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Cooke v. Newberry

Decided: July 6, 1967.

LENORE ROSEMARIE COOKE, PLAINTIFF-APPELLANT,
v.
J. J. NEWBERRY AND CO., A CORPORATION, DEFENDANT-RESPONDENT



Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Gaulkin, S.j.a.d. Labrecque, J.A.D. (dissenting).

Gaulkin

Plaintiff's action is described in the pretrial order as one "for false arrest and false imprisonment." After both sides rested, the trial judge directed the entry of judgment in favor of defendant and plaintiff appeals.

The broad outline of plaintiff's case (details of which will be supplied, infra, as needed) is as follows: plaintiff admits that she left defendant's store in Bergen Mall, Paramus, with a pair of stretch pants, for which she had not paid, in a Stern's shopping bag. She was accosted outside the store by one Earabino, a Newberry security officer, who refused to accept payment for the garment and asked her to return to the store with him. She accompanied him to an office in the store where she was interrogated for a period and asked to sign a certain paper (described later) which she refused to do. Then Earabino called the Paramus police, who took her into custody. Earabino signed a complaint which charged plaintiff with larceny. She was held for the grand jury, indicted for larceny, tried before a jury and acquitted. This action followed.

We hold that, even though Earabino signed a complaint for larceny and she was indicted and tried on that charge, this case is governed by N.J.S. 2A:170-97 to 101, the Shoplifting Act. Defendant is responsible, if at all, only for that which happened before the police took plaintiff into custody. Since the action is not one for malicious

prosecution, defendant could not be liable for the length or nature of plaintiff's detention by the police, or for the actions of the authorities while she was detained. Earl v. Winne, 14 N.J. 119, 128 (1953); Genito v. Rabinowitz, 93 N.J. Super. 225, 228-229 (App. Div. 1966); Prosser on Torts (3 d ed. 1964), § 12, pp. 61-62; Restatement, Torts 2 d, § 37, comment (b); § 45A, comment (b).

By the same token defendant is not liable for the action of the authorities and the grand jury in proceeding against plaintiff for larceny under N.J.S. 2A:119-2 instead of as a shoplifter, under N.J.S. 2A:170-98. It is the function of the authorities to select the type of prosecution. Once the citizen tells the authorities truly what the facts are, the rest is up to them. Certainly defendant had no control over the prosecutor or the grand jury. In any event, we hold that even if Earabino himself chose to make the larceny complaint instead of one under the Shoplifting Act, defendant would not retroactively lose the benefit of the Act.

We turn, therefore, to the Shoplifting Act.

Section 99 of the act provides:

"Any person willfully concealing unpurchased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of converting the same to his own use without paying the purchase price thereof within the meaning of section 1 of this act, and the finding of such merchandise concealed upon the person * * * shall be prima facie evidence of willful concealment; * * *."

Section 100 provides:

"A law enforcement officer, or a special officer, or a merchant, who has probable cause for believing that a person has willfully concealed unpurchased merchandise and that he can recover such merchandise by taking the person into custody, may, for the purpose of attempting to effect such recovery, take the person into custody and detain him in a reasonable manner for not more than a reasonable time. Such taking into custody by ...


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