Is It Shoplifting If I Don’t Leave the Store?

Many people facing petit larceny or grand larceny charges were arrested for their alleged conduct inside of a store. Surprisingly, people can face criminal charges for stealing property in a store even if they did not actually leave the store. The specific facts of any given shoplifting case will determine whether the charges are legitimate, regardless of whether the defendant exited the store.

This article discusses larceny law and provides a few hypotheticals to show instances where a defendant would or would not have a strong defense to the charges brought against them.

In some situations, store security guards may have unlawfully detained you, and you may be able to sue them for unlawful arrest.

If you were arrested for shoplifting, contact Cody Warner P.C. for a free consultation. We can discuss your case and explore all your options.

What is Larceny?

All shoplifting charges—whether petit larceny or grand larceny—involve larceny, so it’s important to know how larceny is defined in New York because the success of any case will depend on how the facts fit with the definition of larceny.

New York defines larceny to be when a person, with the intent to deprive another of property or to appropriate the same to himself or to a third person, wrongfully takes, obtains or withholds such property
from an owner thereof.

With that definition of larceny in mind, let’s go through some common alleged shoplifting scenarios where the defendant didn’t leave the store and discuss whether the defendant would have a good case.

Scenario #1: Booster Bag

In this example, let’s say a man is inside a department store that sells watches. While inside the store, the man is observed by security on video camera, and he is seen putting several watches inside a black bag, which he zips up after he puts the watches inside. He then picks out some shirts and goes to the changing room to try on the clothing. As he exits the changing room, store security is waiting for him and asks him to go to their office.

The man agrees to go to the security office, where he is asked what he has in his bag. He says that he has watches, but he was going to pay for them. He pulls the watches out of the bag, but the store security notices that the bag is crudely lined with aluminum foil and concludes that the bag is a “booster bag,” which is a bag used for shoplifting—the aluminum foil helps prevent alarms from detecting the stolen merchandise when a person tries to exit the store with it.

Even though the man had never left the store or even passed the cash registers, he would not have a good case because he put the watches inside the booster bag. A jury could easily conclude that the aluminum foil was not in the bag by accident. Coupled with the man’s decision to put watches inside of the bag, the booster bag is strong evidence that the person had the intent to deprive the store of the property, and therefore he arguably committed larceny.

Scenario #2: Multi-Level Store

In New York City, many department stores are multiple levels. In many of these stores, cash registers exist on each level, and there is an expectation that customers pay for items when they exit a level.

In this hypothetical, a woman who is visiting New York on vacation goes to a department store that has many different levels. She selects a dress on one floor, walks past the cash registers on that floor, and takes an escalator to the ground floor because she wants to look at shoes. When she reaches the bottom of the escalator, store security is there to stop her. They ask her if she has paid for the dress, she says “no,” and then they detain her until the NYPD arrives and charge her with shoplifting.

In this scenario, the woman would likely have a very strong argument that she didn’t realize that she was expected to pay for the dress on the floor where she selected the dress. In her hometown, all department stores are one level, and you pay at the cash registers at the front entrance. Absent other evidence, the prosecution would have a very difficult time proving beyond a reasonable doubt that the woman intended to wrongfully take the dress.

Scenario #3: Wearing the Item

Many people like to try on items before they buy them, whether it be clothing, sunglasses, or perfume. In this hypothetical, a person goes to a store where he tries on hats. While trying on a hat, he sees a bunch of leather gloves on a nearby counter, so he walks over to the gloves to try them on. Ultimately, he decides he doesn’t like the gloves, so he exits the store.

After the man leaves the store, he is stopped by store security and then arrested. He was wearing the hat on his head when he exited the store. This is an interesting case because the man could have honestly forgotten that the hat was on his head when he exited the store. Ultimately, a jury would decide whether it believed that the man intended to steal the hat. 

This case would likely come down to the burden of proof in a criminal case—proof beyond a reasonable doubt. Although it may be probable that the man was stealing, there arguably is no proof beyond a reasonable doubt of his guilt. It’s foreseeable that he could have honestly made a mistake. 

In this hypothetical, the man would likely need to testify to establish his defense. If he had previously been convicted of stealing, then that would likely become known by the jury if he decides to testify that it was a mistake. His prior conviction could very likely prevent him from having a successful defense of mistake. Other facts, such as whether the hat was so small that he might not have felt it on him as he exited the store, could also be relevant. 

Need Help? Speak to NYC Criminal Lawyer Cody Warner Today

If you’ve been charged with a crime for shoplifting, contact NYC criminal lawyer Cody Warner for a free consultation. He can assess your case to determine the best path forward.