Theft of Services - Understanding Penal Law Section 165.15
Reproduced below is the actual text of New York's Theft of Services statute (PL Section 160.15), but interpreted and with commentary by 27 year veteran New York City criminal lawyer, Don Murray. The interpretations and commentary will give the reader a meaningful understanding of the offense. The actual text of the law appears in italics. Commentary is normal text included inside brackets [ ].
The most commonly charged versions of PL 165.15, related to cab fare disputes, subway fare evasion, and restaurant bill disputes are paragraphs 2 (restaurant bill disputes), and paragraph 3 (subway fare evasion and taxi fare disputes). If you are interested in those you can scroll directly to those paragraphs below, but you will miss out on the brief overview about understanding criminal laws and how they are written that is particularly interesting, and even includes a picture of ice cream (below).
PENAL LAW 165.15
A person is guilty of theft of services when:
[Criminal statutes are designed ideally to read sort of like recipes. The law is written to require that certain ingredients be true. If all of the ingredients are present, then the person is guilty of the crime being defined. ALL of the ingredients must be present or else the person is not considered guilty of the crime. Lawyers don't call these things requirements ingredients, because lawyers like to use strange terminology. Lawyers call the ingredients of crimes "elements". So if you are charged with a crime, you need to take a look at the definition of the offense, and break it down into the "elements" that the law defines. You will have a defense to the charge if you think that the Government will be unable to prove one or more of the required elements.]
[Multiple "flavors" of the same crime: With some crimes, there is one, and only one way to commit them. Most crimes, however, have been defined to have different ways to be guilty. In the text of the crime, these different ways will usually be written into different numbered paragraphs. Lawyers refer to these number paragraphs as "subsections," but I like to think of them as different "flavors" of ice cream. In the end, it is all "ice cream" but some people might make vanilla, others might make chocolate, and still others might make mint chip. But it is all ice cream.
And the same is true for different versions of the same crime. The legislature often writes out different ways to be guilty of the same crime, and those different ways are usually found in different numbered paragraphs of the definition of the general crime. This offense is no different. The New York Legislature has defined 11 different ways you can be guilty of service theft, each with its own numbered paragraph, as below. People will often read their charges and be terrified to discover that they are accused of 5 separate charges (that we lawyers call "counts") of the same offense. People imagine that the number of charges increases their risk and makes their case five times worse. In most cases, however, all five counts will relate to 5 different versions of the same offense, or five different flavors of the same ice cream. Being found guilty of all five versions will not typically make it any worse at all. There are some exceptions to this, when the five versions are not considered part of the "same transaction or occurrence" but that is a topic for you to discus with your lawyer. The odds are that multiple counts are simply different flavors of the same ice cream, and will not necessarily increase your exposure.]
1. He obtains or attempts to obtain a service, or induces or attempts to induce the supplier of a rendered service to agree to payment therefor on a credit basis, by the use of a credit card or debit card which he knows to be stolen.
[So just for illustration, let's break down the first "flavor" of PL 160.15, that is, paragraph 1, into its "elements". The first two elements are that the accused must have "obtained or attempted to obtain", "a service". This is interesting because notice how the statute makes it the same offense to "attempt" to obtain the "service" as actually obtaining the service. Normally, under our criminal law, attempting to commit a crime is not as serious as actually committing the crime. In fact, typically the crime of attempted [insert crime name here] will be one level of seriousness BELOW the actual fully completed crime. But here, in this statute, the legislature made actually committing the offense just the same as attempting to commit the offense. In the alternative to "obtaining a service", the legislature says you can be guilty of this flavor of 160.15 by "inducing the supplier of a rendered service to agree to payment on a credit basis, or (again) ATTEMPT to induce the supplier... The law goes on to require that the accused use a credit card or debit card, and the law requires that the accused know that the credit or debit card be stolen.
So the "ingredients" or elements of this flavor might be mapped out to look like this:
(Obtained or Attempted to Obtain) OR (induce or attempt to induce (the supplier of a rendered))
to agree to payment for the service
on a credit basis
using a credit or debit card
the accused knows to be stolen
So, if you were charged with this flavor of the crime, and everything were true, except the part about you "knowing" the card were stolen, you might have a good defense to the accusation.
You should also know that sometimes, often in fact, words that the legislature uses do not necessarily have their ordinary meaning. The legislature is allowed to define any word it wants any way that it wants. Sometimes, the legislature will specially define a common word and put that definition right there in the law itself and sometimes it will put a special definition in a separate section called "definitions". If the legislature doesn't define a word specially, then the definition is likely to be what would be considered its ordinary meaning. Sometimes, there is debate about how words should be interpreted and if the legislature offers no guidance, then it is up to Courts to decide how to interpret words. Sometimes, the legislature defines common words in very unexpected ways. The classic unexpected definition in New York criminal law is the definition of "sale" for purposes of criminal "sale" of a controlled substance to include "to give" meaning that no money need change hands to be guilty of that offense.
[FAILING TO PAY AT A RESTAURANT OR HOTEL - "Dine and Ditch" - very commonly charged]
2. With intent to avoid payment for restaurant services rendered, or for services rendered to him as a transient guest at a hotel, motel, inn, tourist cabin, rooming house or comparable establishment, he avoids or attempts to avoid such payment by unjustifiable failure or refusal to pay, by stealth, or by any misrepresentation of fact which he knows to be false. A person who fails or refuses to pay for such services is presumed to have intended to avoid payment therefor; or
[An interesting bit in this "flavor" is the last sentence, where the legislature added a PRESUMPTION into the law. In this case, the presumption is that if you fail or refuse to pay for the dinner or hotel stay, the law PRESUMES that you INTENDED to avoid payment. Presumptions like this exist throughout the criminal law in various forms, and they are meant to make it far easier for the Government to convict you than otherwise. Presumptions are considered legal because they are "permissive" which means that a jury is not required to use the presumption. Presumption are powerful because they make it super easy for the jury to find you guilty if do choose to use the presumption. At a trial where there is a so-called "permissive" presumption like this, the Judge will advise the jury about the presumption and their ability to use it to find the accused guilty just before the jury is asked to decide the case, and long after the lawyers have made their final arguments to the jury. So the presumption will be among the last things that the jury will hear about before being asked to decide the case, it they will be told about the presumption by the Judge. This is the power of the presumption.]
[Subway, Railroad, Taxi, and other Transportation Fare Evasion - very commonly charged]
3. With intent to obtain railroad, subway, bus, air, taxi or any other public transportation service without payment of the lawful charge therefor, or to avoid payment of the lawful charge for such transportation service which has been rendered to him, he obtains or attempts to obtain such service or avoids or attempts to avoid payment therefor by force, intimidation, stealth, deception or mechanical tampering, or by unjustifiable failure or refusal to pay; or
[Cable, Electric, other Utility or Telephone Service Failure to Pay]
4. With intent to avoid payment by himself or another person of the lawful charge for any telecommunications service, including, without limitation, cable television service, or any gas, steam, sewer, water, electrical, telegraph or telephone service which is provided for a charge or compensation, he obtains or attempts to obtain such service for himself or another person or avoids or attempts to avoid payment therefor by himself or another person by means of (a) tampering or making connection with the equipment of the supplier, whether by mechanical, electrical, acoustical or other means, or (b) offering for sale or otherwise making available, to anyone other than the provider of a telecommunications service for such service provider's own use in the provision of its service, any telecommunications decoder or descrambler, a principal function of which defeats a mechanism of electronic signal encryption, jamming or individually addressed switching imposed by the provider of any such telecommunications service to restrict the delivery of such service, or (c) any misrepresentation of fact which he knows to be false, or (d) any other artifice, trick, deception, code or device. For the purposes of this subdivision the telecommunications decoder or descrambler described in paragraph (b) above or the device described in paragraph (d) above shall not include any non-decoding and non-descrambling channel frequency converter or any television receiver type-accepted by the federal communications commission. In any prosecution under this subdivision, proof that telecommunications equipment, including, without limitation, any cable television converter, descrambler, or related equipment, has been tampered with or otherwise intentionally prevented from performing its functions of control of service delivery without the consent of the supplier of the service, or that telecommunications equipment, including, without limitation, any cable television converter, descrambler, receiver, or related equipment, has been connected to the equipment of the supplier of the service without the consent of the supplier of the service, shall be presumptive evidence that the resident to whom the service which is at the time being furnished by or through such equipment has, with intent to avoid payment by himself or another person for a prospective or already rendered service, created or caused to be created with reference to such equipment, the condition so existing. A person who tampers with such a device or equipment without the consent of the supplier of the service is presumed to do so with intent to avoid, or to enable another to avoid, payment for the service involved. In any prosecution under this subdivision, proof that any telecommunications decoder or descrambler, a principal function of which defeats a mechanism of electronic signal encryption, jamming or individually addressed switching imposed by the provider of any such telecommunications service to restrict the delivery of such service, has been offered for sale or otherwise made available by anyone other than the supplier of such service shall be presumptive evidence that the person offering such equipment for sale or otherwise making it available has, with intent to avoid payment by himself or another person of the lawful charge for such service, obtained or attempted to obtain such service for himself or another person or avoided or attempted to avoid payment therefor by himself or another person; or
[The above flavor is meant to target, among other things, people who fiddle with cable boxes to obtain more service than paid for, or to obtain service where none was supposed to exist, or to engage in activity that somehow obtains some sort of utility service one or or another to which they are not otherwise entitled. Again, this makes the attempt as good as the completed act.]
5. With intent to avoid payment by himself or another person of the lawful charge for any telephone service which is provided for a charge or compensation he (a) sells, offers for sale or otherwise makes available, without consent, an existing, canceled or revoked access device; or (b) uses, without consent, an existing, canceled or revoked access device; or (c) knowingly obtains any telecommunications service with fraudulent intent by use of an unauthorized, false, or fictitious name, identification, telephone number, or access device. For purposes of this subdivision access device means any telephone calling card number, credit card number, account number, mobile identification number, electronic serial number or personal identification number that can be used to obtain telephone service.
[Interesting in this flavor is how the legislature illustrates its power to define things as it sees fit. Notice above that "for purposes of this subdivision" (meaning paragraph 5 flavor) "access device" means any telephone calling card number (and other things) that "can be used to obtain telephone service."]
[Messing with Meters]
6. With intent to avoid payment by himself or another person for a prospective or already rendered service the charge or compensation for which is measured by a meter or other mechanical device, he tampers with such device or with other equipment related thereto, or in any manner attempts to prevent the meter or device from performing its measuring function, without the consent of the supplier of the service. In any prosecution under this subdivision, proof that a meter or related equipment has been tampered with or otherwise intentionally prevented from performing its measuring function without the consent of the supplier of the service shall be presumptive evidence that the person to whom the service which is at the time being furnished by or through such meter or related equipment has, with intent to avoid payment by himself or another person for a prospective or already rendered service, created or caused to be created with reference to such meter or related equipment, the condition so existing. A person who tampers with such a device or equipment without the consent of the supplier of the service is presumed to do so with intent to avoid, or to enable another to avoid, payment for the service involved; or
[In flavor #6, the "messing with meters" flavor, there are TWO presumptions. First, if the Government has proof that a meter has been tampered with at all, this is presumptive evidence that the beneficiary of the service is the person who messed with the meter. Second, a person who tampers with a meter device without the service supplier's consent is presumed to do it with the intent to avoid payment for the services. This means that the Government does not necessarily need to have proof that anyone specifically messed with the meter. Simply proving that the meter has been messed with, allows the jury to presume that the beneficiary messed with it.]
7. He knowingly accepts or receives the use and benefit of service, including gas, steam or electricity service, which should pass through a meter but has been diverted therefrom, or which has been prevented from being correctly registered by a meter provided therefor, or which has been diverted from the pipes, wires or conductors of the supplier thereof. In any prosecution under this subdivision proof that service has been intentionally diverted from passing through a meter, or has been intentionally prevented from being correctly registered by a meter provided therefor, or has been intentionally diverted from the pipes, wires or conductors of the supplier thereof, shall be presumptive evidence that the person who accepts or receives the use and benefit of such service has done so with knowledge of the condition so existing; or
[Tampering with Supply Equipment]
8. With intent to obtain, without the consent of the supplier thereof, gas, electricity, water, steam or telephone service, he tampers with any equipment designed to supply or to prevent the supply of such service either to the community in general or to particular premises; or
[Sneaking into Theatre, Movie, or Ski Lift]
9. With intent to avoid payment of the lawful charge for admission to any theatre or concert hall, or with intent to avoid payment of the lawful charge for admission to or use of a chair lift, gondola, rope-tow or similar mechanical device utilized in assisting skiers in transportation to a point of ski arrival or departure, he obtains or attempts to obtain such admission without payment of the lawful charge therefor.
[Misuse of Someone Else's Labor]
10. Obtaining or having control over labor in the employ of another person, or of business, commercial or industrial equipment or facilities of another person, knowing that he is not entitled to the use thereof, and with intent to derive a commercial or other substantial benefit for himself or a third person, he uses or diverts to the use of himself or a third person such labor, equipment or facilities.
[Obtaining Computer Access Network Service]
11. With intent to avoid payment by himself, herself, or another person of the lawful charge for use of any computer, computer service, or computer network which is provided for a charge or compensation he or she uses, causes to be used, accesses, or attempts to use or access a computer, computer service, or computer network and avoids or attempts to avoid payment therefor. In any prosecution under this subdivision proof that a person overcame or attempted to overcome any device or coding system a function of which is to prevent the unauthorized use of said computer or computer service shall be presumptive evidence of an intent to avoid payment for the computer or computer service.
[BUT WAIT - The last section of a criminal law is super important because it tells us how serious the offense is. Usually, all the different flavors of the same offense are the same level of seriousness, but in the case of service theft, the New York Legislature tells us (in the last paragraph below) that not all the flavors carry the same punishment. See comment below the actual text for a breakdown of what the legislature says.]
Theft of services is a class A misdemeanor, provided, however, that theft of cable television service as defined by the provisions of paragraphs (a), (c) and (d) of subdivision four of this section, and having a value not in excess of one hundred dollars by a person who has not been previously convicted of theft of services under subdivision four of this section is a violation, that theft of services under subdivision nine of this section by a person who has not been previously convicted of theft of services under subdivision nine of this section is a violation and provided further, however, that theft of services of any telephone service under paragraph (a) or (b) of subdivision five of this section having a value in excess of one thousand dollars or by a person who has been previously convicted within five years of theft of services under paragraph (a) of subdivision five of this section is a class E felony.
[So the general idea is that with a few exceptions, the assumption should be that any flavor of this offense is going to be an A misdemeanor. Misdemeanors are divided into A and B misdemeanors. The more common and more serious version is class A. A class A misdemeanor is punishable by up to one year in jail at Rikers Island. The likelihood of anyone actually serving one year in jail for any flavor of 160.15 in New York City is pretty close to non-existent except in extreme circumstances that it is almost impossible for me to imagine.
Reading on, however, the legislature tells us that three version of flavor #4 can be a "violation" level offense. A violation level offense is actually not considered a crime and could not give you a criminal record. You need to talk to your lawyer if you are charged with flavor #4 of 160.15 to determine whether your particular case might be a violation, because it gets a little more complicated.
Further, it seems flavor #9 (paragraph 9) is also a violation under certain circumstances, also worth inquiring of your lawyer about if you are charged with flavor #9.
And finally, one particular version of flavor #5 (paragraph 5) can actually be a class E felony offense. Whoa. That is a big deal. While an E felony offense is the lowest level felony, it is still a felony and being charged with a felony carries a payload of headaches and complications that need to be reviewed with your lawyer. While again, the likelihood of a non violent E felony case resulting in the maximum penalty available in New York City is next to non-existent, just so you know that maximum penalty is 1 1/3 to 4 years in state prison. That range is considered a single sentence and the first number is the minimum amount of time you would do before being eligible for parole. The 4 years, or rather what is left after you subtract what time you already did, is what you face upon violation of parole. Further, for a non-violent offense such as theft of services, you would likely be eligible for "shock incarceration" which could result in your release as early as 6 months.]
By Don A. Murray, Esq.
Don Murray has been exclusively practicing criminal defense in New York City for 27 years, has written extensively about the practice of criminal defense in New York City, and has consulted on several projects in the entertainment industry where expertise was required about New York City criminal defense practice. Most recently, Mr. Murray consulted on the set of the NBC miniseries, The Slap. For consultation regarding a pending criminal matter in New York City, please call or text Mr. Murray at 718-268-2171.