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 < binky.tabby@gmail.com> 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

<richard.grayson@yahoo.com > 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 <binky.tabby@gmail.com> 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

< richard.grayson@yahoo.com > 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

Tao Lin < binky.tabby@gmail.com> wrote:

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.

On 8/27/07, Richard Grayson

< richard.grayson@yahoo.com > wrote:

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.

Tao Lin <binky.tabby@gmail.com> wrote:

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.

On 8/27/07, Richard Grayson

<richard.grayson@yahoo.com > wrote:
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 <binky.tabby@gmail.com > wrote:

thanks richard for all your help. i

appreciate it.
On 8/28/07, Richard Grayson

< richard.grayson@yahoo.com > wrote:

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

Tao Lin <binky.tabby@gmail.com> wrote:

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

On 8/28/07, Richard Grayson

< richard.grayson@yahoo.com > wrote:

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.
Tao Lin < binky.tabby@gmail.com> wrote:

Do you know how I could get the police

record? The judge will look at that, right?

On 8/30/07, Richard Grayson

< richard.grayson@yahoo.com > wrote:

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

Tao Lin < binky.tabby@gmail.com> wrote:

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.

On 8/31/07, Richard Grayson

< richard.grayson@yahoo.com > wrote:

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

Tao Lin < binky.tabby@gmail.com> wrote:

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
.

On 9/2/07, Richard Grayson

<richard.grayson@yahoo.com > wrote:

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.

Tao Lin < binky.tabby@gmail.com> wrote:

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?

On 9/3/07, Richard Grayson

<richard.grayson@yahoo.com > 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.

Tao Lin <binky.tabby@gmail.com> wrote:

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?
On 9/4/07, Richard Grayson
<richard.grayson@yahoo.com > wrote:

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 <

binky.tabby@gmail.com > wrote:

that sounds like good advice. thank you.

On 9/6/07, Tao Lin <
binky.tabby@gmail.com > 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.

Tao Lin <binky.tabby@gmail.com> wrote:

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

<richard.grayson@yahoo.com> 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

Tao Lin <binky.tabby@gmail.com> wrote:

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"
richard.grayson@yahoo.com

To:"Tao Lin" binky.tabby@gmail.com

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