New York Penal Law 165.40 defines criminal possession of stolen property in the fifth degree, a Class A misdemeanor that punishes knowingly holding stolen goods with the intent to benefit from them or to keep the rightful owner from getting them back. It carries up to 364 days in jail and a fine of up to $1,000.1New York State Senate. New York Penal Law 70.15 – Sentences of Imprisonment for Misdemeanors There is no minimum dollar value: a stolen phone charger supports the charge the same way a stolen laptop does.
What the Prosecution Has to Prove
Two elements, both beyond a reasonable doubt. First, that you knowingly possessed stolen property. Second, that you did so with intent to benefit yourself or someone other than the owner, or to prevent the owner from recovering it.2New York State Unified Court System. Criminal Possession of Stolen Property in the Fifth Degree Having the item in your hand is not enough on its own; the prosecution has to tie your possession to a guilty mind.
The statute reaches “any money, personal property or thing of value,” which is about as broad a definition as the Penal Law contains.2New York State Unified Court System. Criminal Possession of Stolen Property in the Fifth Degree “Possess” means having physical control or exercising dominion and control.3New York State Senate. New York Penal Law 165.40 – Criminal Possession of Stolen Property in the Fifth Degree Physical possession is simple — the item is on you or in your bag. Constructive possession is where cases get messier. If stolen goods turn up in your car, apartment, or storage unit, prosecutors will argue you had the power and intent to control them even without touching them. In shared spaces, the prosecution still has to connect the goods specifically to you, not just to the address.
How Knowledge Gets Proved
The knowledge element is where most 165.40 cases are won or lost. The prosecution must show you actually knew the property was stolen, not that you should have known or that a reasonable person would have been suspicious.3New York State Senate. New York Penal Law 165.40 – Criminal Possession of Stolen Property in the Fifth Degree Direct proof is rare. Prosecutors build knowledge through circumstantial markers: a price far below market value, a seller met in a parking lot at odd hours, serial numbers scratched off, security tags still attached. Any one of these details might not carry much on its own, but stacked together they give a jury a story to follow.
Once knowledge is on the table, intent often follows automatically. New York law allows (but does not require) a jury to infer intent to benefit from the property or to block the owner’s recovery from the fact of knowing possession alone.2New York State Unified Court System. Criminal Possession of Stolen Property in the Fifth Degree Hiding the item, selling it, refusing to return it, or passing it to a friend all satisfy the intent element on their own.
One category of defendant faces a tougher starting position. If you are in the business of buying or selling used goods — a pawnbroker or secondhand dealer — and you possess stolen property without having made a reasonable inquiry into the seller’s right to transfer it, the law presumes you knew it was stolen.4New York State Senate. New York Penal Law 165.55 – Criminal Possession of Stolen Property Presumptions Reasonable inquiry means asking for identification, checking receipts, or taking similar steps. The presumption can be rebutted by showing you actually did your due diligence, but it shifts the practical weight of the case.
Jail, Fines, and the Alternatives
A Class A misdemeanor carries up to 364 days in jail.1New York State Senate. New York Penal Law 70.15 – Sentences of Imprisonment for Misdemeanors New York deliberately capped it one day short of a year because a sentence of one year or more can trigger automatic deportation under federal immigration law. A judge is not required to impose any jail time and often will not for a first offense, but the ceiling is firm.
The maximum fine is $1,000.5New York State Senate. New York Penal Law 80.05 – Fines for Misdemeanors Every misdemeanor conviction also carries a mandatory surcharge of $175 and a $25 crime victim assistance fee, both assessed automatically at sentencing.6New York State Senate. New York Penal Law 60.35 – Mandatory Surcharge, Crime Victim Assistance Fee The court may also order restitution for the value of the stolen property or any damage the victim suffered.
Instead of jail, a judge can impose probation of two or three years.7New York State Senate. New York Penal Law 65.00 – Sentence of Probation Probation means regular check-ins and compliance with whatever conditions the court sets — drug testing, community service, stay-away orders. Violating a condition can bring you back in front of the judge facing the original jail sentence.
Where supervision would be overkill, a judge can order a conditional discharge instead. This releases you without jail or a probation officer, subject to court-set conditions, for one year. If restitution isn’t paid by the end of that year, the court can extend the conditional discharge by up to two more years.8New York State Senate. New York Penal Law 65.05 – Conditional Discharge This is a common outcome for first-time offenders when the property was low in value.
The ACD: Why It Matters Most
For many 165.40 defendants, the realistic goal is not an acquittal but an adjournment in contemplation of dismissal, known as an ACD. Under CPL 170.55, the court adjourns the case without a date, and if the prosecution does not move to restore it within six months, the charge is automatically dismissed.9New York State Senate. New York Criminal Procedure Law 170.55 – Adjournment in Contemplation of Dismissal Both sides must agree; a judge cannot impose an ACD over the DA’s objection.
Once dismissed, the case is treated as if the arrest and prosecution never happened. The statute explicitly says no one can suffer any disability or forfeiture because of an ACD, and the record is sealed.9New York State Senate. New York Criminal Procedure Law 170.55 – Adjournment in Contemplation of Dismissal For a first arrest on a low-value stolen property charge where the item has been returned, many prosecutors will agree to this outcome, and it is often what defense attorneys push hardest to secure.
Defenses That Can Actually Move the Case
Attacking the knowledge element is usually the strongest play. If you genuinely did not know the property was stolen — a fair price, a seemingly legitimate seller, an ordinary setting — the prosecution cannot meet its burden. Context does the work: buying a used phone from a coworker at a sensible price looks nothing like buying one from a stranger on the street for a fraction of its value.
Challenging possession itself matters most in constructive-possession cases. If the goods were found in a shared apartment or a borrowed car, mere association with the location is not enough. The prosecution has to show you personally exercised control over the specific items.
Two defenses the statute closes off: it doesn’t matter whether the actual thief has been caught or convicted, or whether the theft happened outside New York. And if you took part in the theft itself, you can’t argue the possession should be absorbed into the larceny rather than charged separately.
When the Same Facts Become a Felony
Fifth-degree possession is the floor of a five-tier ladder. The next step up, fourth-degree possession, is a Class E felony, and it kicks in whenever the property is worth more than $1,000 or falls into certain specific categories regardless of value: stolen credit or debit cards, firearms, public benefit cards, motor vehicles worth over $100 other than motorcycles, and religious items worth $100 or more taken from a place of worship.10New York State Senate. New York Penal Law 165.45 – Criminal Possession of Stolen Property in the Fourth Degree The item-specific triggers are what catch people off guard. A single stolen credit card is a felony even if nobody ever used it. If you have been charged under 165.40 rather than at a higher degree, it means prosecutors have concluded either that the property was worth $1,000 or less or that none of those special categories applies, or they have agreed to reduce a higher charge as part of a plea discussion.
What a Conviction Follows You With
A Class A misdemeanor conviction stays on your criminal record permanently unless you obtain a certificate of relief from disabilities or get the record sealed through a separate legal process. Unlike an ACD, a conviction does not expire. Employers running background checks will see it. New York restricts the use of criminal records in hiring decisions more aggressively than most states, but a theft-related misdemeanor can still cost you jobs involving cash, inventory, or positions of trust. Landlords and licensing agencies may weigh it too.
For non-citizens, even a misdemeanor theft conviction can carry immigration consequences, including deportation or denial of naturalization. The 364-day cap on the sentence helps avoid the harshest federal immigration triggers, but the conviction itself remains a factor in any immigration proceeding. If you are not a U.S. citizen, the immigration side of this charge deserves as much attention as the criminal side, and it should be raised with your attorney before you accept any plea.