Mitigating Factors That An Attorney May Utilize To Have Theft Charges Dropped Or Reduced

Interviewer: Are there any defenses you can raise as an attorney that would help get a case knocked down – maybe from an indictable to maybe a disorderly person’s offense or something?

Ben Kelsen: The core of knocking it down from an indictable offense to a disorderly person’s offense is usually done by the county prosecutor, and sometimes we can liaison with the county prosecutor if we can convince them to send it back. The defenses that we generally use – and some of the stores are better than others – the first one is that the store actually has to show up. Usually because the police officers have not actually witnessed anything, they’re not witnesses. Therefore the witness is the law prevention officer from the store. If the law prevention officer from the store, or a representative from the store doesn’t show up in court, that’s going to be our first line of defense.

It Is Imperative That a Store Has Proper Documentation and Discovery In Order To Prove That an Individual Was Attempting to Shoplift

The second is going to be: have they prepared their documentation and their discovery properly to be able to show and prove a case, and present a case to the court, that the individual was attempting to commit shoplifting or theft. If that happens, then other defenses that we will try to show are: can you prove the intent? What makes you think that this was something that was not done by accident versus anything else? And sometimes we can make a plea bargain where instead of saying shoplifting, which obviously is going to have terrible repercussions on a criminal record – especially with the economy being the way it is right now – because if you’re trying to get a job in retail, or anything that’s involving some level of responsibility, is going to have very hard time getting a job if people think that they got to watch them to make sure they’re not stealing stuff out of the register, or supplies or whatever.

Occasionally Defense Attorneys Are Able to Negotiate Charges With the Prosecutors to a Petty Disorderly Person’s Offense

But sometimes we’re able to negotiate with the prosecutors to either a petty disorderly person’s offense or basically just like a petty misdemeanor of causing a disturbance, or even a municipal ordinance of causing a disturbance. Which basically means that we would say that on such and such a day, you caused a law prevention officer or store personnel to have to go out of their normal routine to come and deal with you at some faction. And is that what occurred? Yes that’s what occurred. And that we’re able to do on occasions. And sometimes – depending on the court, depending on the situation – that’s actually not a bad resolution. Because a person looks at that and says, ‘what happened?’ and I tell my clients, you just be straight up and honest right? My kid was having a meltdown, I’m leaving the store, I didn’t know that there was a set of Elmo pajamas still on top of the stroller underneath the baby’s blanket, we gave it back, and that was it. And I got into an argument with the store guard about what are you bothering mother with kids for. Which is the truth. So that’s what we’re sometimes able to do.

The Stores Need To Make Sure That The Individual Accused of Shoplifting Was Within View At All Times

As far as the defense, we need to make sure that they were within view at all times, that they were seen taking the stuff or trying to hide the stuff somewhere, or that there was a very high likelihood of that. For example we’re not allowed to put cameras in dressing rooms, so if for example a person was to go into dressing room with their hands full of stuff, and come out of the dressing room ten minutes later with nothing in their hand, and the clerk can say into the dressing room and there was no clothing left in the dressing room, and then the alarm was triggered when they tried to get out of the store, or they were found wearing four layers of clothing, that causes a problem. But if they go into a dressing room with a whole bunch of stuff, and they came out with a bunch of stuff, and there’s one item that you can’t see on the video, that may be a defense that we can use.