Manhattan, with all of its high-end luxury stores has been called the shoplifting capital of the nation. A shoplifting conviction in Manhattan, just like anywhere else in New York State, is considered a crime of theft and can have serious consequences. Getting caught shoplifting in Manhattan usually means being charged with a misdemeanor petit larceny when the amount stolen is under $1,000 and felony grand larceny with amounts over $1,000--at Manhattan prices that's barely two Burberry scarves.
Shoplifting charges require the assistance of an experienced shoplifting lawyer in all instances. Although jail is not usually imposed for a first time shoplifting conviction, a person's reputation, their ability to get a loan, to attend school, to remain in the country if they are not a citizen, their ability to obtain and retain professional licenses and their ability to work can be severely compromised by a shoplifting conviction.
The reason that shoplifting charges must be handled with the utmost care by an experienced lawyer is because shoplifting is considered theft and having a record for theft can have severe consequences. For example, for immigration purposes a shoplifting conviction can prevent citizenship, a green card or even result in deportation. Shoplifting, like other thefts can easily short circuit a person's aspirations for a career in law, law enforcement, education, even the military. Also, a shoplifting record will disqualify a person from obtaining a job in a financial institution that is FDIC approved such as a bank.
It cannot be overemphasized that the last thing anyone needs on their record is a shoplifting conviction because of a one time lapse in judgement. That is true for people already settled into their careers as well as persons still seeking to attain their career goals. Anyone with a pending shoplifting charge from Manhattan, the Bronx, Queens or Brooklyn who cares about their future should contact an experienced NYC shoplifting attorney before they go to court. Shoplifting cases must be handled correctly and there are pitfalls to the inexperienced attorney.
Before discussing the pitfalls that inexperienced NYC shoplifting lawyer can fall into, it is important to understand that, in many cases, persons caught shoplifting for the first time in NYC can often avoid a shoplifting conviction if the prosecutor offers to reduce the charge to a CPL 240.20 (disorderly conduct) or, better yet, the prosecutor agrees to an Adjournment in Contemplation of Dismissal under CPL 170.55 ("ACD"). Indeed, the various prosecutor's offices in the Bronx, Queens, Manhattan and Brooklyn DA offices have policies that will allow people with otherwise clean records who are accused of shoplifting under certain dollar amounts to avoid a shoplifting conviction without having to go to trial. Any NYC shoplifting lawyer, even an inexperienced one, will know about the ACD.
In many instances, a person can arrange to consent to an ("ACD"). Getting an ACD often means taking a one-time anti-shoplifting class and doing a day of community service work and agreeing to stay out of trouble for six months. Talk to your shoplifting lawyer about how to get this disposition. Sometimes, the prosecutors, under certain circumstances, will even allow people to get their charges dismissed earlier than the normal 6-month ACD adjournment time. If the ACD is not available, oftentimes the prosecutors will offer to reduce the shoplifting charge to a CPL 240, 20 disorderly conduct. In most instances, the ACD is favorable to the 240.20.
One trap that many new lawyers fall into with a nyc shoplifting case with the ACD is when the prosecutor tells the lawyer that their client is not eligible for the ACD just because the dollar amount of the stolen items is above the prosecutor's cutoff amount for an ACD. In this situation, instead of negotiating further with the prosecutor to attain the ACD, or going over the prosecutor's head to the prosecutor's bureau chief, the inexperienced lawyer just goes back to their client and tells their client to take the prosecutor's offer of a reduction to a CPL 240.20 (disorderly conduct) because the ACD is not available. In my opinion, a person with no prior shoplifting record should not be denied the ACD just because the dollar amount of the stolen merchandise is above the prosecutor's cutoff for an ACD. Oftentimes, with some effort on my part, the prosecutors will back off their refusal to grant the ACD and then my client does not have to take the 240.20.
Another common pitfall that inexperienced NYC shoplifting lawyers experience is the confusion over what it means to have a 240.20 conviction sealed. Lawyers may tell their client that the 240.20 is not a crime, that it is just a violation and that the record will be "sealed." However, what the lawyer fails to tell the client is that the record of the conviction is only partially sealed. There is a big difference between a fully sealed record and a partially sealed record. The reason that the client is not told that the record is only partially sealed is because many lawyers, even some experienced NYC shoplifting lawyers, simply do not understand the differences between the CPL 160.50 full sealing and the CPL 160.55 partial sealing.
In a nutshell, an ACD results in a full sealing under 160.50 because the ACD results in a complete dismissal of the shoplifting charge. On the other hand, a 240.20 conviction results in a partial sealing under 160.55 because the shoplifting charge is not completely dismissed but just reduced. I make sure that any client of mine who pleads to the 240.20 fully understands that the record will only be partially sealed. The client will also fully understand what parts of the record are sealed and what parts are not sealed. In some instances, a client who truly understands the difference between the sealing statutes will not settle for the 240.20 because they will understand that their case file will remain open in the courthouse if they accept the 240.20.
Under a partial seal pursuant to cpl 160.55, the court file will still be open and available to background checkers who will be able to see that the person was originally arrested for shoplifting but pleaded down to a violation. Although, technically the person does not have a criminal record and has not been convicted of a crime, the fact that the case file is open to the public and to background checkers could potentially cause issues with one's employment and educational goals. With an ACD, the case is dismissed and the court file is sealed as per CPL 160.50 and not available to background checkers
Another problem area with lawyers inexperienced with NYC shoplifting cases is their assumption that an ACD is always the best solution. While that is true in most instances it is important to note that for some people, notably those in the financial services, an ACD might be harmful to one's career, (see below.) Again, talk to an experienced criminal defense lawyer about your particular circumstances. Get a lawyer who is familiar with shoplifting in NYC and who has worked with NYC prosecutors on shoplifting cases. With the right legal representation and when an ACD could create career issues sometimes the prosecutors assigned to the case or their superiors will consent to outright dismissals in the interest of justice.
Remember that employers and schools view theft convictions harshly and that criminal convictions in New York State-including anywhere in New York city--remain on one's record for at least ten years. There is never any expungement of anyone's criminal court record in New York and a shoplifting conviction cannot be sealed for at least ten years. That means that a conviction for theft in New York will be available for background checkers to see for at least ten years. And unmlike the disorderly condcut conviction which the background checker will likely have to go to the courthouse to see, all a potential employer needs to do to see a misdemeanor shoplifting conviction is run an OCA background check. The shoplifting conviction will pop up for at ten years. Then, after ten years it will still be there unless the person with the conviction files a motion to get the record sealed and the court grants the motion.
The moral here is that anyone caught shoplifting here in Manhattan or the Bronx, Queens, Brooklyn or Staten Island should try to get the best shoplifting lawyer they can before going to court. Frequently people who have been represented by other criminal defense lawyers will call me the day after they have entered a guilty plea expressing remorse over entering the plea. I have to tell them that they called me too late and that there is nothing that I can do now. Guilty pleas in New York City Criminal Court can almost never be withdrawn so people should never enter one unless they are 100 percent sure that is what they want to do.
But the fact that the ACD is available does not mean that everyone is entitled to get caught shoplifting once without needing to worry about the consequence. Even shoplifting arrests without convictions can have substantial consequences. For example, employees of the NYC Department of Education must report all arrests, including shoplifting arrests, in writing to the Office of Personnel Investigations, they may also have to notify their school administrator and their UFT representative. In fact, many government employees are obligated to report any arrest to their superiors.
Moreover, things can get very tricky for those in the financial services. An ACD might not be a solution for anyone currently working in or contemplating a career in financial services. These people may find their career in jeopardy with the ACD since many financial institutions have to abide by FDIC regulations and Section 19 of the Federal Deposit Insurance Act (FDIA), states that the FDIA
“prohibits, without the prior written consent of the Federal Deposit Insurance Corporation (FDIC), a person convicted of any criminal offense involving dishonesty or breach of trust or money laundering (covered offenses), or who has agreed to enter into a pretrial diversion or similar program in connection with a prosecution for such offense, from becoming or continuing as an institution-affiliated party, owning or controlling, directly or indirectly an insured depository institution (insured institution), or otherwise participating, directly or indirectly, in the conduct of the affairs of the insured institution. In addition, the law forbids an insured institution from permitting such a person to engage in any conduct or to continue any relationship prohibited by section 19.”
Although the above paragraph talks of persons "convicted" and not just arrested. It is important to note that the FDIC treats people who have agreed to enter a "pretrial diversion program" the same as those who have been convicted. Several years ago there was a Federal Court Decision in New York which held that that an ACD was tantamount to a pre-trial services program. This means that persons who receive an ACD for shoplifting might put their financial careers in worse jeopardy then a person who simply pleaded their shoplifting charge down to a disorderly conduct charge.
For persons in the financial industry charged with shoplifting, it is important to discuss their FDIC concerns with their attorney. An experienced shoplifting attorney might be able to convince the prosecutors to fashion a dismissal of the shoplifting charge without having the dismissal fall under the ACD provision of CPL 170.55. That should lessen the risk of incurring the wrath of the FDIC.
the bottom line is that a shoplifting arrest in New York City whether it is in Manhattan, the Bronx, Queens, Brooklyn or Staten Island should be taken very seriously and people are wise to seek out the best lawyer that they can afford BEFORE they go to court. Call me at 212-786-2999 BEFORE you plead guilty if you have any questions about your NYC shoplifting charge.
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