New York Identity Theft Crimes: Can One Perpetrate Identity Theft in NY Where Permission is Given to Use Personal Identifying Information

As a prosecutor in the Manhattan District Attorney’s Office for over seven years, I supervised and led investigations, arrests, indictments into complex identity theft and fraud related crimes and schemes. One of those investigations and indictments resulted in the conviction of numerous individuals who posed as professional graduate school entrance examination test-takers. These defendants created fake passports and use the identification information of the legitimate prospective student to sit for the GMAT, GRE, TOEFL and other examinations. Indicted for the crimes of Criminal Possession of a Forged Instrument, Falsifying Business Records and Identity Theft, none of the attorneys who represented the accused challenged the crime of Identity Theft based on the theory that their respective client was given permission and authority by the legitimate student to use that student’s personal information to cheat the colleges and universities. If nothing else, the idea that one cannot commit identity theft because one was given permission to use the personal information, albeit to defraud a third party, was worth pursuing in a court of law in light of the other overwhelming evidence. While other crimes may have been perpetrated, an argument could have been made that Identity Theft was not one of them.

Generally, you are guilty of Identity Theft in New York (New York Penal Law 190.78) in New York when, with the intent to defraud, you present yourself as another person by using that person’s personal identifying information. In doing so, also obtain goods, money or some other form of property. This crime is enhanced through the value of the property or goods, as well as through other means to the crimes of New York Penal law 190.79 and New York Penal Law 190.80.

Addressing the issue hinted to in the first paragraph, nothing in the statute directly states whether you can commit identity theft if the “owner” of the identifying information gives you the authority to us it even if that information is being given to you for the purpose of deceiving another. Although a lower court decisions and not 100% on point, a Brooklyn court has finally grappled with this issue in part.

The People of the State of New York v. [M.]1, 2010KN014909, the defendant and the complainant shared a child in common. At some point the defendant, who had bad credit, allegedly received permission from the complainant to open up a credit card account with the personal identifying information of the victim. Upon doing so, the defendant utilized the credit, but also maintained her responsibility to pay the associated bills. Only after an unrelated dispute between the parties did the defendant stop paying the credit card bills. The question before the court was whether or not the conduct described above constituted the crime of Identity Theft in New York. That is, if you once had permission to use another person’s information, could you still be perpetrating identity theft once that person revoked that right or because even with that right, a third party is being deceived or defrauded.

Answering the former question, the court found that once the complainant revoked the right of the defendant to utilize the personal information, using that information going forward would ultimately violate the crimes of Identity Theft. The latter question, while not in and of itself the basis of the decision, was analyzed as well. There the court noted that even if the complainant was not being defrauded when permission was granted to use personal identifying information, the creditor was. According to the court:

“It is basic law, leaving aside exceptions not relevant here, that a vendor may choose its customers, and a creditor may choose its debtors. It was not disputed that Dell [the creditor] was entitled to turn down Defendant as a customer worthy of being extended credit, as long as it did not do so for some legally impermissible reason. Nor may a potential customer legally circumvent the vendor’s refusal to extend credit by surreptitiously opening an account in the name of some other party who has not consented and agreed to be liable to the vendor, even if the vendor would have extended credit to the nominee, had he applied for credit.”

Extensive information the crimes of Identity Theft in New York as well as associated fraud crimes is located through the highlighted link. Beyond these crimes, substantive information on New York white collar crimes may be found on both the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) as well as the Crotty Saland PC website.

Representing those accused of or arrested for crimes in the New York City region, Crotty Saland PC was founded by two New York criminal lawyers who previously served as Manhattan prosecutors.

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