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.
Asportation, unlike “property” or “owner,” is not defined in the New York Penal Law. Asportation, as defined online by the Merriam-Webster Dictionary, is simply “a carrying away.” While this may be accurate and true, the question posed by (or usually to) those in the criminal justice system from criminal lawyers and prosecutors to the police and judges, is whether the asportation was enough or a particular threshold (if one exists) was crossed. In other words (and as addressed both in other blog entries on the NewYorkTheftAndLarcenyLawyersBlog.Com and NewYorkCriminalLawyerBlog.Com), can you be arrested, issued a Desk Appearance Ticket and ultimately convicted if your taking was insignificant and your movement was within a store? Every case has to stand on its own two feet and evidence presented, but the short answer is a clear “yes.”
In People v Riso (Anthony) 2013 NY Slip Op 50437(U) Decided on March 27, 2013 Appellate Term, First Department, the defendant sought to have his conviction overturned for shoplifting after he pleaded guilty to New York’s “shoplifting crime” of New York Penal Law 155.25 by arguing, in part, that there was not sufficient asportation. There, as set forth in the criminal complaint (information) “a store loss prevention employee observed Riso remove 27 t-shirts from a display, ‘conceal’ them in a shopping bag, and ‘attempt to leave the store in possession of the property and without paying for it.'”
Although I personally do not believe the phrase “attempt to leave the store…” provides enough legal sufficiency (how did he attempt to leave the store, where was he, what did he do, etc.?), the First Department deemed the information sufficient and legal. A lesser standard when compared to a trial’s beyond a reasonable doubt, the court stated that:
“Given the sheer number of t-shirts allegedly concealed by defendant, the store employee’s sworn allegations were sufficient for pleading purposes to satisfy the intent and asportation elements of the charged offense, and this even in the absence of specific allegations as to the defendant’s movements or whereabouts in the store (see generally People v Olivo, 52 NY2d 309, 315-319 [1981]).”
Again, while I may disagree that merely stating that one attempted to leave a store is sufficient, the greater legal concept remains. Asportation, an element of a Petit Larceny / PL 155.25 case, requires some degree of movement. This moving, however, can be nominal and occur within the four walls of a business or store. You need not leave the establishment you are accused of shoplifting from. There is no requirement that you hide the property in your bag, backpack or pocket. There is no element that mandates a certain distance that you travel from the place of the taking to the location of your arrest. Does this liberal review of asportation seem unfair or leave room for wrongful prosecutions because of eager and aggressive security officers? No doubt. But now, right or wrong, for better or worse, you have been warned. Unfortunately, if you are reading this blog entry, it is likely that its too late to learn about asportation. Fortunately, however, merely because your actions may have satisfied this element, by no means is every elements satisfied and your guilt proven beyond a reasonable doubt. Explore your defenses and educate yourself about the law to put the correct and strongest defense into motion.
To read more about New York shoplifting crimes including Petit Larceny and Criminal Possession of Stolen Property in the Fifth Degree (New York Penal Law 165.40), click through the respective links. Additional information on Olivo and New York City Desk Appearance Tickets can be found as well.
A New York criminal defense firm founded by former Manhattan prosecutors, the criminal defense attorneys and theft defense lawyers at Saland Law PC represent clients for shoplifting offenses throughout New York City.