Travis J. Tormey recently represented a client who was charged with shoplifting in violation of N.J.S.A. 2C:20-11 which provides in pertinent part:

b. Shoplifting. Shoplifting shall consist of any one or more of the following acts:

(1) For any person purposely to take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof.

(2) 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.

(3) For any person purposely to alter, transfer or remove any label, price tag or marking indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment and to attempt to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of all or some part of the value thereof.

(4) For any person purposely to transfer any merchandise displayed, held, stored or offered for sale by any store or other retail merchandise establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the retail value thereof.

(5) For any person purposely to under-ring with the intention of depriving the merchant of the full retail value thereof.

(6) For any person purposely to remove a shopping cart from the premises of a store or other retail mercantile establishment without the consent of the merchant given at the time of such removal with the intention of permanently depriving the merchant of the possession, use or benefit of such cart.

This was the defendant’s first shoplifting charge and she had no prior criminal record. Also, the defendant suffers from bipolar disorder and is under the care of a physician. Our criminal trial team obtained a letter from her treating physician stating that the defendant’s medication was recently changed (at the time of the alleged shoplifting offense) and that she was suffering from a manic episode at the time of the alleged shoplifting charge. The doctor was prepared to testify as an expert for the defense that she was suffering from a manic episode and was not in the proper state of mind to understand the nature or consequences of her actions.

Based on this expert report and potential expert testimony, the prosecutor agreed to dismiss the shoplifting charge because he could not prove the shoplifting offense beyond a reasonable doubt. The mens rea or “state of mind” element of the charge could not be established based on the defendant’s medical condition and the expert testimony of her treating physician.