The Tao Shoplifting Crisis

THE TAO

SHOPLIFTING CRISIS

Canarsie House 2009

Copyright © 2009 by Tao Lin and Richard Grayson.

All rights reserved.

Printed in the United States of America.

Canarsie House P.O. Box 6969 Brooklyn, New York 11236

First Edition

10 9 8 7 6 5 4 3 2 1

For Dov Charney

Tao Lin < [email protected]> wrote:

hi richard,

can you give me a little legal advice? i got arrested from american apparel about a week ago and have a court date, 9/11. i just have some small questions.

thank you,

tao

On 8/27/07, Richard Grayson <[email protected] > wrote:

Hi Tao,

Yes, I will answer any questions you ask. But I have to tell you legally that my advice is only that of a (somewhat) knowledgeable person, and I am only a licensed attorney in Florida so I cannot provide formal legal advice. (This is a statement I have to give so that I am not

accused of practicing law in NY State without a license.)

How can I help you?

Richard

Tao Lin <[email protected]> wrote:

hi richard. thank you.

should i say 'no contest' or 'guilty'? at american apparel i told them i had stolen from other places before. i told the undercover cops. the other cops came and said i would get community service probably. but online it says i can get jail time or a giant fine. my court date is 9/11. how do you think i should handle this in order to get community service?

tao

On 8/27/07, Richard Grayson

< [email protected] > wrote:

Tao,

First of all, I have an ethical duty -- but not only that, a legal one -- to tell you that the best thing you can do is get a lawyer. I know they cost money, but it is very important to have someone talk to the judges and prosecutor in a language they can understand. It is very, very dangerous to not have a lawyer so the first thing I would tell you is to get an attorney who routinely handles these kinds of cases. They would probably know the judge and prosecutor. See if you can get someone who can help you pay for an attorney. It is costly, but in the long run it may save you money and needless hassles. That way, if you have an attorney, she can do all the talking and you probably don't have to say anything in court. I am not

just saying that because I am a lawyer and I want to give business to other lawyers. They really do help more than I can say in these or basically any other case.

I cannot really offer advice or an answer to your question. All I can do is give you information I have to the best of my knowledge based on my general knowledge, my reading of New York statutes and consulting friends who are lawyers in NYC.

Before I can even say what the various alternatives of "no contest" or "guilty" are, I do not know what the charge is. Petit larceny? What exactly does the summons (if there is one) say? It is very important to know the charge. I assume it is petit larceny, but it could be for other things, like perhaps sometimes they just charge loitering.

I am not sure where American Apparel is, the store I mean. I assumed above that it was a store in Manhattan, but of course

they are all over the country. What county and state is the court date for? What court is it? In NYC it would probably be criminal court, but in other states it could be a different court.

I need to know the charge and the court.

By the way, I am definitely not acting as counsel, but i am treating anything I say to you in these blog posts as privileged information. That is, I will not reveal anything of this to anyone. That is what an attorney has to do, and I feel ethically that I have to tell you that. I would also ask that you do not show what I write to you to anyone although of course you are free to. Feel free to ask anyone about anything I say. I would actually prefer you to. It is unwise to rely on one person's opinion, even a nonpracticing lawyer's. Do not trust anyone who is not a practicing attorney in NYS (if it is in NYC) to tell you their advice or knowledge is the right or perfect or the only thing you need to know. Again, this is where having your

own attorney is such a great thing, because they have to put your interests before anything.

I wish you had asked for legal representation before saying anything at American Apparel. Did you speak only to store employees or also to police officers?

Is there a police report? Have you seen it? For your defense, you are entitled to a copy of it. Again, it is important to know what it says. That is probably the most important document the judge will base a decision on, unless there is some kind of statement or testimony.

Since you do know about "no contest," I am assuming you know the many disadvantages of pleading guilty. It will be on your record until you can have it expunged (and you probably need to hire a lawyer to make sure this is done right). It's very easily checkable through credit reports so you'll probably have to check yes and give details whenever you are asked on an application for a job,

loan, mortgage, sometimes apartment lease, application to school, etc. when they ask the inevitable question. Most employers I know would probably not be that concerned (except in retail) after a number of years, especially if you can explain it.

I will have to research "no contest/nolo contendere" under NYS law (again, if it is NYS) before telling you anything about that. I know a little about it but not enough to offer a totally well-informed opinion. State laws vary; I know Florida law fairly well, but things that are petit larcenies (misdemeanors) in one state can be felonies in another (most states are apparently harsher than NYS in regard to this, luckily).

There is also the option of pleading "not guilty." I don't know the circumstances of the incident. Years ago, when I was young, in NYS you had to be going out of the store with the merchandise in order to be charged with any kind of shoplifting.

The law changed in 1981 with a decision by the Court of Appeals (in NYS it's the highest court; here Supreme Court is actually the lowest (trial) court, unlike in every other state), that rejected this stance, placing greater emphasis on actions indicating intent than on whether the goods had left the store.

'Here's the major line in Chief Judge Cooke's opinion (I worked in his campaign): ''a customer who crosses the line between the limited right he or she has to deal with merchandise and the store owner's rights may be subject to prosecution for larceny.''

The court gave a number of examples of acts that could, in the proper circumstances, be viewed as evidence to support larceny charges. These included concealing merchandise under clothes or in a container, actions ''not generally expected in a self-service store.''

Also included was ''furtive or unusual behavior'' by a shopper, such as glancing

around an area while secreting merchandise or surreptitiously exchanging his own property for that in a store display.

And the court said it was relevant as well how close a customer was to a store's exit. ''Certainly it is highly probative of guilt,'' Judge Cooke wrote, ''that the customer was in posession of secreted goods just a few short steps from the door or moving in that direction.''

Finally, the court said, a device that assists in shoplifting, such as a specially designed coat or a carrying case with a false bottom, could be used in establishing larcenous intent.

But the court did not limit its guidelines to those considerations. ''So long as it bears upon the principal issue - whether the shopper exercised control wholly inconsistent with the owner's continued rights - any attending circumstance is relevant and may be taken into account.''

So you can see there are a lot of factors courts consider, as noted in the decision above. Details are important.

You may have an affirmative defense of some kind that a good attorney could use to get you off. I've gone on long enough but your question seemed to have ruled out pleading not guilty, and that is an option you might want to consider.

Again, I cannot offer you advice. I can only give you information based on the best of my knowledge and what I can find out from others. I really urge you to hire legal representation.

Two other things I say only because I know you: I have heard from a friend who does criminal law in Kings County (Brooklyn) that is really important that people charged with shoplifting show remorse. He says this can have a huge bearing on the sentence, since the judges have discretion between large fines and small ones or no fines, and numbers of hours of community service and that there is

nothing to stop a judge who is annoyed by the behavior of someone found guilty from sentencing them to jail. So your demeanor and what you say in court is important. Again, this is where a lawyer could advise you, down to what to wear at your appearance.

Last, if you can remove any references to similar incidents or the activities in general from the Internet, it would be helpful to do so. It's highly, highly unlikely that anyone will look -- to them, you are just another case, little more than a number -- but some things published online could be highly damaging (as any possible approval of the activity or urging others to engage in it).

Again, take everything I've said with a grain of salt. None of this can be construed as legal advice; I am just offering information. (It is really important I keep saying that because I need to make clear I am not practicing law without a

NYS license).

Richard


thank you for typing all that. i appreciate it very much. it was in manhattan. i am charged with 'petty larceny' and the paper i have says 'POLICE DEPARTMENT OF THE CITY OF NEW YORK / DESK APPEARANCE TICKET'

'YOU ARE HEREBY SUMMONED TO APPEAR INa THE CRIMINAL COURT OF THE CITY OF NEW YORK, TO ANSWER A CRIMINAL CHARGE MADE AGAINST YOU. TOP OFFENSE CHARGED: PL 1654000 / AT LOC : 100 CENTRE STREET'

i don't have money to get a lawyer, is there some way to get one for free?

how do i see the police report? i think there is one. i saw the guy at american apparel writing what happened.

thank you for your wisdom.



OK, a desk appearance ticket is a good sign. You are lucky to have gotten that and not to have been sent to the basement to be held for arraignment. The police have total discretion and they don't always usually give DATs so easily in Manhattan, so that may be an indication that they consider this a minor charge. You were saved about a day of torture in that horrible place. DATs are getting harder and harder to get, so consider yourself very lucky.

Now from what I know and what I've seen in NY criminal court, Legal Aid attorneys

(or sometimes 18-b's, private defense attorney appointed by the court) are assigned at arraignment. Instead of being held in jail for up to 24 hours and being arraigned and then assigned a court date, your desk appearance will serve as your arraignment.

Now it is possible that they will tell you at court that the paperwork isn't done and then they will tell you to come back at another time; I've heard this has become more common in NY County.

It's also possible that the DA's office has looked at the case and decided not to proceed. That of course is the absolute best scenario; if that happens, they'll just give you a paper and say go home and if you don't hear from us in 60 days, forget about it.

Those two things are separate; the first just means a delay; the second, that you're scot free. If you are sent away because of a delay or otherwise, make sure you sign something (they will probably do this

but just to make sure) that you appeared that day and did not miss your DAT appearance.

Here is general information about the DAT from a legal website I trust:

1. You MUST appear on the date and time ordered by the ticket, and at the location noted. Your failure to appear when and where you are directed by the Desk Appearance Ticket may result in a warrant being issued for your arrest. Once the ticket is issued to you, nobody has the power to change the date or excuse your appearance. While it is possible that an attorney might appear in your absence and make the argument to the judge to excuse your appearance for a particular reason, there is no guarantee that the judge will "understand". No attorney can guarantee how any judge will rule in such a case and your failure to appear, even if it seems eminently reasonable to you, may result in a warrant for your arrest being issued.

2. If you do not have a lawyer, remember to bring your copy of the Desk Appearance Ticket with you to Court. You will hand this to a Court Officer who will then give you further instructions (usually to sit and wait for your name to be called).

3. If you do not have a lawyer, and you believe you would qualify to have a public defender represent you, you would be well advised to bring documentation, such as tax returns, to prove your income status.

4. It is not necessary to bring witnesses to the court appearance. Witnesses are for a hearing or trial, neither of which will happen on your first appearance on a Desk Appearance Ticket. Your appearance on the record will probably last about a minute or so.

5. Get there as early as possible, especially if you do not have a lawyer and are applying for a public defender. If you get there late, and it is crowded, it

could be a very long day for you. Also, if you get there late, it is theoretically possible that the judge will issue a warrant for your arrest – not a good way to start off your case.

When you say the guy at American Apparel was writing what happened, what do you mean? Was he writing what he observed or something you said? Did you speak with a police officer about the incident? If so, did he or she give you a Miranda warning? (right to an attorney, right to remain silent, etc.)

Let me know about this and ask if you have more questions.


thank for all this information. oh good, i'm glad i got something that is a good sign. i feel grateful. maybe i can get let go without anything.

the american apparel person was writing what happened, i believe. (he probably wrote what i said, and one thing i said was that i had stolen from other stores before). it may have been for their own records, because i saw on the wall (the wall of polaroids of people who were caught) for some of them they had pieces of paper by them just stating objectively what happened. i did not speak to the officer about the incident. in the police car he just told me that i would get probably get let go the same day with a court date and then probably get community service (said it was up to his boss). which is what happened, the court date. i did not get a miranda warning.

thanks richard.


You're welcome. If you have further questions, let me know.

Obviously since you were not questioned by the police, nobody had to give you a Miranda warning. I am not sure why you felt you had to say anything to the guy in the store but it is done. As I said, that you were not held is a good sign.

Community service hours can vary a lot for the same charge, depending on many factors, including who the judge is. But as I said, you should be able, if you can show you are indigent, to get a Legal Aid or other defense attorney there. Don't avoid getting an attorney just to "save time" or anything. Only an attorney can advise you properly, whether in a civil or criminal case, anything that involves more than filling out a form.

I wish you good luck. It's still 2 weeks, so you might want to see if you can find a private attorney; they are always better because public defenders (in FL and most states) and Legal Aid attorneys (in NY)

often have enormous caseholds and cannot devote a lot of time to every client. It is possible a private attorney may be able to spot something in the case that will give you a successful affirmative defense and avoid even community service. I really don't know about fines.

Again, I have to say that you should not rely on anything I've said here and to check with others and a licensed NYS attorney is best.

Richard

Tao Lin <[email protected] > wrote:

thanks richard for all your help. i appreciate it.



No problem. I did have lunch today with a friend who's not quite in that area, but he's legal counsel to the NY state judges' association and I mentioned some of this to him; he said it would be highly unlikely to be fined and just about unheard of to get anything more than community service for a first offense. And he did say that sometimes the first DAT people show up, and they are just told to come back because the paperwork isn't ready. Hopefully you will not have to wait there long.

Best,

Richard


thanks richard. that is very reassuring. i had been 'preparing' myself to be fined $2000 or go to jail.



Oh, I wouldn't think so, unless the value of the merchandise was really high. But then it wouldn't be petit larceny. However, your Legal Aid lawyer will hopefully help a lot.

Again, my friend (I know him from freshman year of college on) isn't a criminal law person, but he does work in the judicial system and knows a lot of judges because he represents their organization. Hopefully you will get a "normal" judge and not a crazy one.


Do you know how I could get the police record? The judge will look at that, right?



Hi Tao,

Sorry I didn't get back to you last night. I am back teaching already, 6 classes at 3 schools, so I am busy with the first week of classes and I had dinner with Sarah Weinman and Ed Champion and when I got home, I had too much school reading of diagnostic essays to write back before bed. I teach at 8 am or 8:30 am every day.

Anyway, you should call the police precinct where you were processed. I just went to see where American Apparel's store was, so I could tell you if you don't

know the number, but I see they have more than one store (lots, actually) in the city. If you tell me where the store was, I can tell you the precinct and the number.

Sometimes they will not release the police report to anyone but your lawyer -- unless you are representing yourself. If this is the case, then they will not give it to you until your date in court when you will be appointed a lawyer.

As I said, until you have been assigned a lawyer and talked to her or him, you don't want to make a plea or do anything of substance.

Let me know which American Apparel store it was.

Richard


hi richard. i was arrested at the BROADWAY american apparel. BROADWAY & i'm not sure. i think wavery.

i think i'm just going to wait until the date and then be appointed a lawyer, and let him do things. i just hope i don't mess up and go to jail. i probably would have without your help. thank you for keeping tao out of jail.



OK. You're welcome.

I am sure it will work out. It's either the 9th or 6th precinct, depending on what side of Broadway. If you want to call them, you can find out the phone numbers on line.

Please don't put yourself in this position again. It is not worth it.

Take care,

Richard


i will not put myself in this position anymore. thank you for all your advice, it was very nice.

if you need something from me please ask. i don't know... if you have more poems i could publish you again on 3 a.m .


Again, let me know if you need anything more. I think you said the date is 9/11, not

this Tuesday, right? I guess you have to be there at 9 a.m. or something. Make sure you come early.


Nice meeting you on the street. That was funny.

It is on 9/11, yes, next tuesday i think. i will go early. do you think i should wear a normal white long sleeve t-shirt with black pants?


<[email protected] > wrote:

Probably a shirt with buttons and a collar is better, like the ones I've seen you wear at readings. You don't have to wear a tie, but the kind of shirt where you could wear a tie around it (because of the collar) is more respectful to most judges. In law

school, when we say "courtroom attire," we mean for men a suit and tie or a sport jacket and dress pants and a tie, but that is for lawyers. Some lawyers will tell their clients to wear a tie. I think because it is still summer, a jacket is unnecessary, though if it happens to be a very cool day, you might wear a sport jacket.

Nice to see you on the street. I could tell you would have passed me by; you were concentrating on the cell phone call.


thanks for the clothing advice. i will need to buy a white shirt and dress pants.

should i wear a tie if it doesn't matter either way to me?


You don't necessarily need a white shirt. I've seen you in shirts with collars at readings. Those seem to be fine as long as you tuck them in the pants. Also, I think any dark pair of pants are OK.

A tie may be a little too much, actually, especially if the weather is still as warm as today.

You don't want them to think you're a rich kid so don't overdo dressing up. Better that they think (from your appearance) that you are not some thrill-seeking rich kid but someone who may not have had money to buy stuff. So being too dressed up or fashionable is a bad idea.

On 9/4/07, Tao Lin < [email protected] > wrote:

that sounds like good advice. thank you.

On 9/6/07, Tao Lin < [email protected] > wrote:

richard, i have a few more questions.

i called a few places and it will cost me $1000. i have like $300. but all the places said they would try for an ACD or "Disorderly Conduct."

is it possible for me to try for one of those things myself? when they ask what i plead, there's only three choices, right, guilty, no contest, or not-guilty. how would i do something like try to get disorderly conduct?

if you feel uncomfortable answering i understand. thank you for all your help so far.


hi richard. ignore that. my brother lent me $1000 and have a lawyer now. thank you for your help.

On 9/6/07, Richard Grayson <[email protected]> wrote:

OK. I am really, really glad. I had read your note but I had to run off to the Junot Diaz reading at the Union Square B&N, which was amazing. (I think he is my favorite fiction writer under 40 -- I've taught his book several times.)

I was thinking just now on the L train what to tell you and was going to say that if you can borrow the $1000, it will be more than worth it, that there is nothing you can do on your own that can compare. It will be the best thousand dollar investment you can make.

Even I with my law degree (and I got the book award in criminal law at UF law school and have taught it on the undergrad level) wouldn't know what to do in terms of plea bargaining, changing pleas, etc. Every lawyer, like every doctor, is a specialist, and so I would not feel comfortable going to even an experienced attorney with no experience in particular in the NYC criminal court system. These people know the procedures of each county, they know the judges and the prosecutors and often even the court personnel like bailiffs. For them, this is a simple case which is why they would charge you so little. (Yes, it's really not very much.)

There are things I can do in my field that might take me half an hour and then I can charge someone $300 and they want to know why. Well, it wasn't the half hour I used to take to do it, it was the hours and hours of learning and experience I have that I need to be compensated for.

So I am very, very happy you can get a lawyer who knows what she is doing.

Please keep me informed. I feel better knowing you will have counsel.

Richard


hi richard. everything went well. i have 2 days community service and a ACD for 6 months. i am relieved.

my community service is in thompkin's park and i think i will like it. i haven't done outdoor things for a long time and i sort of miss it, like raking or carrying things or something like that.

thanks again for all your help, you are very generous and nice.

From:"Richard Grayson" [email protected]

To:"Tao Lin" [email protected]

Good. Tompkins Square Park is where most people from downtown go. It shouldn't be hard. It might give you stuff to write about. At least the weather is nice now.

Take care,

Richard

Documents

The Tao Shoplifting Crisis