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Is Asportation (the Moving / Removing of Property) a Necessary Element of a New York Petit Larceny or Grand Larceny Shoplifting Arrest?

If you take a skirt, shoes or even groceries without paying from H & M, Saks Fifth Avenue or Whole Foods respectively, well, then, you must have committed a theft. Clearly, if you walked out of the store concealing the property or just without paying you are going to get arrested for Petit Larceny or Criminal Possession of Stolen Property, right? Well, what about if you never leave the store? What if the store security guard at Macys or Century 21 just tries to stop you and have you arrested before you ever even approached the exit? The police have come, you are embarrassed and now to make matters worse, you were given a Desk Appearance Ticket or DAT. Simply put, is removing the property from the store a necessary element of either Petit Larceny (New York Penal Law 155.25) or Criminal Possession of Stolen Property in the Fifth Degree (New York Penal Law 165.40)? And the answer is…

Asportation is the general concept of moving property from one place to another. In the context of NY PL 155.25 cases involving shoplifting, for example, this asportation idea is often misunderstood by those who are not criminal defense attorneys (that would be the vast majority of people). To better understand this concept, as well as to answer the question posed in the first paragraph, let’s review a relatively recent decision out of Westchester County.

In People v. Doreen Hye, 11-0312, NYLJ 1202535252217, at *1 (City, WE, Decided December 5, 2011), an accused shoplifter sought dismissal of her criminal case on two grounds. The one relevant to this blog entry was that there was a lack of asportation (the removing or moving of property). Before leaving the store, the defendant placed over two thousand dollars worth of property into a cardboard box, The cardboard box originally contained an item valued at only $36.90. The defendant paid for what appeared to be an item worth only $36.90, but instead was a box containing much more. Before exiting, the defendant was stopped by security and ultimately arrested.

Hye’s counsel argued that if the defendant never left the store with the property and if asportation is part of a shoplifting crime pursuant to NY PL 155.25, Petit Larceny, then the case must be dismissed. While the attorney for the alleged shoplifter addressed an interesting point (I am often asked, “but I did not leave store X, how can the police arrest me?”), the court firmly and directly rejected it. Citing People v. Olivo, a case analyzed in our sister blog at NewYorkCriminalLawyerBlog.Com, the court found that there is no statutory requirement of asportation for the crime of larceny. Taking it one step further, the court stated that “[t]he fact of whether or not the defendant needs to physically leave the store to satisfy the elements of Petit Larceny is a factual issue to be determined at trial.” In such a case, as addressed in Olivo, the issue is whether or not the alleged shoplifter possessed the property in manner wholly inconsistent with the rights of the property or store owner. As such, while asportation may be a factor in determining whether or not one’s actions where wholly inconsistent with the rights of the property owner, it is not essential.

Although stashing thousands of dollars worth of property in a box for an item worth less than $50 and then only paying that nominal amount is arguably a common sense and clear example of theft, most cases are not so obvious. Maybe you were talking on the phone and placed the linens in your purse. Maybe the store does not provide shopping carts or you decided to use your backpack. Is that “wholly inconsistent?” Obviously, each case, allegation, DAT and arrest for shoplifting – NY PL 155.25 or NY PL 165.40 – involves a unique set of facts. Whether you have a strong argument in your favor or you decide the best defense is just to mitigate your conduct, do yourself a favor. Speak with your criminal lawyer. Determine what cases – Hye, Olivo or any other relevant decision – can be used to fortify your defense and move forward to put that defense into action.

To learn more about New York shoplifting crimes as well as other theft and larceny laws, review the respective links above and follow the links below. Not only do the NewYorkTheftAndLarcenyLawyers.Com website and blog contain a significant amount legal analysis, but a search for information on these crimes at CrottySaland.Com and the NewYorkCriminalLawyerBlog.Com will provide much more.

Crotty Saland PC is a New York criminal defense firm that has successfully represented clients in shoplifting cases involving thefts below $100 to those in the multiple thousands of dollars. While each case is unique and prior results cannot guarantee future outcomes, the New York criminal defense attorneys and former Manhattan prosecutors at Crotty Saland PC diligently represent clients in New York City and many of the surrounding suburbs.

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