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  1. #1

    Question Forgot to Scan Items

    My question involves criminal law for the state of: New york

    Due to several circumstances (stress, daughter acting up, scanner acting up after every single item and coupon, items were the only ones in the "child seat" and not in the main cart area, covered by our coats) and personal reasons (not feeling well, severe ADD and Anziety disorder) I forgot to scan some items at the self scanner at Shoprite and didn't realize it until the security guard stopped me. Despite all efforts of trying to explain to him that it was an honest mistake and why I forgot to scan them he blew off everything I said and kept threatening to call police if I "kept lying to him"
    After almost 1h in the security room I gave up and said do what you have to", signed whatever paper he presented just to get back to my daughter whom I was not permitted to check on and was outside the door immediately by the outside exit door by herself and as she later told me "crying her eyes out". I should add that the guard passed her twice when he left to make copy of my license and did not tell me she was crying, even said "she's fine" and seemed bothered by my concern for her.

    Now I receive a letter from a Retail Recovery Service asking me to pay $106.35 within 30 days which I not only do not have, but don't think is right as the value of said items was stated to be $21.27 when I would've paid only slightly more than $10 w/ my shopper's card.

    What do I do? I want to write to the store about how I was treated and to ensure them it was an honest mistake offering written confirmation by therapist and/or physician. Or do I write to the Recovery Service or both?

  2. #2
    Join Date
    Jan 2008
    Location
    Toledo, OH
    Posts
    16,307

    Default Re: Forgot to Scan Items

    What do I do?
    You scrape up the money and you pay it, or run the risk of having criminal charges levied against you, in addition to the $106. That will come with fines, court costs, possibly diversion classes (which you would have to pay for), probation...and a criminal record.

    What you've received is a Civil Demand. In many states, you can be asked to pay the maximum allowable by law, even if you only stole a Chapstick and that maximum is usually $500 or more.

    New York is a little kinder, and only allows five times the retail value of the item taken or $75, whichever is greater, with a maximum allowable of $500.

    Here's the statute:

    11-105. Larceny in mercantile establishments.
    1. When used in this section, the term "mercantile establishment" shall mean a place or vehicle where goods, wares or merchandise are offered for sale or a place or vehicle from which deliveries of goods, wares or merchandise are made.
    2. When used in this section, the term "larceny" is an act heretofore
    defined or known as common law larceny by trespassory taking as defined
    in paragraph (a) of subdivision two of section 155.05 of the penal law
    committed against the property of a mercantile establishment.
    3. When used in this section, the term "emancipated minor" shall mean
    a person who was over the age of sixteen at the time of the alleged
    larceny and who was no longer a dependent of or in the custody of a
    parent or legal guardian.
    4. In any proceeding brought under this section the burden of proof
    shall be by a preponderance of the evidence.
    5. An adult or emancipated minor who commits larceny against the
    property of a mercantile establishment shall be civilly liable to the
    operator of such establishment in an amount consisting of:
    (a) the retail price of the merchandise if not recovered in
    merchantable condition up to an amount not to exceed fifteen hundred
    dollars; plus
    (b) a penalty not to exceed the greater of five times the retail price
    of the merchandise or seventy-five dollars; provided, however, that in
    no event shall such penalty exceed five hundred dollars.
    6. Parents or legal guardians of an unemancipated minor shall be
    civilly liable for said minor who commits larceny against the property
    of a mercantile establishment to the operator of such establishment in
    an amount consisting of:
    (a) the retail price of the merchandise if not recovered in
    merchantable condition up to an amount not to exceed fifteen hundred
    dollars; plus
    (b) a penalty not to exceed the greater of five times the retail price
    of the merchandise or seventy-five dollars; provided, however, that in
    no event shall such penalty exceed five hundred dollars.

    7. A conviction or a plea of guilty for committing larceny is not a
    prerequisite to the bringing of a civil suit, obtaining a judgment, or
    collecting that judgment under this section.
    8. The fact that an operator of a mercantile establishment may bring
    an action against an individual as provided in this section shall not
    limit the right of such merchant to demand, orally or in writing, that a
    person who is liable for damages and penalties under this section remit
    the damages and penalties prior to the commencement of any legal action.
    9. In any action brought under subdivision six of this section, the
    court shall consider in the interest of justice mitigating circumstances
    that bear directly upon the actions of the parent or legal guardian in
    supervising the unemancipated minor who committed the larceny.
    10. An action for recovery of damages and penalties under this section
    may be brought in any court of competent jurisdiction.
    11. The provisions of this section shall not be construed to prohibit
    or limit any other cause of action which an operator of a mercantile
    establishment may have against a person who unlawfully takes merchandise
    from the mercantile establishment.
    12. Any testimony or statements of the defendant or unemancipated
    minor child of the defendant or any evidence derived from an attempt to
    reach a civil settlement or from a civil proceeding brought under this
    section shall be inadmissible in any other court proceeding relating to
    such larceny.
    Notice that it says "retail value", not "price after discounts". What you would have paid with your shopper's card is completely irrelevant. The law goes by shelf price.

    Similarly, your stress, kids, medical conditions, state of mind - all irrelevant. ADD, anxiety disorder, stress, jumpy kids and a crappy scanner are not defenses to shoplifting, and a letter from your therapist is not going to make a difference.

    If you really and truly cannot scrape up the $106 in 30 days, it would be in your best interests to try to make payment arrangements with the company. Failure to do so could have much nastier consequences for you.

  3. #3

    Default Re: Forgot to Scan Items

    How old was your daughter at the time of this incident?

  4. #4

    Question Re: Forgot to Scan Items

    So writing the store hoping for show of good faith and understanding would be pointless?
    I have to admit to something I am not guilty of?

  5. #5
    Join Date
    Jan 2008
    Location
    Toledo, OH
    Posts
    16,307

    Default Re: Forgot to Scan Items

    So writing the store hoping for show of good faith and understanding would be pointless?
    Unless you're such a regular customer that the manager knows you and the cashiers call you by your first name, yes, it would likely be pointless. And even then, it may well be a matter of policy.

    I have to admit to something I am not guilty of?
    Except...in the eyes of the law, you are guilty. It doesn't matter that it was accidental.

    If they gave a pass to everyone who said "it was an accident", no one would ever be prosecuted. EVERYONE claims "accident", even the guy my husband busted last week trying to shove a really expensive "male supplement" down the front of his pants!

    So if you conceal merchandise, even by accident, you get nabbed and sometimes even taken to court.

    On the bright side, payment of the Civil Demand is usually the end of it. No record, no charges, no additional fines or court costs.

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