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.
In People v. Sewell, 2014QN067140, NYLJ 1202739039751, at *1 (Crim., QU, Decided July 15, 2015), the defendant was at a HomeDepot and, according to the accusatory instrument, removed some items from shelves. Nothing atypical about that, but shortly thereafter the defendant went to a bathroom in the store. At some point an unapprehended male followed the defendant into the bathroom. Obviously there are no videos in a restroom (at least there should not be and that would raise other significant legal issues and concerns), but the male then walked out. This man was stopped attempting to exit the store with items that were removed from the shelves. Within the four corners of the complaint against the defendant, there was no evidence provided or facts alleged that show how, if at all, the unapprehended male (he was let go) took or received the property from the defendant and what, if any, relationship existed between the two. Ultimately, a store representative stated that the defendant did not have permission or authority to possess or take the property without paying (or attempt to do so). Because there was no direct evidence that the defendant attempted to steal the property, her criminal defense attorney sought dismissal of the crime of Petit Larceny pursuant to NY PL 155.25.
In ultimately dismissing the charge of Petit Larceny (it was actually Attempted Petit Larceny), the court first addressed the standard by which one person can be responsible for the actions of another. This, in the legal world, is called acting in concert or accessorial liability. In order to establish this type of responsibility “the People must prove beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the crime charged and that, in furtherance thereof, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit such crime” (People v. Chardon, 83 AD3d 954, 956-957 [2d Dept. 2011]). Further, even if this liability is established, just because one defendant entered a bathroom where the other defendant was present in and of itself is not sufficient to establish criminal activity. “[M]ere presence at the scene of a crime, even with knowledge that the crime is taking place, or mere association with a perpetrator of a crime, is not enough for accessorial liability (People v. Chardon, 83 AD3d at 957). As such, prosecutors were required to provide more factual allegations in the accusatory instrument reflecting the relationship, actions, and mental state of the defendant in her connection to the unapprehended other person.
To learn more about Petit Larceny, this blog, the NewYorkCriminalLawyerBlog.Com, New-York-Lawyers.org, NewYorkTheftAndLarcenyLawyers.Com, and NYDeskAppearanceTicket.Com all have significant amounts of easily digestible information about PL 155.25 as well as PL 165.40 and other shoplifting related offenses.
Saland Law PC is a New York criminal defense practice handling matters relating to theft and larceny crimes throughout New York City as well as many adjacent counties. The founding New York criminal defense attorneys at Saland Law PC served as prosecutors in the Manhattan DA’s Office before starting the law firm.