Articles Posted in Discovery

The attorneys of Lubiner, Schmidt & Palumbo appeared in municipal courts across three different municipalities to represent clients facing shoplifting charges. Shoplifting is defined in Title 2C:20-11 of the New Jersey Criminal Code. The charge includes not only purposely taking store merchandise, but also purposefully concealing merchandise or altering or removing any price tag or label. The degree of shoplifting or the severity of sentencing primarily depends on the retail value of the items taken or the pecuniary loss sustained by the shopkeeper or store. Under Title 2C:20-11 shoplifting is a second degree crime if the value of merchandise taken is $75,000 or greater, third degree if greater than $500 but less than $75,000, 4th degree crime if at least $200 but does not exceed $500, and only a disorderly person offense if the amount is less than $200.

One of the key aspects of formulating a defense to shoplifting is discovery requests from the state. All three of the defendants being represented by Lubiner, Schmidt & Palumbo had been in and out of court for many months. As defense attorneys in these shoplifting cases, we utilized critical strategies, including procedural arguments rebutting the production of discovery, in an effort to dismiss flawed charges. Most notably, the prosecutor(s) from each case had failed to produce discovery by neglecting to bring forth proper video footage of each alleged theft.

Generally, a court should not dismiss a case for failure to produce discovery. However, in State v. Holup, the court held that if the appropriate motion is filed giving the notice that discovery was not produced in a case, with a request that a time be set by the court for the production of said discovery, then a failure to do so after the court’s set time may lead to a dismissal of the counsel’s charges.  Such motions are more commonly referred to as Holup Orders.