I am 41 with felonies and a prison record. i finished my 2yr parole in june2011 with no problems. I have turned my life around. I was recently accused of taking a 350$ money order and they said they have me on camera. I picked up my papers that were ...

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I am 41 with felonies and a prison record. i finished my 2yr parole in june2011 with no problems. I have turned my life around. I was recently accused of taking a 350$ money order and they said they have me on camera. I picked up my papers that were on the counter. The officer searched me my pockets my vehicle no money order. I appear in court Monday and want to plead not guilty but am so afraid my priors will haunt me. I am innocent but scared, I have a great job and will probably lose it also. I have came a long way and want to be proud of where im at. Its a misdemeanor/will i go back to prison?

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DakotaLegal's picture

Ask for a continuance until

Ask for a continuance until you get a lawyer. Plead not guilty, if you have to appear. The most important thing is one of the last things you said: you’re innocent. Try getting immediate help: http://www.nmlegalaid.org/. I prefer legal aid to the usual public defender. There’s a very real chance a too-busy PD will try to pressure you into accepting a misdemeanor larceny, and a promise of probation: don’t take it. Of course, I’m not going to kid you, since you know the system, and have probably seen it make big mistakes, including promises about going easy, when they have no intention of doing so.
 
Before we talk about some of the details of what you can do, there are a few questions.
 
The good news is that even if justice gets short-circuited in this case, you are almost certainly not going to prison, based on a (wrongful) conviction here. While New Mexico has a Three Strike rule, it applies to less than a dozen serious felonies, most of which involve violence, and not a weak misdemeanor larceny charge. You didn’t say what your prior was for (I hope it was non-violent), but this misdemeanor should not send you back. Even the ACLU may have an interest in this case: http://www.aclu. org/racial-justice_prisoners-rights_drug-law-reform_immigrants-rights/10-reasons-oppose-3-strikes-youre-.
 
You indicated a money order was taken, and they didn’t recover it from you. Have you found out if it’s been negotiated yet? It seems very possible that since you didn’t take it, the only way someone didn’t try to cash it would be if they either changed their mind or else knew of your being accused. This can also be important, since any Prosecutor will be likely to argue that an uncashed money order points to your having been “caught” and discouraged from trying to cash the money order… especially, based on this weak case. It’s hard to conceive of the video showing you stealing something you didn’t take. Delaying this case is to your advantage, and makes prosecution less likely.
 
So these issues lead to another important, unanswered question: did this happen at your workplace or somewhere you were doing business? I’m betting, from what you said, that it was at your job (including the possibility of losing your job).You have very different rights, depending on where it happened. It can affect your being detained at the workplace, and even the reasonableness of the search of your vehicle. I assume you consented to the policeman’s search, but if you were arrested first, then you may have a future suit against the police, as well as the employer or business.
 
Theft of more than $250 is a misdemeanor, so check out the levels, here… http://statutes .laws.com/new-mexico/chapter-30/article-16/section-30-16-1.
 
30-16-1. Larceny.
 
A. Larceny consists of the stealing of anything of value that belongs to another.
 
B. Whoever commits larceny when the value of the property stolen is two hundred fifty dollars ($250) or less is guilty of a petty misdemeanor.
 
C. Whoever commits larceny when the value of the property stolen is over two hundred fifty dollars ($250) but not more than five hundred dollars ($500) is guilty of a misdemeanor.
 
D. Whoever commits larceny when the value of the property stolen is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony.
 
 
Did They Violate Your Rights?
 
I’d asked earlier whether or not you had consented to the search, and where the search happened. That officer is very likely going to be a very valuable living witness and thinking of a suit against him is not a good signal to send. The other “witness” is the camera. If this accusation is coming from your job, I’d also recommend you fight back, against the employer, either for a false arrest claim (weak, but possible) or better, as a damage to reputation suit. Here’s a court case describing that kind of claim: http: //www.rcfp.org/sites/default/files/docs/20120308_121710_new_mexico_ supreme_court_smith_v_durden_ruling.pdf.
 
I’m not as concerned about the employee’s testimony, since she’s (a) wrong and (b) has her motivations to perhaps not be completely honest: she may have been the one who lost the money order. If she’s a co-worker, she may have some hostility toward you. One thing that seems very possibly a damage to your reputation (the possibility of defamation), though, is how you were detained at the store. Few states actually protect people from losing a job based on being arrested, and New Mexico doesn’t give you many protections from an employer suing a prior record or this arrest. Only if your employer is a “public employer” do you have the right to complain about using an arrest. N.M. Stat. Ann. §§ 28-2-2, -3(b)(1).

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DakotaLegal's picture

Ask for a continuance until

Ask for a continuance until you get a lawyer. Plead not guilty, if you have to appear. The most important thing is one of the last things you said: you’re innocent. Try getting immediate help: http://www.nmlegalaid.org/. I prefer legal aid to the usual public defender. There’s a very real chance a too-busy PD will try to pressure you into accepting a misdemeanor larceny, and a promise of probation: don’t take it. Of course, I’m not going to kid you, since you know the system, and have probably seen it make big mistakes, including promises about going easy, when they have no intention of doing so.
 
Before we talk about some of the details of what you can do, there are a few questions.
 
The good news is that even if justice gets short-circuited in this case, you are almost certainly not going to prison, based on a (wrongful) conviction here. While New Mexico has a Three Strike rule, it applies to less than a dozen serious felonies, most of which involve violence, and not a weak misdemeanor larceny charge. You didn’t say what your prior was for (I hope it was non-violent), but this misdemeanor should not send you back. Even the ACLU may have an interest in this case: http://www.aclu. org/racial-justice_prisoners-rights_drug-law-reform_immigrants-rights/10-reasons-oppose-3-strikes-youre-.
 
You indicated a money order was taken, and they didn’t recover it from you. Have you found out if it’s been negotiated yet? It seems very possible that since you didn’t take it, the only way someone didn’t try to cash it would be if they either changed their mind or else knew of your being accused. This can also be important, since any Prosecutor will be likely to argue that an uncashed money order points to your having been “caught” and discouraged from trying to cash the money order… especially, based on this weak case. It’s hard to conceive of the video showing you stealing something you didn’t take. Delaying this case is to your advantage, and makes prosecution less likely.
 
So these issues lead to another important, unanswered question: did this happen at your workplace or somewhere you were doing business? I’m betting, from what you said, that it was at your job (including the possibility of losing your job).You have very different rights, depending on where it happened. It can affect your being detained at the workplace, and even the reasonableness of the search of your vehicle. I assume you consented to the policeman’s search, but if you were arrested first, then you may have a future suit against the police, as well as the employer or business.
 
Theft of more than $250 is a misdemeanor, so check out the levels, here… http://statutes .laws.com/new-mexico/chapter-30/article-16/section-30-16-1.
 
30-16-1. Larceny.
 
A. Larceny consists of the stealing of anything of value that belongs to another.
 
B. Whoever commits larceny when the value of the property stolen is two hundred fifty dollars ($250) or less is guilty of a petty misdemeanor.
 
C. Whoever commits larceny when the value of the property stolen is over two hundred fifty dollars ($250) but not more than five hundred dollars ($500) is guilty of a misdemeanor.
 
D. Whoever commits larceny when the value of the property stolen is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony.
 
 
Did They Violate Your Rights?
 
I’d asked earlier whether or not you had consented to the search, and where the search happened. That officer is very likely going to be a very valuable living witness and thinking of a suit against him is not a good signal to send. The other “witness” is the camera. If this accusation is coming from your job, I’d also recommend you fight back, against the employer, either for a false arrest claim (weak, but possible) or better, as a damage to reputation suit. Here’s a court case describing that kind of claim: http: //www.rcfp.org/sites/default/files/docs/20120308_121710_new_mexico_ supreme_court_smith_v_durden_ruling.pdf.
 
I’m not as concerned about the employee’s testimony, since she’s (a) wrong and (b) has her motivations to perhaps not be completely honest: she may have been the one who lost the money order. If she’s a co-worker, she may have some hostility toward you. One thing that seems very possibly a damage to your reputation (the possibility of defamation), though, is how you were detained at the store. Few states actually protect people from losing a job based on being arrested, and New Mexico doesn’t give you many protections from an employer suing a prior record or this arrest. Only if your employer is a “public employer” do you have the right to complain about using an arrest. N.M. Stat. Ann. §§ 28-2-2, -3(b)(1).