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Defense to Shoplifting at Macys

The defendant may not be 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 persons 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 finders 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 prosecutions 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 defendants 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 finders 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 defendants 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.


Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year
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Kenneth Vercammens Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.

Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutors Association.

Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Dont give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.

When your job or drivers license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.

Our website www.NJLaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.

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Ken Vercammen articles

Ken Vercammens Resume Directions to Ken Vercammen and Associates



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