28Oct 2018

Can Forgetting To Pay Land You In Jail?

Posted by : H. Adeniyi Taiwo

If you’ve ever walked out of a store holding merchandise without paying for it, even “accidentally,” most lawyers (regardless of practice area) might guess that a crime has been committed. However, what happens if you realize your “mistake” before you leave the store? Can you still be charged with a crime? Recently, the Appellate Division weighed in on this common issue, and the answer might surprise some people.

When I was a kid, I once almost walked out of a store with my hands full of groceries. I didn’t realize it until the security alarm went off. I was absolutely mortified. I quickly said something like “sorry, I forgot.” The security guard just looked at me and laughed. Thankfully, I sheepishly walked to the register, paid and went home. However, if the security guard wanted to make an issue of it, could I have been thrown in jail?

One of the most common crimes that shoplifters are charged with is Petit Larceny. A person is guilty of petit larceny when he steals property. See NY Penal Law 155.25. The Court of Appeals has held that where a person acts in a manner that suggests an intent to deprive the owner of property, that person can be found guilty of Petit Larceny, even if they haven’t left the store.  See People v. Olivo, 52 NY2d 309, 318 (1981).  Recently, in People v. Lopez, 2018 N.Y. Misc. LEXIS 4113 (1st Dept. 2018), the Court upheld a Petit Larceny conviction, finding that secreting away the merchandise, walking past all the cash registers and trying to leave the store, all supported the inference of “larcenous intent.”

So far, the only difference between me and the defendant in Lopez, was that I was holding the groceries in my hands, not in my pockets or a book-bag. Interestingly enough though, the Court in Lopez also found that the defendant’s silence when confronted by the security guard was admissible as evidence of the defendant’s intent. This is interesting because the most common advice that criminal attorneys give is to remain silent. However, while silence in the face of police interrogation is constitutionally protected, the Court found that that protection isn’t implicated when it comes to a civilian security guard. Thus, in my case, it actually helped that I blurted out, “I’m sorry, I forgot.”

So while a person can be arrested and charged with a crime for forgetting to pay for merchandise and trying to leave the store, there are still other factors to analyze in determining whether they had the actual intent to steal. While it might seem obvious that the act of hiding the merchandise in one’s pocket would establish intent, it turns out that remaining silent might actually work against you. Even though this is the one instance where silence might work against the accused, the age old advice of remaining silent until you’ve spoken to your attorney is still the gold standard.


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