Shoplifting defenses 2C:20-11 NJ

The state must prove the Defendant had the
“knowing” intent to commit a criminal act in a shoplifting case.

The defendant was not aware that there was a
criminal act being committed.

  NJSA 2C: 4-2.  Evidence of mental
disease or defect admissible when relevant to element of the offense. 

    Evidence that the defendant suffered from a mental
disease or defect is admissible whenever it is relevant to prove that the
defendant did not have a state of mind, which is an element of the
offense.  In the absence of such evidence, it may be presumed that the
defendant had no mental disease or defect, which would negate a state of mind,
which is an element of the offense.

The NJ Model Jury charges set forth the elements
of SHOPLIFTING [CONCEALMENT]

(N.J.S.A. 2C: 20-11b(2))

The statute provides in pertinent part that it
is a crime for:

any person purposely to conceal upon his person or otherwise any
merchandise offered for sale by any store or other retail mercantile
establishment with the intention of depriving the merchant of the processes,
use or benefit of such merchandise or converting the same to the use of such
person without paying to the merchant the value thereof.

In order for the finder of fact to find the
defendant guilty of shoplifting, the State must prove each of the following
elements beyond a reasonable doubt:

1. that defendant purposely concealed upon his person or otherwise any
merchandise offered for sale by (name of commercial establishment);

2. that (name of commercial establishment) was a store or other retail
mercantile establishment; and

3. that defendant did so with the purpose of depriving the merchant of the
processes, use, or benefit of such merchandise [OR of converting such
merchandise to his/her use] without paying the merchant the value thereof.

The first element that the State must prove
beyond a reasonable doubt is that defendant purposely concealed upon his
person or otherwise any merchandise offered for sale by any store or other
retail establishment. The term “conceal” means to conceal merchandise so that,
although there may be some notice of its presence, it is not visible through
ordinary observation.1 The term “merchandise” means any goods, chattels,
foodstuffs or wares of any type and description, regardless of the value thereof.2

A person acts purposely with respect to the
nature of his or her conduct or a result of his conduct if it is the person's
conscious object to engage in conduct of that nature or to cause such a result.
That is, a person acts purposely if he or she means to act in a certain way or
to cause a certain result. A person acts purposely with respect to
attendant circumstances if the person is aware of the existence of such
circumstances or believes or hopes that they exist.3

1 N.J.S.A. 2C:20-11a(6).

2 N.J.S.A. 2C:20-11a(3).

3 N.J.S.A. 2C:2-2(b)(1).

Purpose is a state of mind. A state of mind is
rarely susceptible of direct proof, but must ordinarily be inferred from the
facts. Therefore, it is not necessary that the State produce witnesses to
testify that an accused said he/she had a certain state of mind when he/she
engaged in a particular act. It is within the fact finder’s power to find that
such proof has been furnished beyond a reasonable doubt by inference, which may
arise from the nature of his/her acts and his/her conduct, and from all he/she
said and did at the particular time and place, and from all of the surrounding
circumstances.

…..

The third element that the State must prove
beyond a reasonable doubt is that defendant acted with the purpose of depriving
the merchant of the processes, use or benefit of such merchandise [OR
converting such merchandise to his/her use] without paying the merchant the
value of the merchandise.

WHEN OFFENSE CHARGED REQUIRES A PURPOSEFUL OR KNOWING STATE OF MIND,
CONTINUE CHARGE AS FOLLOWS:

 Although the statute refers to mistake of
fact or law as a “defense,” caselaw makes it clear that it is not genuinely a
defense at all: instead, it is “an attack on the prosecution’s ability to prove
the requisite mental state for at least one objective element of the crime.” State
v. Sexton, 160 N.J. 93, 99-100 (1999). Since it is obviously
impossible for any single charge to “explain precisely how the offered defense
plays into the element[s]” of every possible offense that mistake of fact or
law could apply to (Sexton, 160 N.J. at 106), and at best can
offer “a more general charge on the subject” of mistake of fact or law (State
v. Pena, 178 N.J. 297, 319 (2004)), this model charge is organized
by reference to the state of mind under N.J.S.A. 2C:2-2b contained in
the offense charged by the State, and then by the degree to which the mistake
of fact or law exonerates or mitigates the defendant’s guilt. As always, the
trial court must tailor the precise type of mistake that defendant relies on to
the facts of the particular crime or offense charged and the facts adduced at
trial. State v. Concepcion, 111 N.J. 373, 379-380 (1988).

2 Since even an unreasonable mistake can negate the required state of mind
for the charged offense, the statutory requirement that the defendant
“reasonably arrived at the conclusion underlying the mistake” was eliminated
and, therefore, is not referred to in this model charge. Sexton, 160 N.J.
at 105; Pena, 178 N.J. at 306.

3 Sexton, 160 N.J. at 100; Pena, 178 N.J. at 306.

STATE OF MIND

         
Purpose/knowledge/intent/recklessness/negligence is/are condition(s) of the
mind, which cannot be seen and can only be determined by inferences from
conduct, words or acts.

          A state of mind is
rarely susceptible of direct proof, but must ordinarily be inferred from the
facts.  It is the fact finder’s job to find that such proof has been
furnished beyond a reasonable doubt by inference, which may arise from the
nature of his/her acts and his/her conduct, and from all he/she said and did at
the particular time and place, and from all of the surrounding circumstances.

PRESUMPTION OF INNOCENCE

         
This defendant(s), as are all defendants in criminal cases, is presumed to be
innocent until proven guilty beyond a reasonable doubt.

REASONABLE
DOUBT

         
The prosecution must prove its case by more than a mere preponderance of the
evidence, yet not necessarily to an absolute certainty.

The
State has the burden of proving the defendant guilty beyond a reasonable
doubt. 

         
A reasonable doubt is an honest and reasonable uncertainty in your minds about
the guilt of the defendant after you have given full and impartial
consideration to all of the evidence. A reasonable doubt may arise from the
evidence itself or from a lack of evidence. It is a doubt that a reasonable
person hearing the same evidence would have.

Proof beyond a reasonable doubt is proof, for example, that leaves you
firmly convinced of the defendant's guilt. In this world, we know very few
things with absolute certainty. In criminal cases the law does not require
proof that overcomes every possible doubt.

2C:20-11 b.Shoplifting.  Shoplifting shall consist of any one or
more of the following acts:


(1) For any person purposely to take possession of, carry away, transfer or
cause to be carried away or transferred, any merchandise displayed, held,
stored or offered for sale by any store or other retail mercantile
establishment with the intention of depriving the merchant of the possession,
use or benefit of such merchandise or converting the same to the use of such
person without paying to the merchant the full retail value thereof.



(2) For any person purposely to conceal upon his person or otherwise any
merchandise offered for sale by any store or other retail mercantile
establishment with the intention of depriving the merchant of the processes,
use or benefit of such merchandise or converting the same to the use of such
person without paying to the merchant the value thereof.



(3) For any person purposely to alter, transfer or remove any label, price
tag or marking indicia of value or any other markings which aid in determining
value affixed to any merchandise displayed, held, stored or offered for sale by
any store or other retail mercantile establishment and to attempt to purchase
such merchandise personally or in consort with another at less than the full
retail value with the intention of depriving the merchant of all or some part
of the value thereof.



(4) For any person purposely to transfer any merchandise displayed, held,
stored or offered for sale by any store or other retail merchandise
establishment from the container in or on which the same shall be displayed to
any other container with intent to deprive the merchant of all or some part of
the retail value thereof.



(5 )For any person purposely to under-ring with the intention of depriving
the merchant of the full retail value thereof.



(6 )For any person purposely to remove a shopping cart from the premises
of a store or other retail mercantile establishment without the consent of
the  merchant given at the time of such removal with the intention of
permanently depriving the merchant of the possession, use or benefit of such
cart.



c.Gradation. 

Shoplifting constitutes a crime of the second degree under subsection b. of
this section if the full retail value of the merchandise is  $75,000 or
more, or the offense is committed in furtherance of or in conjunction with an
organized retail theft enterprise and the full retail value of the merchandise
is $1,000 or more. 



(2) Shoplifting constitutes a crime of the third degree under subsection
b. of this section if the full retail value of the merchandise exceeds $500 but
is less than  $75,000, or the offense is committed in furtherance of or in
conjunction with an organized retail theft enterprise and the full retail value
of the merchandise is less than $1,000.



(3) Shoplifting constitutes a crime of the fourth degree under subsection
b. of this section if the full retail value of the merchandise is at least $200
but does not exceed $500.



(4) Shoplifting is a disorderly persons offense under subsection b. of this
section if the full retail value of the merchandise is less than $200.



        The value of the merchandise
involved in a violation of this section may be aggregated in determining the
grade of the offense where the acts or conduct constituting a violation were
committed pursuant to one scheme or course of conduct, whether from the same
person or several persons, or were committed in furtherance of or in
conjunction with an organized retail theft enterprise.



Additionally, notwithstanding the term of
imprisonment provided in N.J.S.2C:43-6 or 2C:43-8, any person convicted of a
shoplifting offense shall be sentenced to perform community service as
follows:  for a first offense, at least ten days of community
service;  for a second offense, at least 15 days of community
service;  and for a third or subsequent offense, a maximum of 25 days of
community service and any person convicted of a third or subsequent shoplifting
offense shall serve a minimum term of imprisonment of not less than 90 days.



d. Presumptions.  Any person purposely
concealing uppercased merchandise of any store or other retail mercantile
establishment, either on the premises or outside the premises of such store or
other retail mercantile establishment, shall be prima facie presumed to have so
concealed such merchandise with the intention of depriving the merchant of the
possession, use or benefit of such merchandise without paying the full retail
value thereof, and the finding of such merchandise concealed upon the person or
among the belongings of such person shall be prima facie evidence of purposeful
concealment; and if such person conceals, or causes to be concealed, such
merchandise upon the person or among the belongings of another, the finding of
the same shall also be prima facie evidence of willful concealment on the part
of the person so concealing such merchandise.