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Shoplifting Arrests in New York While Inside a Retail Store: A Review of the New York Legal Standard

Its a common theme or perceived defense to shoplifting in New York City that routinely rears its head from those accused of shoplifting and attorneys not necessarily familiar with how to defend a shoplifting arrest. “I didn’t leave the store so how can I be guilty of a crime involving theft or stealing? How do the crimes of New York Penal Law 155.25 or New York Penal Law 165.40 apply to me?” Even more common than the question, the answer is always the same. Yes, an experienced shoplifting attorney and criminal lawyer knows that each case is fact or evidence specific, but you can be arrested and charged with the shoplifting crimes of PL 155.25 or PL 165.40 without taking a step outside the walls of the retail store where you were arrested.

A recent decision, and one I am confident your criminal attorney or New York shoplifting lawyer or should have read, that addresses this precise issue is People v. Bailey, 2013 NY Slip Op 51021 – NY: Appellate Term, 1st Dept. 2013. In Bailey, the defendant moved to dismiss a complaint (an information) for facial sufficiency because the defendant believed that the conduct described in that complaint did not satisfy the elements and establish the minimum criteria for violating the Petit Larceny and Fifth Degree Criminal Possession of Stolen Property statutes. There, the People drafted the accusatory instrument stating in substance that the defendant “removed six pairs of earrings from a display, ‘conceal[ed]’ them inside her jacket sleeve, and ‘walk[ed] past more than one open register and move[d] to another floor in the store in possession of the property and without paying for it.'”

In finding that the complaint was facially sufficient at this stage in the process (remember, the standard is not “beyond a reasonable doubt” as it is at trial), the Appellate Court was clear in its analysis:

“Given the number and nature of the items allegedly concealed by defendant, the store employee’s sworn allegations were sufficient for pleading purposes to satisfy the asportation element of petit larceny and the intent elements of both theft-related offenses (see People v Gasparik [People v Olivo], 52 NY2d 309, 320, particularly n 8). Where asportation of merchandise is involved, the item(s) ‘need not be completely removed from the premises as long as there has been some physical movement and an exercise of dominion and control that it inconsistent with the owner’s rights’ (People v Jensen, 86 NY2d 248, 255 [Titone, J. dissenting] citing Olivo, 52 NY2d 309), factors which were established prima facie in the information filed herein by the People.”

Obviously, as I mentioned above, the analysis regarding whether your conduct in this store is criminal is a case and evidence specific determination. However, the cases, laws and rules cited above are critical in the decision making process (for further reading, this blog as well as the NewYorkCriminalLawyerBlog.Com have extensive information). Never be confused or under the false impression that you must step out of the store or remove security features for your conduct to rise to the level of criminal activity.

To read more about New York’s theft and larceny laws including shoplifting, review the blogs and websites linked below or the content linked above. A New York criminal defense firm representing clients in Petit Larceny, Grand Larceny and Criminal Possession of Stolen property investigations, arrests and trials, the founding New York criminal lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorneys Office prior to establishing the law practice.

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