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Overzealous & Eager Store Security: When Your Innocent Acts Lead to a Wrongful Shoplifting Arrest in NY

Shoplifting arrests throughout New York City are relatively common events. Sadly, whether it is at Bergdorf Goodman in Manhattan, Century 21 in Queens or any other department store in Brooklyn, often time an overzealous or moderately experienced store security officer is all to eager to assume you were shoplifting. Even worse, they are ready to bully you into signing paperwork they will shove in your face without explanation. Maybe it is because there are bonuses paid by employers or built in incentives, but whatever the reason there have been countless people accused of and arrested for shoplifting in New York who committed no crime at all. Not only have I witnessed this as a New York criminal defense attorney who routinely represents clients in shoplifting arrests, but as a Manhattan Assistant District Attorney where I prosecuted shoplifters for both felony and misdemeanor offenses.

A case that drives this point home is People v. Lioudmila Haimovici. In Haimovici, it was alleged that the defendant stole from a Macy’s Department Store. More specifically, Haimovici was charged with and arrested for violating New York Penal Law 155.25, Petit Larceny. An A misdemeanor, NY PL 155.25 is a serious crime that carries a sentence of as much as one year in a county jail (hello, Rikers!). It was alleged that the defendant brought unpaid store merchandise into a restroom where he was then stopped immediately after exiting a stall. After a bench trial (also called a “judge trial”), the court found the defendant guilty of Attempted Petit Larceny, New York Penal Law 110/155.25.

In reversing the defendant’s conviction for Attempted Petit Larceny, the Appellate Court first recognized that the People (prosecution) must establish that the defendant possessed the specific intent to perpetrate shoplifting (actually Petit Larceny since there is no Penal Law crime of “shoplifting”). This intent may be inferred from circumstances surrounding that person’s actions (see People v. Olivo, 52 NY2d 309 (1981) addressed in our NewYorkCriminalLawyerBlog.Com for a review the case). These factors may include “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.” In the instant case, none of these factors existed. Instead, a person entered a bathroom with merchandise that had not been purchased and that person was apprehended and arrested for a crime before exiting the bathroom. Clearly, even if true, this evidence was not sufficient to establish beyond a reasonable doubt that Haimovici committed or attempted to commit Petit Larceny. Instead, what this case “proved” is that all too often, store security officers jump to conclusions of guilt before taking the time to analyze and assess your conduct and actions. Further, it is a very real example of how a shoplifting arrest can unravel one’s life.

Whether you are arrested for shoplifting and accused of Petit Larceny or Criminal Possession of a Stolen Property in the Fifth Degree (New York Penal Law 165.40), exploring every defense, evidentiary, factual, procedural and those based in mitigation, is a must. Your shoplifting lawyer or criminal attorney should not merely assume you actions are consistent with guilt. Where were you stopped? Where was the property? What did you say? Identifying your defense and reviewing all the factors may make a difference between “guilt” and “innocence.” This certainly was lost on Haimovici even if prosecutors could not see they were prosecuting an innocent person.

To learn all about the crimes of NY PL 165.40, NY PL 155.25 as well as the felony shoplifting crimes of Grand Larceny and Criminal Possession of Stolen Property, a review of this blog as well as the NewYorkCriminalLawyerBlog.Com, CrottySaland.Com and NewYorkTheftAndLarcenyLawyers.Com (all linked below) will reveal a tremendous amount of information including statute and cases analysis.

A New York criminal defense firm established by two former Manhattan prosecutors, the New York criminal defense attorneys at Crotty Saland represent clients in all types and degrees of shoplifting arrests throughout New York City and many suburban counties.

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