I recently appeared in Morris Plains Municipal court as well as Rockaway Municipal Court representing clients charged with shoplifting in violation of N.J.S.A. 2C:20-11. If the merchandise is valued at less than $200.00, this is graded as a disorderly persons offense in New Jersey and will be handled in the Municipal Court in the municipality in which the offense was allegedly committed. However, if the merchandise was valued at more than $200, this is an indictable criminal charge and will be handled at the Superior Court in the County in which the municipality is located.

In these shoplifting cases, typically the prosecutor is permitted to offer a plea bargain or downgrade of this shoplifting criminal charge to a violation of a municipal ordinance for disorderly conduct. This allows the defendant to avoid a criminal charge on his or her record and pay a fine for the violation. This is especially true if this is the defendant’s first offense and first contact with the criminal justice system and if the amount of the goods in question is minimal (say $50 or less). However, this is no longer the case in Morris County.

According to the new policy in place in Morris County, the prosecutor is no longer permitted to offer any downgrade of a shoplifting criminal charge. This is because there are enhanced penalties for a second or third shoplifting offense, including mandatory jail time (three (3) months) on a third offense. Now, the defendant must either take the case to trial (and face a maximum of (6) six months in jail) which is at the discretion of the Municipal Court judge, or plead guilty and pay a fine but end up with a permanent criminal charge on their record (subject to expungement after five (5) years). Moreover, one of my clients is here on a visa and she may be deported as a result of this shoplifting charge on her record which was over a $20.00 item.

I have a major problem with this new policy and I believe it is absolutely unfair and inequitable. If my clients are charged with simple assault, harassment, or terroristic threats in Municipal Court, I can typically get them a downgrade to a violation of a municipal ordinance which results in a fine and no criminal record. This is especially true for individuals with little to no criminal history and where the actions in question were not extremely egregious. Why should shoplifting be any different? Why should a defendant with no prior criminal history end up with a criminal charge on their record over a $20.00 item? Not only that, why should this same defendant face deportation proceedings based on this $20.00 shoplifting charge? The prosecutor should have the discretion to take into consideration the facts and circumstances of each case and determine the strength of the State’s evidence as well as the criminal background of the defendant to determine whether or not a downgrade of the charge should be given. Currently, they have taken that discretion away from him or her.

Furthermore, this current “ban” on the plea bargaining of shoplifting charges in Morris County is even more ridiculous when you consider that, if the individual had stolen more than $200.00 worth of merchandise and the case was handled at the County in Superior Court, the defendant would be able to apply and would undoubtedly be accepted into the Pre-Trial Intervention (PTI) program. This would allow them to avoid any criminal record if they successfully completed their probationary period. Moreover, this would allow someone who is in the United States on a visa or green card to maintain their residency rather than face deportation.

As you can see, this is a major problem that must be remedied. I would suggest that you write your local elected officials and complain about this policy. As of right now, it is leading to very inequitable results and it is not allowing the criminal justice system to function properly.