Legal Analysis of Shoplifting Arrests in New York City: Further Information on Getting Arrested without Exiting a Store

One of the first things you may have said to your criminal lawyer after getting a Desk Appearance Ticket for shoplifting in New York City is something along the line of “I didn’t even walk out of the store and the police arrested me for shoplifting! How can that be?!” While this is a fact based question and answer (where were you specifically, where was the property concealed if at all, did you bypass the cash register, etc.), there is also a purely legal view of this question and answer as well.

Because merely an arrest for shoplifting (New York Penal Law 155.25 and New York Penal Law 165.40) can have grave consequences on the careers of professionals such as teachers, financial services employees, lawyers and doctors, it is imperative that your counsel take the time to explain how it is legally possible to be convicted of shoplifting without ever stepping foot out of the store.

One of the key cases that guide shoplifting prosecutions in New York City as well as the rest of New York State is People v. Olivo, 52 NY2d 309 (1981). The key to Olivo was that it established the rule that one’s actions involving the property allegedly stolen must be “wholly inconsistent” with the rights of the store owner. Since Olivo, many cases have popped up that address how the conduct in question is “wholly inconsistent,” and therefore, in violation of the shoplifting laws of New York. Not necessarily an easy answer, the following two recent court cases may help further clarify a relatively gray area.

In People v. Haimovici, 2011 NY Slip Op 50230, NY: Appellate Term, 2nd Dept. 2011, the court cited examples of conduct that might raise to the level necessary to establish the intent to shoplift. These examples included the “concealment of merchandise while in close proximity to or moving towards an exit, possession of a known shoplifting device, removal of a sensor device or price tag, switching price tags and switching personal property with merchandise.” Furthermore, In People v. Stapkowitz, 40 AD 3d 435 (1st Dept. 2007), the Appellate Division found that a conviction for shoplifting would stand where the accused, without any assistance from store staff, was alleged to have stood on a table and removed a chandelier from a fifth-floor ceiling. The defendant then placed the chandelier in a bag, and concocted a story by lying to a salesperson that he already paid for the item. Afterwards, the defendant went down multiple levels and down to the first floor. Once there, the defendant passed multiple cash registers (without paying of course) and ultimately fled after security stopped him. “Wholly inconsistent” with the rights of a store owner? Clearly, the New York appellate level court believed so.

Whether your conduct inside of a store has enough factors to establish your intent beyond a reasonable doubt is on the prosecution to prove. However, having some insight into prior legal decisions is of great value when assessing the merits of your own case. The shoplifting legal decisions mentioned above will give you some guidance in that arena.

For a wealth of information on shoplifting laws, crimes and statutes as well as information on New York City Desk Appearance Tickets, feel free to review the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) or the Saland Law PC website.

Representing those accused of shoplifting crimes throughout the New York City area, the two founding criminal lawyers at Saland Law PC previously served as prosecutors in the New York County District Attorneys Office for more than a combined thirteen years.

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