SPECIFIC NEW YORK OFFENSES
- Theft
- NY VTL §511(3)(a)(i) Aggravated Unlicensed Operation of Motor Vehicle
- Second Degree Attempted Assault is a Crime of Violence
- Robbery -- Second NYPL 160.10 & Third Degree NYPL 160.05
Theft
Theft & Intent to Permanently Deprive
A theft offense must include a permanent intent to deprive a victim of property which cannot be assumed.
The Board of Immigration Appeals has overruled its decision in Matter of Jurado, which assumed that retail theft in Pennsylvania inherently includes an intent to permanently deprive, finding it inconsistent with the categorical approach outlined by the Supreme Court in Mathis v. United States. The Board then concluded that Pennsylvania retail theft convictions criminalize less than permanent takings, and thus, under pre-Diaz LIzarraga precedent, they do not constitute crimes involving moral turpitude.
Matter of Bharatkumar Girishkumar THAKKER, 28 I&N Dec. 843 (BIA 2024)
(1) The assumption in Matter of Jurado that a retail theft offense involves an intent to permanently deprive a victim of their property is inconsistent with the categorical approach as currently articulated by the Supreme Court. Matter of Jurado, 24 I&N Dec. 29 (BIA 2006), aff'd sub. nom. Jurado‑Delgado v. Att'y Gen. of U.S., 498 F. App'x 107 (3d Cir. 2009), overruled in part.
The full text of Matter of Thakker can be found here:
https://www.justice.gov/d9/2024-09/4080.pdf
NY VTL §511(3)(a)(i) Aggravated Unlicensed Operation of Motor Vehicle
Aggravated Unlicensed Operation of Motor Vehicle in Violation of New York Vehicle and Traffic Law Section 511(3)(a)(i)
Matter of Vucetic, 28 I&N Dec. 276 (BIA 2021)
The offense of aggravated unlicensed operation of a motor vehicle in the first degree in violation of section 511(3)(a)(i) of the New York Vehicle and Traffic Law, which prohibits a person from driving under the influence of alcohol or drugs while knowing or having reason to know that his or her license is suspended, is categorically a crime involving moral turpitude. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), followed.
Second Degree Attempted Assault is a Crime of Violence
Attempted Assault 2nd Degree
In Violation of NYPL 120.05
The Second Circuit concluded that a conviction for attempted assault in the second degree is a crime of violence and therefore an aggravated felony. See United States v. Cooper, 23-6911 (2d Cir. March 14, 2025).
The Second Circuit has determined that a New York conviction for second degree attempted assault under NYPL 120.05(7) is a crime of violence because it requires physical force causing injury to another person. Given the similarity between the definition of a crime of violence for immigration and criminal sentencing purposes, this case will likely be treated as precedential for immigration purposes as well.
Full text of United States v. Cooper, 23-6911, (2d Cir. March 14, 2025) can be found here:
**Must update with citation once available.
Court's Reasoning Regarding Crime of Violence
Both this Court and the Supreme Court have made clear that the “physical force” required for an offense to be a crime of violence under the Guidelines is “force capable of causing physical pain or injury to another person.” United States v. Scott, 990 F.3d 94, 111 (2d Cir. 2021) (en banc); see Stokeling v. United States, 586 U.S. 73, 84 (2019) (“[T]he Court has repeated its holding that ‘physical force’ means ‘force capable of causing physical pain or injury.’” (citations omitted)).2 This is not a high standard to meet. Indeed, as the Supreme Court noted, “force as small as hitting, slapping, shoving, grabbing, pinching, biting, and hairpulling” all qualify as physical force because “none of those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury.” Stokeling, 586 U.S. at 85.
The New York Court of Appeals has made clear that N.Y.P.L. § 120.05(7) requires at least as much force as U.S.S.G. § 2K2.1(a). See, e.g., People v. Chiddick, 8 N.Y.3d 445, 448 (2007) (holding that “petty slaps, shoves, kicks[,] and the like” do not inflict “physical injury” as defined by the New York assault statutes (internal quotation marks omitted)); see also People v. Godfrey, 157 N.Y.S.3d 18, 19 (1st Dep’t 2021) (noting that “petty slaps, shoves, kicks and the like” do not amount to “physical injury”). Indeed, New York Penal Law section 10.00(9) defines “physical injury” as “impairment of physical condition or substantial pain.” We therefore see no world in which a person could be convicted of seconddegree attempted assault under section 120.05(7) without clearing the low hurdle for a crime of violence articulated by the Supreme Court in Stokeling. See 586 U.S.at 85.
For all these reasons, we hold that a violation of N.Y.P.L. § 120.05(7) is categorically a crime of violence as defined by section 2K2.1(a) of the Sentencing Guidelines.
Robbery -- Second NYPL 160.10 & Third Degree NYPL 160.05
Petit Larceny is Categorically a CIMT
Petit larceny in violation of section 155.25 of the New York Penal Law is categorically a Crime Involving Moral Turpitude. See Matter of Clement OBEYA, 26 I&N Dec. 856 (BIA 2016).
Third Degree Robbery is NOT a Crime of Violence
Third Degree Robbery, unlike the other degrees, does not require by law a minimum time in prison is because unlike the two “sister” offenses, PL 160.05 is not a statutorily defined “violent offense” pursuant to New York Penal Law 70.02.
Statutes
§ 160.10 Robbery in the second degree.
A person is guilty of robbery in the second degree when he forcibly steals property and when:
1. He is aided by another person actually present; or
2. In the course of the commission of the crime or of immediate flight
therefrom, he or another participant in the crime:
(a) Causes physical injury to any person who is not a participant in
the crime; or
(b) Displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm; or
3. The property consists of a motor vehicle, as defined in section one
hundred twenty-five of the vehicle and traffic law.
Robbery in the second degree is a class C felony.
§ 160.05 Robbery in the third degree.
A person is guilty of robbery in the third degree when he forcibly steals property.
Robbery in the third degree is a class D felony.