Variation Six is quite interesting. Zack tried to put one over on Chipotle, and failed. So what, if anything, is Zack guilty of?
Let us imagine for a moment that the price of steak salad was $900.00, and the price of chicken salad was $700.00. (The reason we invent those wild numbers becomes clear later on this page.) In that rather hypothetical situation, Zack attempted to cheat Chipotle out of $200.00. Theft of $200.00 in New Jersey is a fourth-degree crime.
Although Zack's attempt failed, he still made the attempt. However, in New Jersey, an attempt to commit a crime is itself considered to be a crime, punishable the same as if the crime had actually been committed. (There are exceptions to this principle. Those exceptions are not applicable here.)
The benefit that Zack attempted to gain in Variation Six, however, was not $200.00. In fact, it was barely over a dollar.
The general rule in New Jersey (exceptions exist) is that a theft of merchandise with a value of less than $200.00 is not a crime. It is, rather, a “disorderly persons offense.” And in New Jersey, an attempt to commit a disorderly persons offense has been held not to be a crime. In fact, it is has been held to not be any offense at all. This principle was recognized in the case of State of New Jersey v. Clarke, 198 N.J. Super. 156 (App. Div., 1985).
The answer to the questions, therefore, is that Zack has committed no offense at all. He has incurred no criminal liability to the State. And Chipotle itself, under this hypothetical, has suffered no damage. So Chipotle Mexican Grill is happy because it just made a sale, and the State of New Jersey is happy because no offense has been committed. Zack is not happy because he thought he was getting a steak salad and all he got was chicken. Some people just pay too much attention to their cell phones.