Unlawful Possession of Personal Identification Information (NY PL 190.81, 190.82 & 190.83) & Your Criminal Defense: Does New York Law Require the Use of the Personal Information?

You have been arrested with a print out of checking account numbers or a list of maiden names of ten different people. Although it is crumpled up in your wallet, you had not actually used the information or attempted to use that information. Well, is the mere possession of that personal information a violation of New York Penal Law Section 190.81, Unlawful Possession of Personal Identification Information?

Pursuant to NY PL 190.81, Unlawful Possession of Personal Identification Information:

A person is guilty of Unlawful Possession of Personal Identification Information in the Third Degree when he or she knowingly possesses a person’s financial services account number or code, savings account number or code, checking account number or code, brokerage account number or code, credit card account number or code, debit card number or code, automated teller machine number or code, personal identification number, mother’s maiden name, computer system password, electronic signature or unique biometric data that is a fingerprint, voice print, retinal image or iris image of another person knowing such information is intended to be used in furtherance of the commission of a crime defined in this

Unlawful Possession of Personal Identification Information in the Third Degree is a class A misdemeanor punishable by up to one year in jail.

Now that you have a general understanding, or at least definition, of the crime of Unlawful Possession of Personal Identification Information in the Third Degree, you are ready for more legal analysis after the jump…
In a recent New York County Criminal Court decision, People v. Essalek, 17 Misc.3d 835 (NY Crim. Ct. 2007), a judge faced a set of facts where an individual was arrested for marijuana possession. After the defendant’s arrest, the officer recovered a piece of paper with, among other things, three credit card numbers along with the security codes and expiration dates. When confronted, the defendant stated “they are credit card numbers but I don’t know whose they are.”

In finding the complaint / information facially sufficient, the court addressed two distinct issues as follows and answered them as follows:

(1) “A plain reading of the statute clearly reveals that a person need not actually use or attempt to use personal identification information to commit this crime; rather, the charge requires only that a defendant possess personal identification information and have knowledge that such information is intended to be used in commission of a crime.”

(2) “[W]hile an accusatory instrument charging unlawful possession of personal identification information must provide facts of an evidentiary character to support the conclusion that defendant had knowledge that the possessed information was intended to be used in a crime, a specific crime that is intended to be committed does not need to be alleged at the pleading stage. Such proof may not even be necessary at trial…”

The above excerpts from Essalek reveal two important factors that an individual must be ready to address in the event they are accused of Unlawful Possession of Personal Identification Information. That is, improper or illegal use of the information is not necessary to sustain this offense. Furthermore, the prosecution is not required to establish the specific crime an accused is alleged to have either perpetrated or attempted to perpetrate.

Although the above analysis deals specifically with PL 190.81, Unlawful Possession of Personal Identification Information in the Third Degrees, the issues addressed here also apply to the felony offenses of Unlawful Possession of Personal Identification Information in the Second and Third Degrees. Crotty Saland PC is a white collar criminal defense firm founded by two former Manhattan prosecutors. Prior to starting the firm with Elizabeth Crotty, Jeremy Saland served as a member of the Manhattan Identity Theft Unit’s Major Case Section and was the most senior prosecutor assigned to the unit upon its creation.

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