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Defenses to Shoplifting in New York

Shoplifting is a criminal offense in New York, and depending on the value of the property taken, can be charged as a misdemeanor or a felony.

If you are accused of shoplifting, your shoplifting attorney can some defenses, depending on the specific circumstances of your case. Below are some defenses which may or may not be applicable. Your shoplifting attorney will know which defenses can be used, depending on the circumstances of your case.

Lack of Intent

Shoplifting requires the intent to take the merchandise and deprive the store owner of its merchandise without paying for it or paying less for it.

New York courts have adopted the “wholly inconsistent standard” in determining whether shoplifting has been committed. The “wholly inconsistent standard” requests the court to determine whether the actions of the alleged shoplifter is inconsistent with the owner’s continued rights.

For example, did the alleged shoplifter conceal goods under his clothing or in a container? In a self-service store, this act may be considered – not in accord with a prospective purchaser but – an exercise of complete dominion and control over the goods, which is wholly inconsistent with the store owner’s rights. Even if the alleged shoplifter has not yet exited the store, this act of concealing the merchandise in his body or in a container may be construed as shoplifting.

Other unusual behavior may be considered, such as abandoning one’s clothing in exchange for the concealed goods. The alleged shoplifter’s proximity to the exit and whether the cashier’s area has been passed without paying can be indicative of shoplifting. Also relevant is whether the alleged shoplifter was in possession of a shoplifting device such as a hook detacher that unlocks security tags or “sensormatic jammers” and “RF-impulse shielding fabrics” that block security devices from determining whether merchandise was taken.

Any one or combination of these factors may be significant in determining whether the alleged shoplifter had intent to deprive the storeowner of the value of his merchandise.


Mistake is a valid defense against shoplifting. Mistake occurs when the merchandise was accidentally taken or the alleged shoplifter believed that he paid for the merchandise.

For example, when the shopper paid for everything except one thing which was left in the cart, even if the shopper put all the paid groceries in the cart and exited the store with the cart in order to load the groceries in the car, there can be a defense of mistake because the shopper had no intention to leave the retail establishment without paying for that particular item.


At times, you might be under the impression that you had the retail establishment’s consent to take the merchandise without paying for it. For example, if you though the merchandise was part of the free samples being handed out in the grocery store, you may have defense against shoplifting under consent. In practice, however, consent is not often used as a defense in shoplifting.

Duress or Coercion

Duress or coercion is a legal defense available in all criminal cases. When you have been forced to shoplift by someone else and under a physical or moral compulsion to do so under threat of force, you may have a valid defense against the charge of shoplifting.

For example, if you were forced to shoplift by someone who was holding a gun to your head or a knife at your back, you could claim duress or coercion.

Unlawful Search and Seizure

Unlawful search and seizure is a constitutional defense which can only be used against government officials, such as the police. If evidence was obtained by the government through an unlawful search or seizure, that evidence is inadmissible in court.

For example, if the shoplifted property was not even found in your person when store personnel stopped you and you were turned over to the police under a custodial investigation who extorted a confession or admission from you without reading you your Miranda rights, that confession or admission is inadmissible in court. Your guilt in shoplifting must be proven using evidence that excludes the illegally obtained confession or admission.

Above defenses are not applicable in all cases. Some may be applicable to others, while the other defenses may not. An experienced shoplifting attorney will be able to tell you which defense you can use in your case.

Assuming that you actually shoplifted and don’t have strong defenses to your case, an experienced shoplifting attorney will be able to negotiate a plea bargain in your behalf depending on the unique circumstances of your case, such as your past criminal record and your conduct when you were caught shoplifting. To know more about your plea bargaining options, click here: (Plea Bargaining Options in a Shoplifting Charge).

If are being accused of shoplifting, you need to consult with a shoplifting defense attorney immediately. You need to have your legal defense and strategy in place at the earliest possible time because a conviction in shoplifting can cause you have to have a criminal record, loss of immigration status (if applicable), failure to obtain employment, failure to be eligible for federal aid, and suspension or loss of a professional license. Should you need assistance in defending a shoplifting charge, the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY, and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.