We recently represented a 19-year-old with no prior criminal record who was charged with second-degree eluding after a dangerous police chase involving an allegedly stolen vehicle. The pursuit was captured on police video, the car crashed into a pole, and our client spent almost a week in jail after his arrest.
The State's initial plea offer was five years in New Jersey State Prison.
We believed there was a better way to resolve the case.
We obtained our client's release from jail, carefully reviewed the police video and identified an important issue concerning whether the State could prove that he was actually the driver. We then persuaded the prosecutor to allow him to apply for Pretrial Intervention (PTI), a diversionary program for first-time offenders.
Even when PTI initially rejected his application because of the seriousness of the charge, we continued to advocate for him.
Ultimately, our client was admitted into PTI. He successfully completed the two-year program, was never sentenced to State Prison and the criminal charges against him were dismissed.
Our client was 19 years old, lived at home with his mother and older sister, was working and continuing his education. He had never been arrested before.
Police received a report concerning a stolen vehicle and later located the car with four people inside. When officers activated their lights and sirens, the driver did not stop.
A police pursuit followed.
The car was speeding, crossed a double yellow line and continued until it struck a pole. Fortunately, no one was injured.
All four occupants immediately got out of the vehicle. Police believed our client had been driving.
He was charged with second-degree eluding under N.J.S.A. 2C:29-2(b) and third-degree receiving stolen property under N.J.S.A. 2C:20-10.2(a).
These were serious charges for anyone, particularly a 19-year-old who had never before been involved in the criminal justice system.
Our client was detained after his arrest and spent almost a week in jail.
Our first priority was getting him home.
We represented him at a detention hearing and obtained his release while the criminal charges were pending.
We then turned our attention to the evidence.
There was no question that the pursuit had occurred. The motor vehicle recording from the police car captured the chase, and officers' body-worn cameras recorded their interactions with the occupants after the crash.
But watching the recordings carefully raised a different question:
Could the State prove that our client was the person driving the car?
Our client told us that he had been a passenger. Importantly, he had not given the police a statement after his arrest.
The officers believed our client was the person seen getting out of the driver's side of the vehicle after the crash. But with four people getting out of the vehicle almost immediately, the police video did not clearly establish which person had actually been sitting in the driver's seat.
That distinction mattered.
The State could prove our client was in the vehicle. To convict him of eluding, however, it had to prove that he was operating it.
The video did not give us an automatic defense. But it gave us an issue that mattered when evaluating the strength of the State's case and negotiating an appropriate resolution.
New Jersey law makes it a crime for a driver to knowingly flee or attempt to elude police after receiving a signal to stop.
Eluding becomes a second-degree crime when the flight or attempt to elude creates a risk of death or injury to another person.
The circumstances of this pursuit were serious. The vehicle was speeding, crossed a double yellow line, failed to stop for police and eventually crashed into a pole.
We had to deal with those facts honestly.
Effective criminal defense does not mean ignoring bad evidence. It means determining what the State can prove, identifying the issues that matter and using them to pursue the best available result for the client.
In this case, we believed the uncertainty about the identity of the driver was significant. We also believed our client's age, background and lack of any prior criminal history had to be considered in determining an appropriate resolution.
The prosecutor's initial plea offer called for our client to serve five years in New Jersey State Prison.
We did not believe that was the right result for this case.
Our client had just spent almost a week in jail. For a 19-year-old who had never been arrested, the experience had a real impact on him. He understood that the decisions he made and the people he associated with could have consequences that might change the direction of his life.
He was working. He wanted to continue his education. He had a family supporting him and the ability to move forward from what had happened.
Rather than accept the five-year prison offer, we began discussing with the prosecutor whether our client could be considered for PTI.
PTI allows certain defendants to resolve criminal charges through a period of supervision rather than a traditional conviction and sentence.
But PTI should never be assumed in a serious criminal case. Being young and having no prior criminal record does not automatically entitle someone to admission.
We knew that getting our client into PTI would require the prosecutor to look beyond the degree of the charge and consider the individual defendant and the particular evidence in the case.
We presented the reasons we believed PTI was appropriate, including our client's age, lack of criminal history, employment, educational plans and potential for rehabilitation. We also raised the issue we had identified in the video evidence concerning whether the State could clearly prove he had been driving.
We persuaded the prosecutor to consent to our client applying for PTI.
But that did not end the fight.
Our client's PTI application was initially rejected because of the seriousness of the charge, but we did not believe that rejection should determine the outcome of the case. We continued our discussions with the State and again focused on both the evidence and our client's personal circumstances.
Ultimately, the State agreed to allow our client to enter PTI and that decision changed the course of his case.
As a condition of his admission into PTI, our client entered a guilty plea. The case was held open while he participated in the program. He was never sentenced.
Instead, he was placed into PTI for two years. He now had the opportunity to avoid a criminal conviction, but he had to do his part.
He did. Our client successfully completed the program, and the charges against him were dismissed.
Approximately four months after the case began, we were able to reach the PTI resolution before our client was indicted.
The difference between the State's initial position and the ultimate outcome was significant.
Our client began the case in jail facing second-degree eluding and third-degree receiving stolen property. Ultimately, he was never sentenced and his case was dismissed.
For a 19-year-old at the beginning of his adult life, the result gave him an opportunity to continue his education, work and move forward without a criminal conviction following him.
Every case is different, and PTI is never guaranteed. The facts, criminal history, strength of the State's evidence, prosecutor's position and individual circumstances can all affect the available options.
This case involved difficult facts and significant evidence. We did not ignore those problems. We identified the issue in the State's proofs that mattered, addressed the mitigation that made our client a good candidate for rehabilitation and pursued an alternative to a five-year prison sentence.
]]>In a recent Bergen County case, our client learned that Target had preserved surveillance footage from several prior visits during which it alleged that she had failed to scan all of the merchandise in her cart. Although the value of the unpaid merchandise on each individual visit was relatively small, the amounts were added together and our client was charged with a fourth-degree crime in Superior Court.
She had never been arrested before.
Ultimately, our client never had to appear in Superior Court. The case was remanded to Municipal Court, she was permitted to enter the Conditional Dismissal Program, and after successfully completing the program, the charge was dismissed. She avoided a criminal conviction and is now seeking to have the record of the arrest expunged.
Her case is a good example of both how seriously New Jersey can treat repeated self-checkout shoplifting and what can sometimes be accomplished even when the State has significant evidence.
Our client was a 39-year-old married mother of two young children. After college, she worked in the fashion industry in New York City. At the time of the incident, she had stepped away from her career and was staying home with her children.
She had no prior arrests or criminal record.
Over the course of several months, she shopped at the Target store in Closter, New Jersey. She used the self-checkout registers and purchased numerous items during each visit. On approximately seven occasions, however, Target alleged that she failed to scan three or four items before placing the merchandise in a reusable shopping bag and leaving the store.
The value of the unpaid merchandise on each individual visit was generally between approximately $15 and $40.
Target did not stop her after the first incident. It did not stop her after the second.
Instead, Target had preserved surveillance footage from prior visits. It also had information identifying our client's vehicle, including her license plate.
By the time loss prevention confronted her, Target's evidence was not limited to what had occurred that day.
On the final visit, our client again used self-checkout. She scanned and paid for numerous items, but several items were not scanned.
Loss prevention personnel stopped her after she passed through the first set of doors leaving the store and brought her to a security office.
Our client was surprised and initially said there must have been a mistake. She showed loss prevention her receipt to demonstrate that she had paid for merchandise and said she must have missed the other items. She also offered to pay for the merchandise that had not been scanned.
Target nevertheless contacted the Closter Police Department.
Our client was taken to the police station across the street, where she was processed and later released on a summons. Target also banned her from the store for one year.
The more serious problem was that Target had surveillance relating to approximately seven different shopping trips.
We cannot say what evidence Target maintains in every shoplifting investigation.
In our client's case, however, Target had retained surveillance footage from multiple prior visits even though she had not been stopped on those dates. The videos showed her selecting merchandise, using the self-checkout registers and leaving the store.
This became important because the State was not limited to prosecuting what allegedly happened on the day she was stopped.
Someone who is stopped by loss prevention should therefore not assume that the store has evidence only from that particular shopping trip. Depending on the circumstances, there may be evidence relating to prior transactions as well.
This was one of the most significant issues in our client's case.
Under New Jersey law, shoplifting involving merchandise with a retail value of less than $200 is generally a disorderly persons offense. When the value is at least $200 but does not exceed $500, shoplifting is a fourth-degree crime.
New Jersey law also permits the value of merchandise involved in multiple shoplifting violations to be aggregated when the conduct is part of one scheme or course of conduct. N.J.S.A. 2C:20-11(c).
That can dramatically change the seriousness of a case.
On each individual visit, Target alleged that our client had taken only approximately $15 to $40 worth of merchandise without paying. If the incidents had been treated individually, each amount would have been below the $200 threshold for an indictable shoplifting charge.
But the alleged losses from the different visits were added together. Once the total exceeded $200, our client was charged with fourth-degree shoplifting.
Instead of facing a disorderly persons charge in Municipal Court, a 39-year-old mother with no prior criminal history was suddenly facing an indictable criminal charge in the Bergen County Superior Court in Hackensack.
Not every successful criminal defense case involves proving that the State has a weak case.
Sometimes the evidence is strong.
In those situations, effective representation requires an honest assessment of the evidence and a realistic strategy for minimizing the consequences and protecting the client's future.
Here, Target had surveillance from multiple dates. The videos showed the self-checkout transactions and the merchandise Target alleged had not been scanned. We recognized that the evidence presented a significant challenge.
But we also believed that the appropriate resolution had to take into account who our client was, her lack of any prior criminal history, the relatively small amount involved in each individual incident and the consequences that an indictable criminal conviction could have on her future.
Our focus became preventing this case from defining the rest of her life.
Because the aggregated amount exceeded $200, the case was initially sent to Bergen County Superior Court as a fourth-degree criminal matter.
We contacted the Bergen County Prosecutor's Office and asked that the case be remanded to Municipal Court.
We emphasized our client's lack of a criminal record and the circumstances of the case. We also waived her initial Central Judicial Processing (CJP) court date while the matter was being reviewed.
As a result, our client never had to appear in Superior Court.
The Prosecutor's Office ultimately agreed to remand the case to Municipal Court.
That was an important first step, but simply moving the case from Superior Court to Municipal Court was not our ultimate goal. We wanted to resolve the case without leaving our client with a criminal conviction.
Once the case was in Municipal Court, we sought a resolution that took into account both the allegations and the fact that our client was a first-time offender.
Ultimately, she pled guilty to the lesser offense of disorderly conduct and was admitted into New Jersey's Conditional Dismissal Program.
Conditional dismissal is a diversionary program available to certain eligible defendants charged with disorderly persons or petty disorderly persons offenses. It gives an eligible defendant an opportunity to complete a period of supervision without having a judgment of conviction entered.
Our client was placed in the program for one year.
She completed that period without any new incidents and satisfied the requirements of the program. The matter was then dismissed.
The case had started with a fourth-degree shoplifting charge in Superior Court. It ended with no criminal conviction.
She is now taking the next step of seeking to have the record of the arrest expunged.
No.
A receipt showing that a person paid for other merchandise does not necessarily establish that the failure to scan additional items was an innocent mistake.
New Jersey's shoplifting law specifically addresses purposely under-ringing merchandise with the intent to deprive the merchant of its full retail value.
Of course, honest mistakes at self-checkout can happen. An item may fail to scan, merchandise can be overlooked or a customer may genuinely believe everything in the cart was paid for.
Intent matters.
But when a retailer has evidence that similar conduct occurred repeatedly over multiple visits, claiming that every failure to scan was accidental may become much more difficult.
Being stopped by store security is frightening and embarrassing, particularly for someone who has never been arrested before.
The natural reaction is often to start explaining. A person may insist that it was an accident, offer to pay for the merchandise, apologize or answer questions about previous shopping trips.
It is important to understand that statements made to loss prevention or police can become evidence in a criminal case.
Offering to pay for the merchandise also does not necessarily prevent the store from contacting police or criminal charges from being filed.
If you are accused of shoplifting, particularly if loss prevention begins asking about prior transactions, you should consider speaking with an experienced New Jersey criminal defense attorney before making detailed statements about what happened.
Our client's case did not involve surveillance that was unclear or evidence that simply disappeared.
The evidence presented a real problem.
But a criminal defense case is not always limited to the question of whether the State can prove the charge. A defendant's history, the amount involved, the degree of the offense, available diversionary programs and the way the case is presented to the prosecutor can all affect the ultimate result.
Here, we were able to intervene before our client ever appeared in Superior Court, obtain a remand of the fourth-degree charge to Municipal Court, negotiate a plea to a lesser offense and obtain her admission into the Conditional Dismissal Program.
After successfully completing the program, she avoided a criminal conviction.
If you have been stopped for shoplifting at Target or another New Jersey retailer, do not assume that the case is necessarily limited to what happened on the day you were stopped. Loss prevention may have preserved surveillance or other evidence relating to prior visits.
And even when the evidence is strong, a criminal conviction is not necessarily inevitable.
Every case is different. The amount involved, prior criminal history, surveillance evidence, statements made to loss prevention or police, and whether multiple incidents are alleged can all affect the available defenses and possible resolutions.
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