My nephew was recently fired from his job in the Deli at a Grocery Chain store, and charged with retail theft. The store has a "Cold" deli, and a "Hot" deli. The "Hot" deli sells food that is prepared and ready for consumption. At the end of the night, the "Hot" deli is broken down, and any left over food is counted, then thrown in the trash. My nephew took home a few pieces of chicken that should have been discarded. His "theft" was discovered, when a manager decided to view a surveillance tape several days later, for an unrelated matter. The next time he reported for work, he was called into the office and suspended. Police were called, he was questioned, and he was issued a $535.00 ticket for retail theft. Should he hire a lawyer and fight the ticket, or just pay the fine.
It would be a good idea to consult an attorney about this case. Depending upon the process required by the former employer and the facts of the case, there MAY be a defense. The Jury Instruction for Theft (Wis JI-Criminal 1441) requires the proof of four elements: (1) The defendant intentioanlly took and carried away movable property of another; (2) The owner of the property did not consent to taking and carrying away the property; (3) The defendant knew that the owner did not consent; and (4) The defendant intended to deprive the owner permanently of the possession of the property.
While your fact scenario sounds like an ordinance violation and not a criminal charge, the concept of what must be proven will be similar (if not identical). The defense MAY be that once the deli items are thrown into the trash they are no longer the property of the store. As stated earlier, it may depend greatly upon the specific facts of this case. It would be very important for your nephew to explore all options before just accepting responsibility and entering a guilty or no contest plea to retail theft. That process should start by consulting with an attorney.
It is a shame that this store doesn't donate unused food to a homeless shelter or some other charitable organization that accepts food donations such as Second Harvest (See link: http://www.secondharvestmadison.org ).
This communication is for the purposes of general advice only. This communication does not form any contractual obligation on behalf of the Attorney Stephen W. Sawyer or the Law Offices of Stephen W. Sawyer.
Hire a lawyer who can review the particulars of the case and advise accordingly. Plea not guilty until you speak to an attorney who can advise you. In the meantime do not speak to anyone about this case until you first speak to a lawyer.
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I agree with the first answer. This matter is too complicated for an attorney to give an opinion on a limited forum like Avvo. The answer will also depend on whether this is the criminal or civil version of theft, and whether it is a theft from employer charge. Your nephew should consult directly with local,experienced criminal defense attorneys for specific advice. Most initial consultations are free. So, your nephew has nothing to lose at first.
Regardless of whether this is criminal or civil, a conviction will make future employment more difficult.
One last thought: Do not post anymore details about your nephew's case online. Anything posted online may be used against him in court.
Good luck to you and your nephew!
I agree with the above answers. While an attorney is expensive your nephew should consider that a criminal conviction will follow him for the rest of his life. He may spend significantly more trying to get this expunged from his record than he would be hiring an attorney now. Many prosecutors are probably willing to work with him. Hire an attorney to get the best result.
This is not intended as legal advice. It is only provided for educational purposes and cannot be relied upon as legal advice. Further no attorney client relationship is or has been formed by answering this question.
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