By Anthony Palumbo of Palumbo & Renaud - Cranford, NJ
Article provided by Anthony N. Palumbo, Criminal Defense Attorney
Visit my website at www.palumbo-renaud.com
The 5 Ways to Commit Shoplifting
Under the applicable New Jersey statute for shoplifting, N.J.S.A. 2C:20-11, there are five different scenarios in which a person can commit shoplifting in New Jersey. First, shoplifting occurs when a person purposely takes merchandise from a store with the intent to permanently deprive the owner of its benefit. Intent to permanently deprive generally means the intent to not pay for the item.
A second way shoplifting occurs is when a person enters a store and purposely hides an item with the intent to take it from the store without paying for it. If someone conceals an item on their person before paying for it, there will be a presumption at trial that the person intended to steal it. The presumption means that it's up to the defendant's lawyer to prove that the defendant did not have the intent to not pay. This is different than the usual presumption in a criminal case, where the prosecution is required to prove the defendant's intent.
Third, shoplifting occurs when a person transfers, removes, or somehow alters a price tag with the intention of not paying the proper amount for the merchandise.
Fourth, shoplifting occurs when a person purposely puts merchandise in a container with the intent to not pay full value for it.
Finally, the fifth way shoplifting occurs is when a store worker purposely under-rings merchandise to that the buyer pays less than the proper price. The prosecution must prove that the store worker had the intent to permanently deprive when he under-rang the item, and that it was not a result of negligence.
When Detention of Shoplifters is Rightful
When someone commits an act of shoplifting, it gives rise to certain rights on behalf of the storekeeper. In certain situations, it may be rightful for the storekeeper to detain a shopper he suspects of theft. When a shopkeeper, security guard, or police officer has probable cause to believe someone has shoplifted and has purposely concealed items on him, the shopkeeper can detain the shoplifter. Probable cause requires the shopkeeper to have a reasonable basis to conclude that theft has occurred. Additionally, the theft must have occurred in front of the shopkeeper.
Even if detention is rightful, it must still be carried out in a reasonable manner so that only reasonable force is used. Additionally, the detention must not last longer than the reasonable time period necessary to determine whether the individual has the items and secure them. For example, if a merchant believes he witnessed a customer concealing an item in his coat and the merchant detains that person and finds that there is nothing in the coat, the merchant must release the customer upon that finding. If the customer is held over the reasonable time period, the merchant will not be immune from civil or criminal liability for the detention, and may be charged with false imprisonment.
Consequences of a Shoplifting Conviction
The penalties for shoplifting depend on the price of the merchandise. The price is determined based on its reasonable market value at the time of the theft. One way an attorney can defend a shoplifting case is by proving to the fact finder that the reasonable value of the merchandise was less than asserted by the prosecution and therefore warrants a lower charge.
Disorderly Persons Offense
Merchandise valued at less than $200 results in a disorderly persons offense. Penalties include fines, restitution (paying back the amount of the items), up to 6 months in jail, community service up to 25 days, driver license suspension. Where the conviction is for a third or subsequent shoplifting disorderly persons offense, there is a mandatory jail term of at least 90 days.
Fourth Degree Crime
It is a fourth degree crime to shoplift merchandise with a value of between $200 and $500. This is an indictable crime under New Jersey law and a conviction carries penalties of up to18 months in prison, a fine of up to $10,000, at least 10 days community service.
Community service time will vary based on how many times a person has previously been convicted of shoplifting. For a second offense, a person must serve 15 days, and for a third or subsequent offense, a person must serve 25 days of community service. A fourth degree shoplifting charge can be downgraded to a disorderly persons offense if the defendant does not have two or more prior shoplifting convictions on his record.
Third Degree Crime
It is a third degree crime to shoplift merchandise with a market value of between $500 and $75,000. Even if the value is less than $500, if the incident involves an organized retail theft enterprise, it will be considered a third degree crime. Under N.J.S.A. 2C:20-11, an organized retail theft enterprise exists where two or more people create an association in order to transfer the ownership of stolen merchandise. Sometimes a third degree charge can be downgraded to a disorderly persons offense, but this cannot occur where the value of the items is $2,000 or more.
Second Degree Crime
Shoplifting is a second degree crime when the merchandise is $75,000 or more, or where the incident involves organized retail theft enterprise with merchandise priced at $1,000 or more. A conviction carries penalties of 5 to 10 years in prison. This charge cannot be downgraded to a disorderly persons offense. If a plea is reached and the charge is downgraded, it will be reduced to a third degree charge.
Anthony N. Palumbo is a successful criminal defense attorney who has been practicing in Union County, New Jersey for almost 40 years. As a former Union County Prosecutor and former Municipal Prosecutor, who currently serves as a public defender, he has a unique edge in building solid defenses and is well reputed in the legal community. Additionally, Anthony N. Palumbo represented a large multi-national corporation and did all their shoplifting prosecutions in Union County, NJ for a number of years. For more information on Shoplifting in New Jersey, visit Anthony N. Palumbo's website at www.palumbo-renaud.com.