Is Sales Tax a Factor in Your Shoplifting Sentence in NJ?

Sales Tax Not a Factor in Your NJ Shoplifting Sentence, Appellate Court Says

Sales Tax Impact on Shoplifting Sentencing in New Jersey How does sales tax relate to charging decisions for shoplifting offenses?

The Superior Court of New Jersey, Appellate Division, decided that a court may not include sales tax in the value of shoplifted goods for grading and sentencing purposes. In State of New Jersey vs. Eric A. Burnham, A-3519-20, the Appellate Court reviewed a Superior Court sentencing based on two shoplifting incidents, one deemed a third degree crime and the other a fourth degree crime. Underlying the issue is the grading for shoplifting depends upon the value of the stolen merchandise, and the difference between a third and fourth degree crime is significant. In this case, one penny made the difference between a possible 18 months in prison rather than 5 years.

The Case that Raised the Issue of Sales Tax for Shoplifted Goods

The facts before the Superior Court were that Burnham shoplifted a PlayStation 4 priced at $299.99 and then a week later shoplifted an Xbox One worth $499.99. The defendant pled guilty to fourth degree shoplifting for the PlayStation 4 and third degree shoplifting for the Xbox One. New Jersey law grades shoplifting items valued between $200.00 and $500.00 as a fourth degree crime and those valued between $500.00 and $75,000.00 as a third degree crime. Fourth degree crimes carry a penalty of up to 18 months in jail, and third degree convictions can result in between three and five years in prison.

The Superior Court sentenced the defendant to two back-to-back 90-day jail terms and two consecutive three-year probation terms. Burnham filed an appeal contending that N.J.S.A. 2C:20-11(c) does not include sales tax when grading shoplifting, so his third degree conviction of the $499.99 item should be a fourth, not third degree crime. Burnham demanded that the trial court amend the judgment to reflect the second fourth degree conviction and resentence the defendant as a fourth degree offender with a mitigating factor. The prosecution countered with the defendant’s waiver to contest the third degree charge since he pled guilty to it, his sentence was not excessive, and he did not raise the mitigating factor (14) before the appeal.

The Appellate Division considered whether sales tax is part of the “full retail value” of an item for grading a shoplifting offense, according to N.J.S.A. 2C:20-11(c). Taking note of the defendant’s failure to move the trial court to vacate his plea nor raise the mitigating factor, the Appellate Court ruled on a plain error standard, which allows an Appellate Court to consider only errors that would likely produce an unjust result.

The court then defined the statute’s language of “full retail value” as the merchant’s price at the time of the shoplifting act. But since the shoplifting law does not mention sales tax as a component of the price, but theft laws do, the court determined that the statute’s plain language means the total retail value does not include taxes. Otherwise, the legislature would have contained the language in the law, as it did for the theft statute.

How does the value of the shoplifted items, not including the sales tax, impact sentencing for those convicted of shoplifting?

The case has a bearing on shoplifting cases going forward, especially regarding sentencing and jurisdiction. Courts consider a third degree crime as more severe than a fourth degree crime, so their sentencing reflects the gravity of the crime. The distinction between lower and third degree charges is considerable in terms of fines and prison terms.

Also, the pre-tax value of goods may make the difference between a third and second degree shoplifting crime for purposes of a diversionary program instead of prison for first-time offenders. Pre-Trial Intervention for shoplifting is typically unavailable to those charged with second degree crimes. So, if you face shoplifting charges, contact a skilled shoplifting defense attorney at The Tormey Law Firm who can review your case to determine if we can get your charge downgraded to a lesser offense or get approval for you to enter PTI for a higher degree theft crime. In that way, you may apply for diversionary programs in Superior or Municipal Court and avoid a conviction on your record that can limit your career, housing, and educational options.

Can sales tax mean the difference between Municipal Court and Superior Court in a shoplifting case?

A penny difference in the retail price of an item made the difference between crime grade levels in Superior Court. The same may be true between Superior and Municipal Court jurisdiction. Shoplifting merchandise worth under $200.00 is a disorderly persons offense that the Municipal Court judge decides. The offense is regarded as less severe than an indictable offense, so the untaxed value of merchandise can mean the difference between a disorderly persons offense and an indictable offense. The punishment for a disorderly persons offense is maximally six months in jail and up to $1,000.00 in fines, which is a far cry from a potential 18 months in prison and a $10,000.00 fine for the lowest crime grade in Superior Court.

How does New Jersey sales tax affect aggregated shoplifting offenses based on multiple stealing incidents?

The state commonly prosecutes individuals based on multiple shoplifting charges. An individual may face charges for a single incident, but people often shoplift numerous times, whether as a habit, occupation, or contributor to a larger shoplifting criminal enterprise. Shoplifters admit to being caught once for every 49 times they steal. And with retail stores staffing fewer people in stores, the opportunity to steal is greater. As such, the more significant impact of the Burnham case is on sentencing a convicted shoplifter for multiple incidents of varying values of stolen goods. Now, judges must include lesser shoplifting offenses into greater ones to minimize longer, consecutive sentences for each shoplifting incident.

Why is a criminal defense lawyer crucial if you want the lowest possible sentence in a shoplifting case?

The effect of Burnham on shoplifting defendants is significant. Defendants negotiating pleas with prosecutors now have clear direction on the various crime grading. The value of stolen goods is the merchant’s stated or advertised price, which determines the grade for single and aggregate items. An informed defendant with counsel present will not agree, as Burnham did, to higher crime grades than what the math pencils out to be in pre-tax numbers. Shoplifting defendants may receive lower sentences and serve shorter, non-consecutive sentences. They may also face disorderly persons offenses in municipal court more often for stolen merchandise valued up to $199.99.

A defendant without an attorney may not know the importance of the Burnham case for their defense options. However, an educated criminal defense attorney can take on the prosecution in plea bargain negotiations or at trial since we know the laws, the elements of shoplifting crimes that prosecution must prove, and how to employ every defense option in a shoplifting case to get the best outcome. We also understand how to leverage the law in our client’s favor when arguing for a lighter sentence before a judge and presenting all of the mitigating factors that hold a defendant in a more favorable light.

Whether you can get into Pre-Trial Intervention, obtain a lesser sentence, or achieve an outright dismissal in your shoplifting case is difficult to determine without a knowledge criminal defense lawyer examining the unique aspects and avenues that may be available to you. Call our offices to speak with Travis J. Tormey or another member of the defense team at The Tormey Law Firm. We provide free consultations 24/7 by contacting us online or at (201)-556-1570.


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