New York’s “Wholly Inconsistent” Shoplifting Standard: NY Case Law & Applicability to Your Criminal Defense

Whether you were arrested or issued a New York Desk Appearance Ticket (DAT) for Shoplifting pursuant to New York Penal Law sections 155.25 (Petit Larceny) or 165.40 (Criminal Possession of Stolen Property), the legal standard is the same. Regardless of the crime, police officers in New York City and throughout the state, must have probable cause to arrest you. If not, your criminal defense attorney or lawyer must file a motion for the dismissal and to request a Dunaway hearing (other hearings might be applicable as well). Beyond this basic legal right that you have to prevent unlawful arrests, there are other factors that should be addressed by your criminal defense attorney. The following is a brief analysis of one of such factor.

According to People v. Olivo, 52 N.Y.2d 309, 310 (1981), the Court of Appeals, New York’s highest court, has found that in order to sustain a conviction for shoplifting, one’s actions must be “wholly inconsistent with the rights of the owner.” Taken further, the Court of Appeals found that “[i]f a customer exercises dominion and control wholly inconsistent with the continued rights of the owner, and other elements of the crime are present, a larceny has occurred.”

Although the above case seems relatively straight forward, there numerous ways to interpret that ruling. For example, what is “wholly inconsistent?” Would placing two sweaters in your large purse be “wholly inconsistent?” What about placing those same sweaters inside your jacket? continuing with the “what if game,” what if the store provides bags or carts to carry items before you purchase them and what if they do not? Does this alter whether placing sweaters or even food from a supermarket in your personal bag or jacket is “wholly inconsistent?” If you were still shopping when you were stopped would the case be different then if you walked passed a register, but you had not exited the store?

More analysis after the jump…
In the Olivo case, the Court of Appeals affirmed the Appellate Term’s decision in three separate cases finding that a larceny was perpetrated. In the first case, the defendant was in a hardware store where he looked around furtively. The defendant crouched and then placed a set of wrenches under his clothing. The defendant looked around again, walked passed numerous registers without paying and was stopped a few feet from the exit. The defendant denied he possessed the wrenches. Ultimately, the security officers removed the wrench form his person. In the second case, People v. Gasparik, the defendant was in a department store. Security guards observed him tear off the price tag as well as the security device. The defendant placed the tag and the security device in another jacket. The defendant took his own jacket down on a table and put on the new jacket from the store as if it was his own. The defendant then walked passed numerous cash registers toward the exit. The defendant stated in substance that he was looking for a cashier who had a short line.

The third case, People v. Spatzier, involved a defendant who entered a bookstore with an attaché case. The defendant was observed looking up and down the isle and place the book inside his attaché case. When confronted, a fight ensued and the book fell from the case. According to the Court of Appeals, “[i]n these circumstances, given the manner in which the defendant concealed the book and his suspicious behavior” the evidence was sufficient to establish the larceny. Id at 320.

Whether or not the above cases will assist your criminal defense attorney in successfully dismissing the charges against you, is a cases by case analysis. Regardless of the type of criminal defense you determine is best and the means by which you implement it, it is important that you do not wait too long as you may compound an already serious situation. Don’t let a shoplifting arrest damage your career and future. Educate yourself on the law, ask the important questions and take action.

Crotty Saland PC is a New York criminal defense firm. Representing clients for theft offenses throughout the New York City metropolitan area, Crotty Saland PC was founded by two former Manhattan prosecutors who have nearly 20 years of combined criminal experience.

Updated: