Fraud arrests are embarrassing. Theft arrests are compromising. Larceny arrests are stigmatizing. Felony arrests in New York? Those can land you in prison. Misdemeanors? By Desk Appearance Ticket or full processing in Central Booking, there is potential for incarceration too. Whether it is a shoplifting arrest or DAT for violating the Petit Larceny statute of New York Penal Law 155.25 or Fifth Degree Criminal Possession of Stolen Property Statute of New York Penal Law 165.40, a fake identification arrest for violating the Third Degree Criminal Possession of a Forged Instrument statute of New York Penal Law 170.20, a failure to pay a cab fare arrest for violating New York Penal Law 165.15, or any other crime involving Forgery, Falsifying Business Records, Theft of Services, Scheme to Defraud or Grand Larceny, if you are regulated through FINRA or FDIC, the ramifications can be a “game changer” to your career and livelihood. While you can potentially avoid reporting certain misdemeanor crimes on your Form U4, if you are charged with any felony (even if it is later reduced or resolved in a non-criminal manner) or convicted of the same, you will have to answer for your alleged actions. Even if the offense you are accused if is merely a misdemeanor (“merely” is a relative term as New York does not expunge criminal convictions for these crimes) and the offense involves fraud, forgery, wrongful taking of property or even false statements or omissions, you will be required to report the alleged infraction. This blog entry will not address the substance and definitions of the above crimes (that can be found throughout this blog and the New-York-Lawyers.org website), but reporting of these arrests and convictions on your U4 and consequences associated with FINRA regulations and those involving FDIC insured banks.
If there is such a “good” in crimes and prosecutions, arrests and accusations for shoplifting often result in the issuance of a Desk Appearance Ticket (DAT) in lieu of a person being processed through Central Booking. The “bad,” however, is that shoplifting arrests for the crimes of Petit Larceny, New York Penal Law 155.25, and Criminal Possession of Stolen Property in the Fifth Degree, New York Penal Law 165.40, are so routine that prosecutors, judges and even many inexperienced criminal defense attorneys do not blink an eye when examining an accusatory information to determine its viability and sufficiency. That is not to say these people are lazy by any means, but fatigue of seeing the same boilerplate language leads to poor results. Fortunately for one defendant, the examination of the complaint against her led to a judge dismissing the charges of Petit Larceny after the court determined there was no nexus between her actions and that of an unapprehended other individual who attempted to leave the store with stolen property. This blog entry will address the court’s decision and look at the overall value and importance of the ruling in the realm of arrests for PL 155.25 and PL 165.40.
Petit Larceny, New York Penal Law 155.25, is one of the most common theft crimes charged in New York, prosecuted by Assistant District Attorneys, and defended by New York criminal lawyers. Like its sister offense of Criminal Possession of Stolen Property in the Fifth Degree, New York Penal Law 165.40, this misdemeanor “shoplifting” crime is one that prosecutors can very easily draft in an accusatory instrument (called a criminal court complaint or information). In fact, in New York City’s boroughs of Manhattan, Brooklyn and Queens, there is fairly boilerplate language that is found in most complaints. Of grave concern to criminal defense attorneys, however, is whether or not the boilerplate language that is plugged into these complaints is legally sufficient and not conlusory (are there enough factual allegations and not mere conclusory statements). Whether an accused finds himself or herself before a judge during an arraignment by way of Desk Appearance Ticket (commonly called a DAT or Appearance Ticket) or after spending 24 hours in the infamous Tombs should the information be legally insufficient an attorney can file a motion for dismissal.
It certainly is not used in the everyday lingo of a non-lawyer and rarely used by those who are practicing attorneys, but asportation is a term that a New York criminal defense attorney or New York theft lawyer should be keenly aware of. More specifically, the importance of this term to a New York shoplifting defense attorney and an accused shoplifter cannot be understated. After all, if you are convicted of Petit Larceny (NY PL 155.25), this misdemeanor crime could land you in jail for up to one year whether the theft involved a $1 pack of gum or two pairs of Cole Haan shoes valued at $500.00 each. This blog entry will focus on asportation and its relevance to any shoplifting or related theft or larceny case in New York.
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.'”
Arrests for shoplifting in New York City are horrendous, but when that arrest is for shoplifting property valued more than one thousand dollars ($1,000), the accusation can become a game changer in terms of your future both inside and outside the courtroom. As noted and addressed in numerous blog entries, any New York arrest that involves a theft or larceny greater than $1,000 is a felony. In practical terms, this means that should you be convicted, you can lose not just your freedom to incarceration, but you can also lose your professional license to practice in your given field. Unfortunately for a client of Saland Law PC, this is the exact scenario our client faced after being charged with an “E” felony shoplift for allegedly stealing between $1,000 and $3,000 worth of clothing from a department store.
Not the first professional or graduate school educated client represented by the New York criminal defense attorneys at Saland Law PC for felony shoplifting and Grand Larceny in the Fourth Degree (New York Penal Law 155.30), our criminal lawyers knew they had their work cut out. For professionals such as this particular client, it is not just that a felony would be an unacceptable resolution, a misdemeanor plea to Petit Larceny (New York Penal Law 155.25) or Fifth Degree Criminal Possession of Stolen Property (New York Penal Law 165.40) would be only nominally better. Although it took significant amount of time preparing “papers” as to why our client deserved the benefit of the doubt and explaining the incident beyond the four corners of the felony complaint, eventually the District Attorney’s Office agreed to give our client a “re-pleader.” In the world of criminal law, such a disposition provides an accused a means to avoid a criminal record if he or she follows certain criteria established in advance of a plea. Although not necessarily part of this particular deal, such conditions may include counseling, community service or a fine. After an agreed upon time frame, the accused is able to withdraw his or her plea and obtain a violation or even an ACD.
It is fairly common for store security at Macy’s, Bloomingdale’s, Century 21 or any other New York City department store in Manhattan, Brooklyn or Queens, to “jump the gun” when apprehending or detaining an individual for shoplifting. Often time, an arrested shoplifter in New York is accused of placing items in his or her bag or tote as the basis of a shoplifting arrest despite there being no criminal intent on the part of the accused. While prosecutors may charge these people with the “shoplifting crimes” of Criminal Possession of Stolen Property in the Fifth Degree (NY PL 165.40) or Petit Larceny (NY PL 155.25), a little bit of investigation on the front end may have clearly established an arrest was unwarranted. Sadly, although any defendant has a right to a criminal attorney or, in this case, a New York City shoplifting lawyer, by the time an accused speaks to their counsel they have already been printed and processed with a shoplifting Desk Appearance Ticket (DAT). Unfortunately, the department store or the police have little concern at this juncture that a false allegation can ruin your professional career or jeopardize your immigration status.
As a preliminary matter, most NYC department stores do not give their patrons carts or reusable totes to place their potential purchases while shopping. Therefore, when one’s hands are full, one has little choice but to put the items in a bag that one brought to the store whether it be a pocketbook, canvas bag or even the bottom of a stroller. Also, because most department stores in New York are on multiple floors, its is far from unreasonable that a patron would go up and down elevators, escalators or stairs while perusing potential purchases. In fact, during any outing, numerous cash registers will be passed as a shopper continues to decide what to purchase or try on. Sadly, this innocent behavior can not just lead to an arrest by a rude or bullying store security officer, but the police will arrest you without investigating the validity of the store employee’s assertion. It will be up to you and your criminal defense lawyer to recreate what truly happened.
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.
A New York shoplifting arrest, whether it be in violation of New York Penal Law 155.25, New York Penal Law 155.30, New York Penal Law 165.40 or New York Penal Law 165.45, is an extremely serious crime with enormous secondary and collateral consequences. Believing otherwise is both naive and foolish. An arrest for Petit Larceny, Grand Larceny or Criminal Possession of Stolen Property will not automatically land you in jail or result in a criminal record, but for professionals – lawyers, teachers, doctors, financial services employees and others – there are very real and significant issues in terms of careers and livelihood. Remember, while each case, arrest and allegation for a larceny or theft crime may share similarities with others, each offense and person accused is distinct and separate. The following case is worth reading to understand what can happen to you upon the close of your case and to identify issues that you should discuss with your New York shoplifting lawyer or theft attorney from the onset of your criminal allegation.
In Matter of Gallagher, M-472, NYLJ 1202558663857, at *1 (App. Div. 1st, Decided June 7, 2012), Mr. Gallagher, the respondent, appeared before the Departmental Disciplinary Committee in reference to his law license and privilege to practice law in the State of New York. Prior to the disciplinary hearing, the respondent (a defendant at that time) faced a felony complaint charging him with two violations of Fourth Degree Grand Larceny (New York Penal Law 155.30(1) for shoplifting property from Bergdorf Goodman in Manhattan. The property was valued at $2,500. NY PL 155.30, Fourth Degree Grand Larceny, is committed if and when property is stolen – whether from a bank account or a store – valued between over $1,000 and $3,000.
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.