Situations In Which The Potential Penalties For a Theft Charge May Be Aggravated

Interviewer: Do any of these crimes have harsher punishments than others? Or are they kind of all the same standard?

Ben Kelsen: In certain situations, they punish much harsher. I mean if it’s a person who is a public official who’s in a position of public trust, that person will face a very serious penalty. The prosecutor who was taking just a small amount of money to be able – you know not even to do something that they would have done otherwise. They didn’t dismiss anything, they didn’t let anybody skid on anything, and ended up still going to prison. As opposed to the clerk who worked for one of the municipalities, got probation. There was a violation, it wasn’t good, nobody’s happy about it, but there wasn’t a violation of the public trust to the same extent of this other individual.

Defending An Individual Accused of Violating Public Trust

Interviewer: In these cases, what kind of defenses can you raise? Are these usually cut and dry because someone’s represented by an attorney, will they get less of a penalty or is it – I mean how do these cases usually get resolved?

Ben Kelsen: A lot of it depends on whether or not restitution can be made or not, and a lot of it depends on what we call the sentencing. In any type of a criminal matter, there are aggravating facts and mitigating facts. And generally what’s supposed to happen is that we’re supposed to weigh the aggravating factors against the mitigating factors. So for example, if one of the aggravating factors is the need to deter others – violation of public trust, causing harm to others, things like that; that could be an aggravating factor. A mitigating factor could be a person was overcome because they had some foreclosure, their mother needed a kidney transplant, they’re very sorry it’s a first offense, they’ve made restitution.

Retaining an Attorney to Defend Theft Charges Can be Helpful on Several Levels

So having an attorney who knows the system and knows what to do will be helpful on several levels. First of all, they’ll make sure that they actually have a solid case. The mere fact that a person’s been accused doesn’t mean that they actually committed a crime. The fact that a person – for example let’s say, a theft of services case – the fact that a person was not able to get the money together, in order to be able to pay somebody back within ten days on a check that bounced, it was not their intention to have it bounced. They didn’t know that the check  would’ve bounced – and the fact that they suddenly can’t do it in ten days, they may not have had the criminal intent necessary to be able to be found guilty of theft of services – or theft by deception for that matter. It may be that there’s not enough of a connection. It may be that nobody actually saw the individual taking money out of the till. I had a client who was once charged with taking inventory from the store and selling it on the street.

There’s no camera that showed it, there’s nobody who saw him do it, they only know it’s true on a superficial level that the person had the opportunity to do so. In theory he could have had a motive because he needed to be able to make some extra money and he looked like he had more – in theory he should have had, based simply on his income, that he was having difficulty explaining – but those were all very, very superficial things. And that’s circumstantial evidence you know, they don’t have him red-handed, they don’t have the money, they don’t have dollar bills with special ink on them. So under such a circumstance, with a good attorney, you may be able to get out of that.

Most People Refrain From Trial Because Of The Risk Associated With It

The caveat to that is that most people don’t want to do a trial because the risk of a trial is too great. And so that’s why so many cases end up settling. A good attorney will know when to settle, when to fold, and when to play. When to advise a client to give it a shot. Frequently we tell our clients – or I tell my clients – ‘you have to weigh your options’. And the options could be – if you say for example, we have in New Jersey now a new program called conditional dismissal.

So that means that you admit to having stolen something, and then they’ll put you on a diversionary program for a year. And after a year if you haven’t done anything else wrong, they’ll dismiss all the charges. So I may say to somebody, ‘Listen you know what? You’ve never done anything wrong before in your life, you’re not going to do anything wrong again we hope, take the diversionary program, admit what you did and then let’s move on’, because the risk of going to trial and losing, is that you could be looking at a conviction of theft on your record, or if it’s an indictable offense you could be looking at jail time or who knows what. And so an experienced attorney will be able to help the client weigh the options, and advise them and counsel them as far as the proper tests take, and the proper tactics take, in any particular case.