JOINT MEMO IN OPPOSITION TO
SENATE PROPOSAL PART WW of S8305-B
March 22nd, 2024
We strongly oppose adoption of the language proposed in Part WWW of S8305B which would make successive alleged incidents of theft from different locations subject to the aggregation of value of the alleged stolen goods and eligible for enhanced charging and sentencing.
Changing the method of valuation under PL 155.20(1) will not address the concerns around increased retail theft. In fact, the use of multiple petit larcenies aggregated to make out a grand larceny charge has already been addressed by the Court of Appeals. For thefts against a single owner/location, the law now allows aggregation of the value of successive thefts.[1] People v. Cox, 286 N.Y. 137 (1941). Therefore, for those who repeatedly target the same store, the law already allows for the prosecution of successive thefts as grand larceny if the aggregate value of the stolen items amounts to $1,000.00 or more.
There is good reason why the Court of Appeals stopped short of allowing aggregation of multiple thefts from multiple owners in different places: doing so raises constitutional concerns, implicating double jeopardy and due process. When multiple crimes are charged in a single count, which is precisely what the Senate’s proposal contemplates, the Court of Appeals has held that this “may [fail to give a defendant] adequate notice and opportunity to defend; it may impair his ability to assert the protection against double jeopardy in a future case; and it may undermine the requirement of jury unanimity, for if jurors are considering separate crimes in a single count, some may find the defendant guilty of one, and some of the other.” People v. Alonzo, 16 N.Y.3d 267, 269 (2011).
This caution from the Court is more than an academic exercise in the theoretical. Consider a person charged with three separate incidents at three separate locations where the value of the alleged items taken totals more than $1,000, meeting the threshold for grand larceny. What if that person has an alibi to offer for one of the incidents, or testimony to offer for another? To charge and try all three would force a person who stands accused in this merged indictment to relinquish their right to remain silent as to all allegations in order to offer testimony as to one. Such a scenario easily plays into the concerns of the Alonzo court and, as such, demands a rejection of, or at the very least, a more narrow tailoring of the senate proposal.
We urge our elected leaders to refocus the government’s attention on this issue and take a non-incarceratory approach to address concerns about retail theft. Changes to retail theft provisions are unnecessary to address the legitimate safety concerns of retail workers. In order to meaningfully address safety concerns or retail workers, we urge you to listen to the workers directly, whose main union, the Retail, Wholesale and Department Store Union (RWDSU) is calling for passage of S8358/A8947 which would require employers to develop and implement safe staffing levels and programs to prevent workplace violence. Instead of increasing criminal penalties, we should focus on solutions that will produce true safety, like S8358/A8947, offered and endorsed by the workers themselves.
True safety is created by investing in the creation of thriving communities and addressing people’s underlying needs. We urge you to heed the call of the retail worker’s union, which recognizes that the way to keep its members safe is to focus on preventing harm in the first place. We look forward to supporting the critical work before you: to solve the root cause of the feeling of insecurity by investing in the support and health of our communities.
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(1) In Cox, while determining whether petit larceny had permissibly been aggregated to grand larceny, the Court of Appeals found “‘if several takings are pursuant to several different intents and each illegal plan is a new and separate enterprise, each taking may only be prosecuted as a single larceny, for it is only those stealings which are prompted by a single intent and pursuant to a single plan which may be accumulated and prosecuted as one larceny”. People v. Cox, 286 NY. 137(1941).