19-4111 Ferreiras Veloz v. Garland 1 IN THE
2 United States Court of Appeals 3 For the Second Circuit 4 ________
5 AUGUST TERM, 2020 6 7 ARGUED: NOVEMBER 23, 2020 8 DECIDED: JUNE 7, 2021 9 10 No. 19-4111 11
12 ANDY PABEL FERREIRAS VELOZ, AKA ANDY FERREIRAS, 13 Petitioner, 14 15 v. 16 17 MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, 18 Respondent. * 19 20 ________ 21 22 On Petition for Review of a Final Decision of the Board of Immigration Appeals. 23 24 No. A061-308-478. 25 26 ________ 27 28 Before: CALABRESI, KATZMANN, and SULLIVAN Circuit Judges. 29 ________
* The Clerk of Court is directed to amend the caption as set forth above. 19-4111 Ferreiras Veloz v. Garland
1 Petitioner Andy Ferreiras seeks review of a final order of removal from the
2 Board of Immigration Appeals (“BIA”). The BIA found Petitioner removable as a
3 non-citizen convicted of two or more crimes involving moral turpitude based on
4 its determination that New York petit larceny constitutes such a crime. The Court
5 of Appeals, (Calabresi, J.) certifies to the New York State Court of Appeals the
6 question of whether an intent to “appropriate” property under New York Penal
7 Law § 155.00(4)(b) requires an intent to deprive the owner of his or her property
8 either permanently or under circumstances where the owner’s property rights are
9 substantially eroded.
10 Judge Sullivan dissents in a separate opinion.
12 ADAM AMIR & NOAH A. LEVINE, Wilmer Cutler Pickering Hale and Dorr
13 LLP, New York, NY, for Petitioner.
14 ETHAN P. DAVIS, Acting Assistant Attorney General – Civil Division
15 (Cindy S. Ferrier, Assistant Director, Sarai M. Aldana, Trial Attorney,
16 Office of Immigration Litigation, Civil Division, Department of
17 Justice), Washington, D.C., for Respondent-Appellee.
2 19-4111 Ferreiras Veloz v. Garland
1 CALABRESI, Circuit Judge:
2 This case requires us to determine whether the intent provision of New
3 York’s larceny statute is a categorical match with the Board of Immigration
4 Appeals (“BIA”) definition of the intent required for crimes involving moral
5 turpitude (“CIMTs”) under 8 U.S.C. § 1227(a)(2)(A)(ii). Petitioner Andy Ferreiras
6 seeks review of a BIA order finding him removable based on convictions for three
7 CIMTs. Ferreiras argues that none of his crimes of conviction, all three of which
8 were for petit larceny, are CIMTs. He contends that the New York statute
9 encompasses a broader set of larcenous intents than the BIA’s definition of CIMTs.
10 Since 2016, the BIA has defined a theft crime as a CIMT when it includes the
11 intent to deprive owners of their property “either permanently or under
12 circumstances where the owner's property rights are substantially eroded.” Matter
13 of Diaz-Lizarraga, 26 I. & N. Dec. 847, 853 (BIA 2016). Using the categorical
14 approach in Petitioner Ferreiras’s case, the BIA ruled that the intent requirement
15 for larceny in New York Penal Law (“NYPL”) is a categorical match with the BIA’s
16 CIMT definition.
17 Ferreiras argues that this was error. Under New York law, larceny requires
18 the intent either to “deprive” someone of their property or to “appropriate” the
3 19-4111 Ferreiras Veloz v. Garland
1 property of another. NYPL § 155.05(1). Ferreiras maintains that the definition of
2 “appropriate” in the statute makes the definition of larceny under New York law
3 broader than the BIA’s definition of a CIMT, and that therefore these definitions
4 are not a categorical match. Ferreiras points out that NYPL § 155.00(4)(b) includes
5 under the term “appropriate” the intent “to dispose of the property for the benefit
6 of oneself or a third person.” He contends that because this provision does not
7 include a temporal limitation, the statute makes criminal even minimal takings
8 that are not covered by the BIA’s definition of a CIMT.
9 We do not doubt that the Diaz-Lizarraga rule applies to Ferreiras. We have,
10 however, left open the question of whether New York petit larceny constitutes a
11 CIMT under that standard. See Obeya v. Sessions, 884 F.3d 442, 445 n.1 (2d Cir. 2018).
12 The BIA has said that it does. See Matter of Obeya, 26 I & N Dec. 856 (BIA 2016). But
13 we owe no deference to the BIA’s reading of New York law. See Gill v. I.N.S., 420
14 F.3d 82, 89 (2d Cir. 2005). The issue before us is therefore: what does the New York
15 statute require, and does reading the statute or the relevant New York cases make
16 us sufficiently sure of that requirement?
17 Since examination of that statute and those cases leaves us uncertain, we
18 believe it is prudent to ask the New York State Court of Appeals (“NYCA”) how
4 19-4111 Ferreiras Veloz v. Garland
1 it would interpret § 155.00(4)(b). We therefore certify to the NYCA the question
2 whether an intent to “appropriate” property under New York Penal Law §
3 155.00(4)(b) requires an intent to deprive the owner of his or her property either
4 permanently or under circumstances where the owner’s property rights are
5 substantially eroded, which, as noted earlier, is how the BIA defines a theft
6 involving moral turpitude.
7 BACKGROUND
8 Andy Ferreiras is a native and citizen of the Dominican Republic who
9 became a lawful permanent resident of the United States in 2011. Before he was
10 detained by the Department of Homeland Security (“DHS”), he worked in the
11 restaurant industry and as a barber in the Bronx. In 2017, Ferreiras pleaded guilty
12 to three separate charges of petit larceny under NYPL § 155.25. On July 3, 2019, an
13 Immigration Judge applied the categorical approach, and found him removable as
14 a non-citizen convicted of two or more CIMTs pursuant to 8 U.S.C. §
15 1227(a)(2)(A)(ii). Ferreiras appealed to the BIA, arguing that the intent provision
16 of New York’s larceny statute encompasses takings intended to neither
17 permanently nor substantially erode property rights, making it broader than the
5 19-4111 Ferreiras Veloz v. Garland
1 federal definition. See NYPL § 155.00(4)(b). The BIA found Ferreiras’s argument
2 precluded by Matter of Diaz-Lizarraga and Matter of Obeya.
3 Ferreiras timely petitioned for review before our Court. 1 He argues again
4 that New York petit larceny is not a CIMT under the categorical approach because
5 its plain language encompasses thefts with less culpable intent than the Diaz-
6 Lizarraga rule requires.
7 STANDARD OF REVIEW
8 Our jurisdiction over Ferreiras’s petition for review is limited to
9 “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Whether New
10 York’s petit larceny statute qualifies as a CIMT is a question of law. Accordingly,
11 we review de novo. See Gill, 420 F.3d at 89.
12 DISCUSSION
13 Finding a categorical match is a tricky business. We must determine
14 whether state law permits convictions for crimes that would not be CIMTs under
15 the appropriate federal definition. See Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)
1Submissions from the parties indicate that DHS removed Ferreiras to the Dominican Republic in May of 2020.
6 19-4111 Ferreiras Veloz v. Garland
1 (explaining the categorical approach); Matthews v. Barr, 927 F.3d 606, 616-617 (2d
2 Cir. 2019) (applying categorical approach to New York’s child endangerment law).
3 We therefore begin with the federal definition. In that respect, we pay due
4 deference to the BIA’s delegated authority to define a CIMT, and its expertise in
5 doing so. See Gill 420 F.3d at 89 (“Because the BIA has expertise applying and
6 construing immigration law, we afford Chevron deference to its construction of
7 undefined statutory terms such as ‘moral turpitude.’”). As recited above, the BIA
8 defines a theft as a CIMT where it involves “an intent to deprive the owner of his
9 property either permanently or under circumstances where the owner's property
10 rights are substantially eroded.” Diaz-Lizarraga, 26 I. & N. Dec. at 853.
11 But we do not owe the BIA deference when it interprets state law, because
12 it is not an expert in state law. 2 See Mendez v. Mukasey, 547 F.3d 345, 346 (2d Cir.
13 2008) (“[W]e owe no deference to the BIA’s construction of state criminal
14 statutes.”); Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006). Instead, we give
15 full deference to the state. See e.g., Gill, 420 F.3d at 90 (relying on New York state
2For this reason, we do not defer to the BIA’s interpretation of NYPL § 155.00 in Matter of Obeya, 26 I & N Dec. 856 (BIA 2016).
7 19-4111 Ferreiras Veloz v. Garland
1 court interpretation of its own criminal laws when applying the categorical
2 approach to CIMTs).
3 This core principle of federalism is especially important in situations like
4 this one, where the need to ascertain state law is required by federal law, and
5 where litigants who are incarcerated or have been deported may be able to seek a
6 reopening of their case even many years later should our decision as to state law
7 prove to be wrong. Consider what might happen if we found that the statute is a
8 match, and a few years later the NYCA defined it as clearly not a match. What
9 would happen if a petitioner then sought habeas or similar relief? Certification
10 allows us to avoid precisely such potential problems.
11 In order to apply the categorical approach, we must “identify the minimum
12 criminal conduct necessary for conviction under a particular statute by looking
13 only to the statutory definitions—i.e., the elements—of the offense, and not to the
14 particular underlying facts.’” Hylton v. Sessions, 897 F.3d 57, 60 (2d Cir. 2018)
15 (quoting United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018)). Our inquiry therefore
16 begins with the statute and its plain language.
17 Under New York penal law, “[a] person is guilty of petit larceny when he
18 steals property.” NYPL § 155.25. Stealing property requires either the intent to
8 19-4111 Ferreiras Veloz v. Garland
1 “deprive another of property,” or the intent “to appropriate the same to himself or
2 to a third person.” NYPL § 155.05(1). To “deprive” another of property is defined
3 as “(a) to withhold it . . . permanently or for so extended a period . . . that the major
4 portion of its economic value or benefit is lost to him, or (b) to dispose of the
5 property in such manner . . . as to render it unlikely that an owner will recover
6 such property.” NYPL § 155.00(3). To “appropriate” property means “(a) to
7 exercise control over it . . . permanently or for so extended a period . . . as to acquire
8 the major portion of its economic value or benefit, or (b) to dispose of the property
9 for the benefit of oneself or a third person.” NYPL § 155.00(4).
10 Thus, NYPL § 155.00(4)(a) clearly coheres with the federal requirement for
11 a CIMT. The crux of Ferreiras’s argument is, however, that § 155.00(4)(b)’s intent
12 “to dispose of the property for the benefit of oneself or a third person,” is a less
13 culpable mental state than the Diaz-Lizarraga definition. He argues that this intent
14 could be as minimal as joyriding, or stealing something with the intent of putting
15 it back the next day.
16 Ferreiras contends, moreover, that the intent requirement in the larceny
17 statute is so manifestly broader than the Diaz-Lizarraga rule that we need not, and
18 indeed cannot, look any further. In making this argument, he relies principally on
9 19-4111 Ferreiras Veloz v. Garland
1 Hylton, where we held that the BIA erred in looking beyond the clear language of
2 a statute “when the statutory language itself, rather than the application of legal
3 imagination to that language, creates the realistic probability that a state would
4 apply the statute to conduct beyond the generic definition.” 897 F.3d at 63
5 (citations omitted). We are however, not persuaded that the meaning of this
6 statute is so plain that we can simply rely on its language.
7 What the statute makes criminal depends on the meaning of “dispose” in
8 NYPL § 155.00(4)(b), for that is the sub-section of the statute that does not have
9 any explicit temporal limitations. Does it mean, as Ferreiras thinks obvious,
10 something like “use,” so that a temporary theft clearly falls within the statute’s
11 ambit? Or, does “dispose” suggest something more like “throw away,” in which
12 case some degree of permanence is implied? The statute leaves us in doubt. And
13 that means we must look to state cases interpreting the statute to see if they make
14 clear the meaning of “dispose” in the statute.
15 Some thirty-five years ago, in People v. Jennings, the NYCA said, “[t]he mens
16 rea element of larceny. . . is simply not satisfied by an intent temporarily to use
17 property without the owner’s permission, or even an intent to appropriate
18 outright the benefits of the property’s short-term use.” 69 N.Y.2d 103, 119 (1986);
10 19-4111 Ferreiras Veloz v. Garland
1 accord People v. Jensen, 86 N.Y.2d 248, 252 (1995) (“The intent to ‘deprive’ or
2 ‘appropriate’ prescribed in section 155.05 is satisfied by the exertion of permanent
3 or virtually permanent control over the property taken.”) (internal quotations
4 omitted). The NYCA seemed to reinforce that principle more recently in People v.
5 Medina, which found the exclusion of the definitions of “deprive” and
6 “appropriate” from a jury charge to be reversible error in part because the jury
7 might have been misled into “thinking that any withholding, permanent or
8 temporary, constituted larceny.” 18 N.Y.3d 98, 105 (2011).
9 On the other hand, as Ferreiras argues, those cases concerned NYPL §
10 155.00(4)(a), not (4)(b), and so these statements might well be only dicta as to (4)(b).
11 As a result, we believe that Jennings and Medina are not necessarily determinative
12 of what the NYCA would say about NYPL § 155.00(4)(b) if it addressed that
13 provision directly. In this respect we are influenced by an analogous situation in
14 Connecticut, which has an identical provision in its larceny statute. Compare Conn.
15 Gen. Stat. § 53a-118(a)(4)(B) with NYPL § 155.00(4)(b). In State v. Wieler, the
16 Connecticut Supreme Court addressed its § (4)(B), and held that it merely
17 “requires disposal of the property without the intent permanently to deprive the
18 victims of their property.” 660 A.2d 740, 742 (Conn. 1995). We cannot be sure that
11 19-4111 Ferreiras Veloz v. Garland
1 the NYCA would interpret NYPL § 155.00(4)(b) otherwise, or find that the
2 subsection encompasses an intent to substantially erode property rights..
3 Turning to New York’s lower courts does not clarify the issue. Several cases
4 seem to support the government’s position. For example, in People v. Brigante the
5 Appellate Division explained that larcenous intent is constituted by “a
6 substantially permanent appropriation of the property.” 186 A.D.2d 360, 360 (1st
7 Dep’t 1992). See also People v. Hoyt, 92 A.D.2d 1079, 1079 (3d Dep’t 1983) (“[A]
8 temporary withholding of the [stolen property], by itself, would not constitute
9 larcenous intent.”); People v. Montgomery, 39 A.D.2d 889 (1st Dep’t 1972) (requiring
10 evidence of intent permanently to deprive taxi owner of the vehicle to sustain
11 grand larceny conviction where robber abandoned the car after a short drive).
12 Similarly, in People v. Drouin, the Appellate Division relied on Jennings to hold that
13 a landlord’s intent to possess his tenant’s ATV temporarily was insufficient to
14 sustain a larceny conviction. 143 A.D.3d 1056, 1058, (3d Dep’t 2016). 3
3An additional line of Appellate Division cases has found reversible error where a trial judge excluded the definitions of “deprive” and “appropriate” from the jury charge in a larceny case because the jury could be misled “into thinking that any withholding, permanent or temporary, constituted larceny.” People v. Matthews, 61 A.D.2d 1017, 1017 (2d Dep’t 1978). See e.g., People v. Archie, 71 A.D.3d 686, 688 (2d Dep’t 2010); People v. Albanese, 88 A.D.2d 603, 603 (2d Dep’t 1982); People v. Johnson, 75 A.D.2d 585, 585 (2d Dep’t 1980). Again, it is not clear in these cases whether
12 19-4111 Ferreiras Veloz v. Garland
1 But we also find some possible support for Ferreiras’s position in the lower
2 courts of New York. In In re Reinaldo O., the Appellate Division interpreted NYPL
3 § 155.00(4)(a) to uphold a petit larceny conviction against a student who
4 temporarily stole his teacher’s credit card. 250 A.D.2d 502 (1st Dep’t 1998). And,
5 more recently, the Appellate Division has explained that a larceny conviction
6 could be sustained where “the trial evidence established a completed asportation
7 of the [stolen property] with larcenous intent, even if the takings were to be viewed
8 as temporary.” People v. DiCarlo, 293 A.D.2d 279, 280 (1st Dep’t 2002). The
9 government argues that even these cases can be read, in line with Jennings, to
10 require more than a temporary taking in order to support a larceny conviction.
11 Perhaps, but like Jennings, none of these cases specifically interprets NYPL §
12 155.00(4)(b). We are therefore left without clear guidance about the applicability
13 of Jennings to that section.
14 Given these New York cases, if certification were not available, we would
15 likely hold that NYPL § 155.00 conforms to the BIA’s definition of a CIMT, and
16 does require an intent to deprive owners of their property permanently, or in such
the NYCA or the Appellate Division intends this rule to apply to NYPL § 155.00(4)(b).
13 19-4111 Ferreiras Veloz v. Garland
1 a way that their property rights are “substantially eroded.” In other words, we
2 would read Jennings as applying to both sub-sections (a) and (b) of NYPL §
3 155.00(4). As a result, if the NYCA declines certification we would most probably
4 agree with the government that petit larceny in New York constitutes a CIMT.
5 We believe, however, that the NYCA should have the last word on this
6 issue, and for that reason, certify the question. 4 We are not suggesting that the
7 NYCA should answer us, but only asking it to speak if it wishes. 5 In this respect,
8 we are almost like the Appellate Division. The NYCA may take the case up if it
9 thinks we are wrong or if it simply wishes to speak to the issue. But it may also
10 decline to hear the case for any number of reasons, including a reluctance to
11 address the question at this time.
4 As we mentioned earlier, if we do not give the NYCA the opportunity now, and later they say we were wrong, we would have invited difficulties if any number of deported people sought to reopen their cases to correct the mistake. 5 We did something similar in NAF Holdings, LLC v. Li & Fung (Trading) Ltd., 772 F.3d 740 (2014).
There too, we indicated our likely outcome in the face of considerable Delaware case law. In that case we actually urged the Delaware Supreme Court to do something specific about those state cases, which it did. See NAF Holdings, LLC v. Li Fung (Trading) Ltd., 118 A.3d 175 (Del. 2015). Here we urge no outcome, but merely invite the NYCA, should it accept our certification, to speak on this issue.
14 19-4111 Ferreiras Veloz v. Garland
1 CONCLUSION
2 Because we believe it appropriate to give the NYCA a chance to speak to the
3 meaning of NYPL § 155.00(4)(b), one way or the other, in a case that concerns this
4 New York statute and its consequences, we certify the following question to the
5 New York State Court of Appeals:
6 Does an intent to “appropriate” property under New York Penal 7 Law § 155.00(4)(b) require an intent to deprive the owner of his or 8 her property either permanently or under circumstances where the 9 owner’s property rights are substantially eroded? 10 11 As always, if the NYCA accepts certification, we invite it to address any
12 other issues involving New York law as it relates to the instant case. This panel
13 will retain jurisdiction following the response of the New York State Court of
14 Appeals.
15 It is therefore ORDERED that the Clerk of this Court transmit to the Clerk
16 of the Court of Appeals of the State of New York a Certificate, as set forth below,
17 together with complete sets of briefs and appendices, and the records filed in this
18 Court by the parties.
15 19-4111 Ferreiras Veloz v. Garland
1 CERTIFICATE
2 The foregoing is hereby certified to the Court of Appeals of New York
3 pursuant to Second Circuit Local Rule 27.2 and New York Codes, Rules, and
4 Regulations Title 22, § 500.27(a), as ordered by the United States Court of Appeals
5 for the Second Circuit.
16 RICHARD J. SULLIVAN, Circuit Judge, dissenting:
I disagree with the majority’s decision to certify a question concerning New
York Penal Law § 155.00(4)(b) to the New York Court of Appeals. In my view, the
majority opinion takes a straightforward statutory provision that New York’s
highest court has repeatedly interpreted and asks it to consider the statute again.
Because such a certification is unnecessary and, worse, an imposition on the New
York Court of Appeals, I respectfully dissent.
I agree with the majority on the basic facts and general legal framework. In
2011, Andy Ferreiras, who is a citizen of the Dominican Republic, became a lawful
permanent resident of the United States. He turned to crime sometime later and
pleaded guilty in 2017 to three charges of petit larceny under New York Penal Law
§ 155.25. In light of these offenses, an Immigration Judge found that Ferreiras was
deportable pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), which renders an alien
removable when he is convicted of multiple “crimes involving moral turpitude.”
Larceny is a crime of moral turpitude only if it requires “an intent to deprive
the owner of his property either permanently or under circumstances where the
owner’s property rights are substantially eroded.” Matter of Diaz-Lizarraga, 26 I. &
N. Dec. 847, 853 (BIA 2016). So our task here is to determine whether the intent
required under New York’s larceny statute, as interpreted by the state’s case law, actually requires the intent to permanently deprive the property owner or
substantially erode the owner’s property rights. See Maj. Op. at 6–8 (describing
categorical approach); Quito v. Barr, 948 F.3d 83, 91–92 (2d Cir. 2020); Matthews v.
Barr, 927 F.3d 606, 616 (2d Cir. 2019) (“In determining whether NYPL § 260.10(1)
is a crime of child abuse, we employ the ‘categorical approach,’ looking only to the
text of NYPL § 260.10(1) and New York’s interpretation of that statute to determine
whether there is a categorical match with the BIA’s definition.”).
From my perspective, that is a question we could answer for ourselves,
without resorting to the “exceptional procedure” of certification. McGrath v. Toys
"R" Us, Inc., 356 F.3d 246, 250 (2d Cir. 2004). In the mine-run of cases, certification
is simply unnecessary because federal courts are competent to apply state law. See
McKesson v. Doe, 141 S. Ct. 48, 51 (2020) (“Our system of cooperative judicial
federalism presumes federal and state courts alike are competent to apply federal
and state law.” (internal quotation marks omitted)). Indeed, we certify questions
only when, after consulting the relevant statute’s text and the state’s binding
precedent, we conclude that “state law is so uncertain that we can make no
reasonable prediction” about how the state’s highest court would decide the
question. DiBella v. Hopkins, 403 F.3d 102, 111 (2d Cir. 2005); see also 17A Charles
2 A. Wright et al., Federal Practice & Procedure § 4248 (3d ed. 2007) (“Questions ought
not be certified if the answer is reasonably clear.”).
Here, both the text of the larceny statute and controlling New York case law
leave no doubt that larceny under New York law requires the same culpable
mental state as a crime involving moral turpitude. Under New York law, a person
is guilty of petit larceny only if he steals property with the intent to “deprive
another of property” or the intent “to appropriate the same to himself or to a third
person.” N.Y.P.L. § 155.05(1) (1965). To “deprive” another of property means “(a)
to withhold it . . . permanently or for so extended a period . . . that the major portion
of its economic value or benefit is lost to him, or (b) to dispose of the property in
such manner . . . as to render it unlikely that an owner will recover such property.”
Id. § 155.00(3). It is undisputed that such criminal intent matches the intent
required to qualify as a crime involving moral turpitude. Instead, the parties’
disagreement is over the statute’s definition of “appropriate,” which means “(a) to
exercise control over [the property] . . . permanently or for so extended a period
. . . as to acquire the major portion of its economic value or benefit, or (b) to dispose
of the property for the benefit of oneself or a third person.” Id. § 155.00(4). As the
majority recognizes, the first half of this definition also “clearly coheres with the
3 federal requirement” for a crime involving moral turpitude, as it explicitly
references the intent to exercise permanent control. Maj. Op. at 9.
Where the majority and I disagree, however, is over the second half of the
definition of “appropriate.” The majority opinion suggests that the statute’s use
of the term “dispose of the property” may criminalize larceny where the thief
merely intends to steal property for a brief duration; but that contorted reading
stretches the statutory terms beyond recognition. To “dispose of” plainly means
“[t]o transfer or part with, as by giving or selling” or “[t]o get rid of; throw out or
away.” The American Heritage Dictionary of the English Language (1969); see
Ballentine’s Law Dictionary (3d ed. 1969) (“To alienate, sell, or transfer.”); New
Oxford American Dictionary (3d ed. 2010) (“get rid of by throwing away or giving
or selling to someone else”).
This is how related statutory provisions use the term. In fact, under the
same statutory title on crimes involving theft, New York Penal Law § 165.65 directs
that a person can ordinarily be convicted of criminal possession of stolen property
based on “the testimony of one . . . to whom he disposed of such property.” N.Y.P.L.
§ 165.65(2) (emphasis added). Those words make senses only if we interpret
“disposed of” as akin to “transferred, conveyed, or sold.” Similarly, another
4 provision in the same chapter criminalizes certain fraudulent activity after a
person “sells or otherwise disposes of the property.” Id. § 185.05(1); see id. § 185.10
(criminalizing fraud related to mortgaged property when a person improperly
“sells, assigns, exchanges, secretes, injures, destroys or otherwise disposes of any
part of the property”); id. § 185.15 (similar list). Accordingly, contrary to the
majority opinion’s suggestion, the intent required to “dispose of the property”
under the state’s larceny statute could not “be as minimal as” the intent to take a
car joyriding or to steal property with the hope of returning it “the next day.” Maj.
Op. at 9. 1 The phrase instead requires action that would permanently or
substantially erode the property owner’s rights.
Any doubt on this score has already been eliminated by the New York Court
of Appeals, which has consistently made clear that “[t]he mens rea element of
larceny . . . is simply not satisfied by an intent temporarily to use property without
the owner’s permission, or even an intent to appropriate outright the benefits of
the property’s short-term use.” People v. Jennings, 69 N.Y.2d 103, 119 (1986); see
People v. Jensen, 86 N.Y.2d 248, 252 (1995) (“The intent to ‘deprive’ or ‘appropriate’
1 The majority opinion’s example of joyriding actually undermines its conclusion because the New York Court of Appeals already addressed the joyriding scenario and specifically “held that the intent merely to borrow and use an automobile without the owner’s permission cannot support a conviction for larceny.” People v. Jennings, 69 N.Y.2d 103, 119 (1986); see id. at 119 n.4. 5 prescribed in section 155.05 is satisfied by the exertion of permanent or virtually
permanent control over the property taken.” (internal quotation marks omitted)).
Applying this rule, the Court of Appeals held in People v. Medina that a trial court
committed reversible error when it failed to instruct the jury on the statutory
definitions of “appropriate” and/or “deprive,” thus potentially misleading the jury
into thinking that those terms covered “any withholding, permanent or
temporary.” 18 N.Y.3d 98, 105 (2011). In unmistakable language, the court went
on to find that “the concepts of ‘deprive’ and ‘appropriate,’” which are “essential
to a definition of larcenous intent,” “connote a purpose to exert permanent or
virtually permanent control over the property taken, or to cause permanent or
virtually permanent loss to the owner.” Id. (some internal quotation marks,
emphasis, and punctuation omitted).
The majority here nevertheless concludes that these opinions “are not
necessarily determinative” because, as the majority sees it, the state cases
addressed only the first half of the statutory definition of “appropriate” in
§ 155.00(4)(a), rather than the “disposed of” language in subdivision (4)(b) of the
definition. But the Jensen case did not even specifically refer to § 155.00(4)(a), let
alone limit its focus to that subdivision; instead, it spoke generally of the “intent
6 to ‘deprive’ or ‘appropriate’ . . . [as being] satisfied by the exertion of ‘permanent
or virtually permanent control over the property taken.’” 86 N.Y.2d at 252. For its
part, Medina quoted the statutory definitions of both “deprive” and “appropriate,”
18 N.Y.3d at 105 n.2, and at no point parsed out portions of the statutory definition
of “appropriate.” Importantly, if larcenous intent could mean a desire to
appropriate property for a short time, then the trial judge’s failure in Medina to
define the terms “deprive” and “appropriate” – and to communicate the
“permanent or virtually permanent control . . . or loss” that those terms imply –
would have been harmless error. Id. at 105.
Therefore, both the larceny statute and New York’s case law show that
larceny has as an element the intent to assume “permanent or virtually permanent
control over the property taken, or to cause permanent or virtually permanent loss
to the owner.” Id. That element clearly entails the intent to “substantially erode[]”
property rights, and thus aligns with the federal definition of a crime involving
moral turpitude. Matter of Diaz-Lizarraga, 26 I. & N. Dec. at 853.
“It would be manifestly inappropriate to certify a question in a case where,
as here, there is no uncertain question of state law whose resolution might affect
the pending federal claim.” City of Houston v. Hill, 482 U.S. 451, 471 (1987). In
7 opting to certify this straightforward case anyway, the majority shifts our burden
to interpret state law onto a court that is equally burdened, all while increasing the
litigation costs for parties who never requested certification in the first place. See
McKesson, 141 S. Ct. at 51; McCarthy v. Olin Corp., 119 F.3d 148, 153 (2d Cir. 1997).
I would not take this unnecessary procedural step, and instead would
decide this case as we have done numerous times before – by looking to the
relevant statute and clearly established law from the state’s highest court. And
because Ferreiras’s offenses qualify as crimes of moral turpitude, I would deny his
petition for review. Accordingly, I respectfully dissent.