OSSIPEE — A legally blind man accused of shoplifting from Walmart in 2018 may be let off the hook from doing any prison time, according to a “diversion agreement” OK’d by a Carroll County Superior Court judge Monday.
A diversion agreement, according to uslegal.com, is “the specification of formal terms and conditions which a defendant must fulfill in order to have the charges against him/her dismissed. ... Diversion is a means to avoid a judgment of criminal guilt.”
Andrew Airey, 40, of Conway pleaded not guilty to five counts of theft after being arrested outside the North Conway Walmart on July 3, 2018. He claimed he didn’t mean to take items without paying for them at a self-checkout kiosk.
Airey suffers from Stargardt disease, also known as juvenile macular degeneration, which causes progressive damage to the macula, an area of the retina responsible for sharp, straight-ahead vision.
His trial was held Nov. 5, 2019. In a written order dated Nov. 26, Circuit Judge Michael Garner convicted him of two counts of theft (a can of corned beef and a towel) and acquitted him of three.
In December at sentencing, Garner gave Airey two suspended fines of $500 each, but Airey chose to appeal the verdict to the Superior Court, where the case was to begin anew.
Jury selection, which was originally scheduled for March 9, was moved to May 18. But that date was later canceled due to “change of plea.”
On March 4, Airey took part in a settlement conference before Superior Court Judge Peter Fauver.
According to Fauver’s court order, the case was “settled” and scheduled for a dispositional hearing. Details of the settlement were not then available.
On Tuesday morning, the Sun was given a copy of the diversion agreement by Airey’s co-counsel Stuart Dedopoulos.
Airey and his lawyers signed the document last week as did Assistant Carroll County Attorney Thomas Palermo who represented the prosecution.
Judge Amy Ignatius signed the agreement Monday. The agreement says that if Airey stays free of any misdemeanor or felony charges for two years, the complaints will be withdrawn.
In the event of any conviction resulting from an arrest, however, the diversion agreement will automatically terminate, “at which time, as a matter of law, both appeals shall be remanded to the 3rd Circuit-District Division Conway, where they will immediately be entered as final convictions,” said the agreement.
In addition, Airey “shall pay restitution in the amount of $240.76 to Walmart,” states the agreement. “This restitution covers the items he took from Walmart on May 4, June 9, June 13, June 28 and July, 2018, for which he did not pay, and which Walmart could not reshelve.”
Airey was given 30 days to pay and must provide payment through the Conway police or County Attorney’s Office. He also must comply with any “no trespass order” that Walmart may issue against him.
Airey releases all claims against Walmart and the Conway police about being arrested and charged. He has agreed not to speak to the press about the case.
On Tuesday, Dedopoulos said the resolution was “appropriate.”
Asked if Airey has learned anything from the ordeal, Dedopoulos said the attorneys believe Airey’s wife or children ought to do the shopping from now on.
“The right thing was done in the end, and the taxpayers don’t have to pay for a complicated and lengthy trial,” said Dedopoulos. “Andrew realizes he needs to be more careful in what he does.”