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My New York Shoplifting Case Has to be Dismissed Because I didn’t Exit the Store: Legal Fact and Fiction

On of the more common misunderstandings of New York shoplifting law (there is not actual statute such as this, but it is a clear means to describe similar offenses), is that an accused must leave a store to be arrested and ultimately convicted for Petit Larceny, Grand Larceny or Criminal Possession of Stolen Property. Irrespective of whether an offenses is a misdemeanor PL 155.25 or a felony PL 155.30, the evidence of the wrongful taking must be legally sufficient on a complaint and beyond a reasonable doubt at trial. While New York law is very clear that possession inconsistent with the rights of the property owner is a telling factor when determining if a shoplifting larceny occurred, the analysis is very fact specific and one which you and your criminal attorney or shoplifting lawyer must examine. That said, however, can a defendant successfully challenge an arrest in New York for Petit Larceny or Fifth Degree Criminal Possession of Stolen Property if a complaint fails to set forth facts that the accused walked past registers, checkout lines, etc., as part of his or her theft from a store? Will the failure by the prosecution to provide this information be fatal to the District Attorney’s case?

In People v. Bosticco, 2016 NY Slip Op 51169(U), (2nd Dept.), the defendant had pleaded guilty to Petit Larceny after being charged with both PL 155.25 and PL 165.40. It was alleged that the defendant was caught shoplifting by a manager who was watching him on surveillance. Fairly simply, the complaint stated that the manager observed the defendant place clothes under his shirt and walk out of the store without paying for the items. It was there that the manager confronted and retrieved the clothing from the defendant.

Although the defendant pleaded guilty, he did appeal his conviction and, among a few arguments, asserted that because there was hearsay in the complaint, his plea was not valid. More specifically, “because the store manager never stated, in his supporting deposition, that defendant had passed ‘all final points of sale and exit[ed] the store without paying for [the] merchandise’ those facts, asserted in the accusatory instrument by the complainant police officer, remained hearsay.” Despite what could have potentially been a good argument, the Court recognized that upon pleading the defendant waived the right to challenge the hearsay issue. Right or wrong, the Court did not then address the strength of this argument one way or another.

Assuming the court did examine this issue, it would still not likely have resulted in the favorable outcome sought by the defendant. Without going into great detail as this has been addressed both in this blog as well as Crotty Saland PC’s NewYorkCriminalLawyerBlog.Com, what must be reflected in an accusatory instrument to sufficiently establish a crime of PL 155.25 or PL 165.40 as it relates to a shoplifting arrest in New York?

In People v. Olivo, 52 N.Y.2d 309, 310 (1981), the New York Court of Appeals implemented a standard or rule that all lower courts in New York must follow when asked to examine shoplifting cases. Whether or not an accused leaves a store, is in the vestibule area, passes one of many registers or is anywhere in between, he or she is not guaranteed a “pass” for shoplifting due to the location of arrest. Instead, “[i]f a customer exercises dominion and control wholly inconsistent with the continued rights of the owner, and other elements of the crime are present, a larceny has occurred.”

We can all likely examine the facts or evidence in any case to see if the a crime is minimally and legally set forth in a complaint even if the prosecution may face difficulty later when trying to prove the case beyond a reasonable doubt. Here, however, because the defendant placed the clothing under his shirt, the manager said he didnt have permission to take it, and the defendant ultimately left the store, the court likely would not have found for the defendant as the added language he suggests was hearsay would not have overturned all of the other factors.

Don’t be naive enough to think because you didn’t leave the store, a crime of shoplifting has not occurred. Simply, that is not how New York law works. Educate yourself. Read through this blog and the websites and blogs listed beneath this article.

A criminal defense firm founded by two former Manhattan Assistant District Attorneys, the New York theft and shoplifting lawyers at Crotty Saland PC serve clients throughout the New York City region in all stages of the criminal process from NYC Desk Appearance Tickets to indictments and trials.

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