Accidental (?) Shoplifting in New York
Even though most of us have accepted the fact that surveillance cameras are everywhere, especially in stores, remarkably, we forget that the eyes that watch us are looking through a guilt-seeking lens.
Just Some Lip Balm, PleaseOn July 18, 2017, at about 5:15 P.M., Kurt Calvo was shopping at a CVS pharmacy at 31st Avenue and Ditmars Avenue in Queens, for fever blister medication for his mouth. He spotted an acceptable product that was priced at $19.99, which was in his price range. Because he had every intention of purchasing the product, he opened the package and applied the product to his lips.
Regrettably, at that point, he placed the product into his pants pocket and walked toward the cash register to pay for the product. Kurt was gainfully employed and did not have a criminal record. He had made purchases at that CVS in the past, and when he was detained he had the funds in his possession to effectuate the purchase of the blister medication. And he had every intention of doing so. DID NOT MATTER. Before he was able to pay for the product, however, he was accosted by CVS store security and was taken into custody. Later that evening he was arrested and issued a Desk Appearance Ticket.
In New York, the general rule is that private store detectives and other employees are permitted to arrest or detain individuals suspected of shoplifting (see General Business Law ? 218). Store detectives are also relieved of civil liability for false arrest if they can show reasonable grounds for their suspicion (see Jacques v Sears, Roebuck & Co., 30 NY2d 466 ). In exercising this authority store detectives and other employees are generally held to act as private individuals and not as police officers or State officials (see People v Horman, 22 NY2d 378, cert den 393 U.S. 1057 ; compare People v Smith, 82 Misc 2d 204  [holding that store detectives in New York City who are appointed by municipal officials as "special patrolmen" are governmental agents for Fourth Amendment purposes]).
Case law also teaches that an unauthorized search or seizure by private individuals, including store detectives, does not render the evidence inadmissible at subsequent civil or criminal proceedings (see Horman, 22 NY2d at 381-382; Burdeau v McDowell, 256 U.S. 465 ; Sackler v Sackler, 15 NY2d 40 ; People v Gleeson, 36 NY2d 462 ). A store policy, reflecting a practice of turning an accused shoplifter over to authorities after investigation and after the decision to prosecute has been made privately, is constitutionally immaterial and consistent with the customary procedures involved in all citizens' arrests (see People v Adler, 50 NY2d 730, 737 ).
Kurt now had to defend himself against criminal charges.
Criminal Possession of Stolen Property in the Fifth Degree"A person is guilty of criminal possession of stolen property in the fifth degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by the owner thereof." Penal Law ?165.40 (emphasis added). "A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct." Penal Law ? 15.05(1). "A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists." Penal Law ? 15.05(2). "Possess" is defined as "to have physical possession or otherwise exercise dominion or control over tangible property." Penal Law ? 10.00(8).
Kurt was in a position where he would have to try to convince the Court that the allegations of the information did not establish that he "knowingly possessed" the stolen property within the meaning of Penal Law ?? 165.40 10.00(8), and 15.05, with intent to benefit himself or a person other than an owner thereof or to impede the recovery of it by the owner.
In People v. Vargas, decided in 2017, [2017 NY Slip Op 50501(U) Decided on April 7, 2017], a police officer had responded to a radio run regarding a male pulling on car door handles. The officer observed defendant walking on Booth Street and 63rd Avenue, in Queens County, and recovered car keys from defendant's jacket pocket and a flashlight from his backpack. When the officer pressed the alarm button on the car keys, a car alarm from a 2012 Nissan Moreno, which was located across the street from where defendant was standing, was activated. The officer felt the hood of the Nissan, which was still warm despite the fact that it was below freezing outside. Also, the officer had been informed by Isaac Zano that he had parked the Nissan on January 23, 2013, at approximately 10:15 p.m., on Yellowstone Boulevard and 63rd Drive but that, on January 24, 2013, at approximately 1:00 a.m., Isaac Zano had observed that the vehicle was missing. Finally, the officer had been informed by Michael Zano, Isaac's father, that he is the legal custodian of the Nissan and that defendant did not have permission or authority to take, use, remove, or otherwise exercise control over "the above mentioned property."
The court held that the instrument sufficiently alleged facts of an evidentiary character supporting or tending to support the count of criminal possession of stolen property in the fifth degree and provided reasonable cause to believe that defendant had committed this crime since it established that defendant possessed the property in issue and that it was stolen property.
Kurt Calvo was let go by the judge in his case. The judge believed under the facts alleged that intent to steal was never established in the accusatory instrument. But Kurt now always stays vigilant whenever he is in a store or anywhere else, for that matter.