Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

“I HAVE BEEN ACCUSED OF LARCENY…AM I GOING TO JAIL?”

Earlier this week, Attorney Sam’s Take began a discussion about facing criminal charges for shoplifting. Allegations of shoplifting still confuse some people. They wonder whether it is the type of charge for which the accused is likely to face jail time. Others figure that shoplifting is known to be a crime of desperation and so charges for it are likely to be instantly dismissed.

Well, as you have no doubt learned from this daily criminal law blog, it depends. Every case is different. However, it would be a mistake to assume that a charge of shoplifting is likely to be instantly dismissed because it is a crime of “desperation”.

The old idea of a starving man stealing a loaf of bread to feed his poor family is no longer they typical case of shoplifting. More often, it is the theft of certain clothing, jewelry or electronics. Further, many such cases are not particularly spontaneous. Often, trickery with receipts and returns are involved. They all fall under the same heading of “larceny“. Shoplifting is but a sub-category of such theft crimes.

The criminal statutes involved divide the severity of the crime by how much is stolen. Steal something worth very little and it is hard to imagine your facing jail time. Steal something very valuable, or do it several times, and you may well be facing jail time.

That is not the whole story of what you are facing, however.

The surrounding circumstances of the defendant are usually taken into account in these cases. For example, if you are in your twenties and you have absolutely no criminal record, then, at worst, you are looking at some kind of probation. You may also be able to escape a criminal conviction if all goes well. However, if you have a lengthy record, much of which is dedicated to theft, you are more likely looking at incarceration.

As we discussed previously, you will most likely be invited to court proceedings by way of a summons to a Clerk Magistrate’s Hearing. If, however, you have been arrested at the scene, then this will not be the case. The same may be true (depending on the clerk) if the charge is a felony, the dividing line for which is $250 worth of stolen property. In the latter case, you will more likely receive a summons for an arraignment.

Again, if you are scheduled for an arraignment, it means that the criminal complaint against you has already been issued. You must show up at arraignment or a warrant will be issued for your arrest to bring you to court.

In either case, my advice is the same…retain the services of an experienced criminal defense attorney as soon as possible. We discussed previously what the lawyer can do for you at the clerk’s hearing. If that judicial ship has sailed however, having the lawyer approach the prosecution at the earliest possible moment may not only get you a better result, but may also get you that result faster. If you are really lucky, perhaps you can even get the case dismissed PRIOR to arraignment, thereby saving your record from having to house the ugly reflection of the criminal charge in the first place.

“Sam, if I have a lawyer go with me to a scheduled clerk’s hearing, can I definitely get the matter dismissed before a criminal complaint issues?”

No, because there are no guarantees. However, I will tell you that we have been very successful at getting at result. Of course, this has usually been for clients who were wise to hire us prior to the scheduled hearing. When hired the day before the hearing it is difficult to get the “head start” that is often necessary in order to obtain that result.

I would say that the timing of retaining counsel is important in any criminal matter. As I have discussed in many previous blogs, there are ways in which a defense attorney can help you even before criminal charges actually come.

Perhaps this is a subject worth returning to next week. We will also cover what you should do, particularly in cases like larceny, when you are accused on the spot and have not had notice nor time to retain a lawyer.

Until then, have a great, safe and law-abiding weekend!

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