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New York Penal Law 165 00 Misapplication Property

By Spodek Law Group | July 17, 2023
(Last Updated On: October 17, 2023)

Last Updated on: 17th October 2023, 04:55 pm


New York Penal Law 165.00 Misapplication of Property – What You Need to Know

New York Penal Law 165.00 covers the crime of misapplication of property. This law makes it illegal to misuse someone else’s property that they entrusted to you. For example, if someone loans you their car and you sell it without permission, you could be charged with misapplication of property.

This crime is a class A misdemeanor. That means if convicted, you could face up to 1 year in jail. You may also have to pay fines and restitution to the victim.

Misapplication of property cases can be complex. There are specific elements prosecutors must prove. There are also defenses that could beat the charges.

This article will break down New York Penal Law 165.00. We’ll explain what it covers, penalties, and how to fight the charges.

What is Misapplication of Property?

New York Penal Law 165.00 states that someone commits misapplication of property if they:

  • Knowingly possess personal property of another person under an agreement to return it, and
  • Loan, lease, pledge, pawn or otherwise encumber the property without the owner’s consent in a way that risks the owner losing the property or money
  • Intentionally refuse to return rented property worth over $100 after the owner makes a written demand

Let’s break this down further.

Elements of the Crime

To be convicted under NY Penal Law 165.00, prosecutors must prove these elements beyond a reasonable doubt:

  • You possessed someone else’s personal property – This means you held or controlled property like a car, jewelry, electronics, etc. It has to belong fully to someone else.
  • You had an agreement to return the property – There must be proof you agreed to give the property back to the rightful owner. This is what makes it “misapplication” versus regular theft.
  • You knew it belonged to someone else – You have to knowingly possess the other person’s property. You can’t accidentally commit misapplication.
  • You misused the property – This means you either:
  • Encumbered it without consent in a way that risks the owner losing it or money
  • Example: Pawning someone else’s watch without permission
  • Intentionally refused to return rented property worth over $100 after a written demand
  • Example: Keeping a rented TV after the rental company sends a certified letter demanding its return


Misapplication of property is a Class A misdemeanor in New York. This carries penalties of:

  • Up to 1 year in jail
  • Fines up to $1,000
  • Probation up to 3 years
  • Restitution to the victim

The value of the property does not impact the criminal charge. Even misusing property worth just $100 can lead to 1 year in jail if convicted.

However, the value will impact restitution. You may have to repay the victim for the full value of the misused property.

Defenses to Misapplication of Property Charges

There are defenses that could fight misapplication charges and get the case dismissed or acquitted at trial. Some examples include:

  • Lack of criminal intent – If there’s no evidence you knowingly misused the property, this negates the intent required for conviction. For example, if you thought you had permission to pawn the item.
  • Return of property – Under NY Penal Law 165.00(3), it’s a defense if the owner recovered the property undamaged before charges were filed.
  • No loss to owner – If the owner suffered no economic loss due to the misuse, this can also be a complete defense.
  • Accidental loss – You aren’t criminally liable if the property was accidentally destroyed or stolen before you could return it.
  • Invalid demand – In rental refusal cases, it’s a defense if the owner didn’t properly comply with the written demand requirements.

An experienced criminal defense attorney can evaluate the evidence and build a defense strategy. This may lead to reduced or dismissed charges.

Misapplication has some overlap with other theft crimes, but there are differences:

  • Larceny – Taking someone else’s property without consent upfront. Misapplication involves initial lawful consent to possess the property.
  • Embezzlement – When someone misappropriates property already in their lawful possession due to employment, office, or other fiduciary duty. Does not require an agreement to return the property.
  • Criminal possession of stolen property – Knowingly possessing property that was stolen through larceny or robbery. Doesn’t require initial lawful possession.

Misapplication can also relate to misusing property in other specific contexts:

  • Misapplication of construction funds – NY Penal Law 165.10
  • Misapplication of medical assistance program property – NY Penal Law 165.15

Procedures in Misapplication of Property Cases

The procedures in misapplication cases are similar to other criminal cases in New York:

  • Arrest – Police may arrest you at the scene or after an investigation if they find probable cause of misapplication of property.
  • Charging – The district attorney files a formal misdemeanor complaint charging you with Penal Law 165.00. You may be released or held on bail.
  • Plea negotiations – Many cases end in a plea bargain rather than trial. An attorney may be able to negotiate reduced charges or sentencing.
  • Trial – If no plea deal, the case proceeds to a bench trial or jury trial. The DA must prove guilt beyond a reasonable doubt.
  • Sentencing – If convicted, the judge will impose sentencing within the statutory limits – up to 1 year in jail.

Having an experienced criminal defense lawyer during this process is critical. They know how to fight the charges and negotiate favorable outcomes.

Finding a Lawyer for Misapplication of Property Charges

Misapplication cases require an attorney familiar with New York theft crimes and trial procedures. Key credentials to look for include:

  • Handling extensive misdemeanor cases
  • Past experience achieving charge reductions, plea deals, and trial victories
  • Knowledge of defenses that apply to misapplication charges
  • Resources to thoroughly investigate the allegations
  • Ability to negotiate restitution amounts

Don’t take chances with public defenders or less experienced lawyers. The consequences of a misapplication conviction can follow you. Retaining the right lawyer can help avoid a criminal record.

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