Wednesday, December 21, 2016

Felony Charges Against NY Antiquities Dealer Begins Cultural Property Prosecution in State Court

New York antiquities dealer Nancy Wiener has been charged with three felony counts by the Manhattan District Attorney's Office. A pre-arraignment deposition was given today, and bail was set at a combination of $25,000 bond plus $25,000 cash.

A charge begins the criminal court process. It is not a finding of guilt. A defendant is presumed innocent unless proven guilty beyond a reasonable doubt.

In March, Homeland Security Investigations (HSI) in partnership with the Manhattan District Attorney’s Office seized Asian artifacts from the Nancy Weiner’s Gallery on Manhattan’s East Side during Asia Week, one of the city's leading art and cultural events. HSI and another Immigration and Customs Enforcement Agency, US Customs and Border Protection, had been working on their long-running investigation dubbed Operation Hidden Idol ahead of Asia Week, confiscating a number of artifacts originating from Asia that authorities concluded were illegal.

The Chasing Aphrodite blog reports the factual allegations of the Wiener case. CHL will offer a thumbnail sketch of the law based on publicly available records published by the New York State Unified Court System.

Wiener faces three felony offenses. They include
  1. Criminal Possession of Stolen Property in First Degree - NY PL § 165.54
  2. Conspiracy in the Fourth Degree - NY PL § 105.10
  3. Conspiracy in the Second Degree - NY PL § 165.52
The most serious charge is criminal possession of stolen property (CPSP) in the first degree. The statute recites that “a person is guilty of criminal possession of stolen property in the first degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner, and when the value of the property exceeds one million dollars.” The offense is punishable by up to 25 years in prison.

Readers of the CHL blog know that state law prosecutions of cultural property dealers have certain advantages. In New York, there is the presumption described in NY PL § 165.55 that “a person in the business of buying, selling or otherwise dealing in property who possesses stolen property is presumed to know that such property was stolen if he obtained it without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess it.”

Moreover, there is no defense that the person who actually stole the property may not have been identified or convicted; no defense that the charged defendant had no part in the actual theft; and no defense that the theft may have happened outside the boundaries of New York.

Interestingly, the incident date of one or more of the charges against Wiener is December 20, 1999, according to court records. A crime that occurred 17 years ago may present legal and factual challenges to the prosecution.

The case is docketed at 2016NY073118.

Errata 12/23/16: State court records show that Wiener was indicted. CHL now has obtained the prosecution's charging document. It is a complaint, not an indictment, and this blog post has been updated to reflect this current information.

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