As a New York criminal defense attorney / lawyer and a former Manhattan prosecutor, I have heard both defendants and clients often assert the same defense when they are either arrested or issued a New York Desk Appearance Ticket for shoplifting (New York Penal Law 155.25 or 165.40) in Manhattan, Brooklyn or anywhere else in New York City. This argument usually centers around the fact that when they were arrested or stopped they had yet to leave the store. In other words, individuals charged with shoplifting will argue that their arrest was not merely premature, but baseless.
Criminal cases can essentially be broken down to issues of fact and issues of law. An issue of fact might be whether or not you passed by a cash register, where the items were allegedly concealed or what you said to security or the police when you were stopped. An issue of law is whether or not a complaint drafted against you is facially sufficient or whether that statement you made to the police was taken in violation of your rights. Regardless of the issue, whether it is fact or law, arguments made with prosecutors often follow.
Addressing the issue of your location when you were arrested can be viewed as an issue of fact and law. Factually, your conduct is critical to the legal analysis. As noted above, did you pass the cash register? Were you in the vestibule area? Where was the property allegedly concealed and what was it (a pair of shorts you put in your bag or 15 pairs of socks you stuffed into your purse)? Having noted your alleged conduct, how, if at all, does this comply with the legal decisions regarding one’s non criminal conduct and shoplifting in New York. This is where the legal analysis kicks in.
A central case that address the law in the realm of shoplifting is People v. Olivo, 52 N.Y.2d 309 (1981). What the Court of Appeals looked at was whether or not one’s conduct was consistent or inconsistent with the rights of the particular store owner and beyond the scope of how a particular shopper would behave. Would a shopper walk past a register after putting multiple items in a brief case? Would a shopper, even one who had not left the building, place items in his or her waist band or under a shirt? Another question is where and how far was the property taken before one was stopped. As noted by a lower court, the movement and transfer of property can be slight and brief. See People v. Rembert, 149 Misc. 2d 16 (NY Cty Sup. Ct. 1990). Again, factual allegations that need to be “fleshed out” so that they may be applied to issues of law.
Although the above facts were completely hypothetical, how does your conduct fall within the law? Were your actions consistent or inconsistent with the rights of a store owner and how are you alleged to have concealed the property? Where were you when you were arrested and what did you say when stopped? These, are all base level questions. Even assuming your actions established probable cause for your arrest and the prosecution can prove your guilt beyond a reasonable doubt, what factors can you offer to mitigate your conduct and get the best possible disposition from the case?
Whatever your conduct is alleged to be, but even more so if the value of the alleged stolen property is multiple hundreds of dollars as opposed to less than one hundred dollars, sit down with a New York criminal defense attorney experienced in shoplifting cases and Desk Appearance Tickets. Formulate a plan of attack and set that plan into motion. While you may think that your conduct is insignificant and you were merely issued a Desk Appearance Ticket, the reality of the situation is that this belief couldn’t be further from the truth.
For further information on New York shoplifting laws (NY PL 155.25 and NY PL 165.40) as well as New York Desk Appearance Tickets, please follow the highlighted link. Additional information on New York Theft Crimes and Grand Larceny in New York may be found on the respective links. To read about recent legal decisions, various statutes in the New York Penal Law and cases in the news, please go to Saland Law PC’s New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com.
Prior to starting the criminal practice, the New York criminal defense lawyers at Saland Law PC served as Manhattan prosecutors. Saland Law PC represents clients throughout the New York City region in all theft related crimes.