The Appellate Division concluded with the following in relevant part: Moreover, the purpose of the shoplifting statute is “preventing the loss of merchandise without full payment–the protection of inventory.” De Angelis v. Jamesway Dep’t Store (App. Div. 1985). The sales tax on a particular piece of merchandise is not a part of a store’s inventory, and it should not be considered in assessing the value of the merchandise stolen. Accordingly, we conclude there is no basis for the State to include sales tax when grading a defendant’s shoplifting charge.
The presentencing report in the record indicates the Xbox One at issue was valued at $499.99. The State does not dispute this figure. The State’s third-degree gradation of the shoplifting charge–for a value exceeding $500– appears to have improperly included sales tax. Because this merchandise’s full retail value was not calculated properly, it had a potentially significant impact on defendant given that a third-degree shoplifting offense exposes him to a significantly longer term of imprisonment than a fourth-degree offense. Based on the analysis above, we determine defendant’s conviction of a third-degree shoplifting offense must be reversed.
A guilty verdict may be molded to convict on a lesser-included offense if “(1) defendant has been given his day in court, (2) all the elements of the lesser included offense are contained in the more serious offense, and (3) defendant’s guilt of the lesser included offense is implicit in, and part of, the jury verdict.” State v. Farrad (2000) (citation omitted). Here, because fourth-degree shoplifting requires proof of the same elements as third-degree shoplifting–the only difference being that the punishment is less severe if the full retail value of the merchandise is at least $200 but does not exceed $500–defendant’s judgment of conviction must be amended to reflect a conviction for fourth-degree shoplifting as a lesser-included offense of third-degree shoplifting. Lastly, because we are remanding for resentencing regarding the molded fourth-degree shoplifting charge, the trial court should also consider mitigating factor fourteen in its decision.
The power of the retail lobby also does not bode well for the defendant if the prosecution decides to appeal to the New Jersey Supreme Court. That lobby is responsible for adding mandatory community service and jail sentences to the shoplifting statue for even the most trivial repeat offenses.
