Also known as: lawfully possess · lawful possessor · legal possession
Written by attorneys — see sources below.
Possession of another's property acquired or held with the owner's consent or under legal authority rather than by trespass. This status distinguishes embezzlement, which requires initial lawful possession followed by fraudulent conversion, from larceny, which requires a trespassory taking at the moment of acquisition.
Lily Lopez serves as head curator at a nonprofit art museum. The board entrusts her with authority to catalog and display donor sculptures. She later loans one sculpture to a private gallery for a personal fee while falsifying records to conceal the transaction. Because Lily held the sculpture with the museum's consent from the outset, her later conversion satisfies the elements of embezzlement.
Luke Latham, an attorney appointed trustee for a client's settlement proceeds, deposits the funds in an escrow account under his control. He then uses the money for personal gambling losses instead of disbursing it to the client. Luke's initial lawful possession through his trustee role turns the misappropriation into embezzlement.
In December 1948, Morissette went hunting on a large tract of land in Michigan that the Government had used as a practice bombing range for the Air Force. Spent bomb casings from the range had been dumped into heaps and left exposed to the weather for four years or more. Morissette collected three tons of the casings, flattened them at a nearby farm, and sold them for eighty-four dollars. Morissette worked as a fruit stand operator in the summer and as a trucker and scrap iron collector in the winter. He was an honorably discharged veteran of World War II who had a good reputation among his neighbors. He loaded the casings onto his truck and transported them in broad daylight without any effort to conceal what he was doing. When authorities began an investigation, Morissette voluntarily and candidly told them the whole story, explaining that he believed the casings were abandoned and that he had no intention of stealing them. He was indicted for unlawfully, willfully, and knowingly stealing and converting property of the United States valued at eighty-four dollars in violation of 18 U.S.C. § 641. At trial, the District Court refused to permit Morissette to show that he thought the property was abandoned or to argue that he lacked criminal intent. The court instructed the jury that if it believed the government testimony, Morissette was guilty, and the jury convicted him. The court sentenced him to two months in prison or a fine of two hundred dollars. The Court of Appeals affirmed the conviction. The Supreme Court granted certiorari.
View caseLandon Long, previously convicted of a disqualifying offense, keeps a handgun inside his home for protection against intruders. The statute prohibits possession by such offenders unless the possession qualifies as lawful. The court holds that self-defense possession in the home does not meet the lawful possession element required to avoid liability.
New York has regulated public carriage of handguns since the early twentieth century. The Sullivan Law of 1911 made possession of a handgun without a license a crime. It was later amended to require that applicants for a license to have and carry concealed a pistol or revolver prove good moral character and other statutory criteria. The present scheme makes it a crime to possess any firearm without a license, whether inside or outside the home. Possessing a loaded firearm outside one’s home or place of business without a license is a felony. A license to possess a firearm at home or in a place of business requires a licensing officer to be satisfied as to good moral character and other statutory criteria. To carry a firearm outside the home for self-defense, an applicant must obtain an unrestricted license to have and carry a concealed pistol or revolver by proving that proper cause exists. If an applicant does not demonstrate proper cause, he may receive only a restricted license allowing carry for limited purposes such as hunting, target shooting, or employment. No New York statute defines proper cause. New York courts have held that an applicant shows proper cause only if he can demonstrate a special need for self-protection distinguishable from that of the general community. Brandon Koch and Robert Nash are law-abiding adults from Rensselaer County. Both sought unrestricted licenses to carry handguns in public for self-defense without claiming any special individualized threats. Each was denied an unrestricted license and given a restricted license instead. Koch and Nash sued state licensing officials under 42 U.S.C. § 1983, claiming the denials violated the Second and Fourteenth Amendments. The District Court dismissed the complaint. The United States Court of Appeals for the Second Circuit affirmed, relying on its prior decision upholding New York’s proper-cause standard.
View caseEmbezzlement requires that the defendant hold the property lawfully at the time of the initial acquisition or entrustment and then convert it later. Larceny instead requires a trespassory taking from someone with a superior right of possession at the moment the defendant first obtains the property.
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No. Low-level employees typically hold only custody rather than lawful possession of employer property. Misappropriation by such an employee constitutes larceny rather than embezzlement because the initial taking is trespassory.
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Yes. When mandatory verification steps or supervisor approvals are conditions precedent to valid issuance of funds or property, failure to complete them means the defendant never acquires lawful possession. The conduct then aligns with larceny rather than embezzlement.
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A bona fide claim of right negates the fraudulent intent required for embezzlement even when the defendant holds lawful possession. Open assertions of the belief that the property is owed as compensation can support the defense.
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…stealing is a conversion, but certainly not every knowing conversion is a stealing. “To steal means to take away from one in lawful possession without right with the intention to keep wrongfully .” (Italics added.) Irving Trust Co. v. Leff , 253 N. Y. 359, 364, 171 N. E. 569, 571. Conversion, however, may be consummated without…