyer a car and takes the money up front, but never intends to give the buyer the car.
Special categories
Theft charges can be distinguished by special circumstances or the types of property involved. As a consequence, there are any number of subtypes for these crimes. Consider that there will be special crimes in New Mexico to handle theft of firearms and cars, contexts like shoplifting, and particular means like identity theft.
Penalties
All of these crimes are actionable as civil lawsuits to compensate the victim for the loss. However, due to their seriousness, they are also crimes. Theft crimes are mostly, with some important exceptions, are defined in severity by the value of the property taken in the following way:
- Petty misdemeanor: Value of stolen property or services is $250 or less
- Misdemeanor: Value between $250 and $500
- Fourth-degree felony larceny: Value between $500 and $2,500,
- Third-degree felony larceny: Value between $2,500 and $20,000
- Second-degree felony larceny: Value of $20,000 or more
So for a larceny, theft of a small, cheap item like a carton of eggs would be a petty misdemeanor with a maximum possible penalty of under 6 months of jail, while a larceny of an extremely expensive diamond ring could be a second-degree felony with a maximum penalty of 9 years in prison. Fraud and embezzlement largely follow the same punishment schema. As a consequence, important litigation may lie in the valuation and accounting of the property.
Keep in mind that the penalties may be fixed and not dependent on market value in the case of theft of cars, firearms, livestock, etc. Similarly, robbery is going to be a serious felony no matter what the value of the property when taken.
