NY Criminal Defense Law Update: New Court Decision May Help Those Arrested for Shoplifting (Petit Larceny – 155.25) in New York City

Whether you are arrested and charged with Petit Larceny (NY Penal Law 155.25) or Criminal Possession of Stolen Property (NY Penal Law 165.40) for shoplifting, you need to consult with a New York criminal defense attorney about People v. Lai Lee. It does not matter if you have been issued a Desk Appearance Ticket (DAT) or you have already been arraigned by a judge. Moreover, it does not matter where in New York City your case is pending from Manhattan Criminal Court at 100 Centre Street to Brooklyn Criminal Court at 120 Schermerhorn Street. What matters is that you put yourself in the best position possible to protect your rights and integrity by consulting with an experienced criminal defense lawyer about your case and whether certain legal decisions, such as ruling in People v. Lai Lee, may be used in your defense.

In a recent decision dated July 2, 2009, a Manhattan Criminal Court judge dismissed the shoplifting, Petit Larceny and Criminal Possession of Stolen Property charges that the defendant faced. The complaint alleged that a store investigator observed the defendant remove a handbag, tights and other clothing by “placing said items inside the defendant’s bag.” The defendant then walked past multiple open registers and moved to another floor of the store without paying for the items. The defendant was stopped and investigator recovered just under $1000 worth of clothing from the defendant’s handbag.

The defendant argued that a description of the defendant’s handbag was necessary to establish concealment. Moreover, the defendant asserted that moving floors and around the store “…fail[ed] to support that she exercised dominion and control wholly inconsistent with the continued rights of the owner, inasmuch as, the alleged facts fail to establish larcenous conduct supporting the allegation that she did not intend to pay for the items, such as her walking towards the exit or other conduct inconsistent with the continued rights of the owner.”

Further analysis after the jump…
Citing People v. Parrett, 90 Misc. 2d 541 (Dist Ct Nassau Co 1977), the defendant asserted that the complaint did not support the argument she tried to deprive the owner of the property. In Parrot, similar charges where dismissed after the defendant was stopped on an escalator after leaving the the main floor of a department store without making a payment. In that case, the court held that there was no larceny because the defendant had not left the premises and there was not proof of the defendant’s intent to deprive the owner of the property.

The defendant in Lai Lee also cited People v. Olivio, 52 NY2d 309 (1981). NY’s highest court found that one does not have to leave a store to establish Petit Larceny as long as the defendant’s actions and possession of the property are “wholly inconsistent with the rights of the owner and other elements of the crime are present.” Instead, the Court of Appeals set forth numerous factors that the lower courts should analyze. These factors, according to Criminal Court Judge Whiten’s interpretation of Olivio, are:

“(1) whether the defendant conceals the merchandise in a way deemed an exercise of dominion and control inconsistent with the owner’s continued rights, (2) whether there is evidence of larcenous behavior, (3) the proximity to or movement towards one of the exits, (4) possession of secreted goods a few steps from the door or moving in that direction, and (5) possession of a known shoplifting device actually used to conceal merchandise, such as specially designed outer garment or a false bottom carrying case.”

In ultimately dismissing the charges, Judge Whiten further noted (warning in advance…this is a big cut and paste job!):

“It is a sad commentary on our merchandising structure that some large store owners deem it necessary to sequester patrons by floor, requiring that transactions be completed on one floor before traveling to a second floor. These retailers seem oblivious to the clear inconvenience occasioned by causing visits to multiple checkout lines on multiple floors of an establishment where desired accessorizing apparel are distributed throughout the many floors of the store.”

“This hyper security, which complicates intra-store commerce also presents challenges to the store owner’s related claims in a charged crime such as Petit Larceny. The question of when a ‘taking’ has occurred is a primary consideration in evaluating the facial sufficiency of claims supported by non-specific behavior.”

“The German novelist, poet and scientist, Johann Wolfgang von Goethe (1749-1832) wrote ‘Behavior is a mirror in which every one displays his image.’ The image or behavior of a defendant who does not attempt to leave store premises or conceal merchandise in a manner which exercises dominion and control to the exclusion of the owner creates in the first instance, an unacceptable ambiguity when only non-specific behavior is alleged, which does not on it’s face rise to the level of a ‘taking.'”

“If such behavior does not on it’s face rise to the level of a ‘taking’ then a defendant’s insufficiency argument must be seriously considered.”

“Applying the Olivio factors to the present case, the court finds the allegations fail to provide sufficient facts to support that the defendant exercised dominion and control inconsistent with the owner’s continued rights by placing the merchandise in a bag. Other than the accusation that the defendant placed items in a bag, the allegations fail to provide some other conduct to support the claim that defendant’s actions were consistent with that of a shoplifter. (See, Olivio at 319). As stated in Olivio, a shoplifter, unlike customers with implied consent to possess merchandise while shopping, treats merchandise in a manner inconsistent with the implied rights granted to consumers, so much so that the unusual behavior by the defendant would allow the trier of facts to find a taking. (Olivio at 318, see generally, People v. Day, 280 AD 253, 254 [3rd Dept. 1952]; [Stating that a ‘self-serve store invites the customer both to come on the premises and to take physical possession of merchandise…’]). Although, the items were placed in a ‘bag’ dominion and control is not established since the placement of the merchandise in a bag is not by definition ‘concealment.’ The allegations fail to allege facts, such as the description of the bag or that the security tags were removed, that support the items were concealed or detached from the owner. (See, People v. Alamo, supra, at 457-458); [Stating that mere movement of an item merely tends to support the idea of control and “not necessarily the actions needed to gain possession and control…’]).”

Obviously, Judge Whiten thoroughly analyzed the facts of this shoplifting case and applied the applicable law to render his decision. Another Criminal Court Judge may have decided differently. Moreover, this case is not controlling on other courts in New York City. That being said, it is a critical case that your criminal defense attorney should cite in your defense if your alleged conduct is similar to that described here.

Whatever your conduct, the former Manhattan prosecutors and criminal defense lawyers at Crotty Saland PC have the experience, knowledge and tenacity to work with you to implement the strongest defense of your shoplifting case.

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