When New York Credit Card & Debit Card Theft May Not be a Felony: Possession & Theft of ATM Cards

Any New York criminal lawyer will tell you that the best way to avoid an arrest, indictment or conviction is to steer clear of any and all criminal conduct. While that may sound easy, often time individuals make mistakes or get caught up in criminal acts that they truly had no intention of getting involved with in the first place. Two particular crimes that prosecutors can elevate from less serious conduct into felony crimes are the theft of credit or debit cards and the possession of stolen debit or credit cards. These two felony crimes, New York Penal Law 155.30(4) and 165.45(2), are violations of Grand Larceny in the Fourth Degree and Criminal Possession of Stolen Property in the Fourth Degree. Simply, if you steal a credit card or debit card or possess a stolen debit card or credit card then you will face up to four years in prison. Each individual card is a separate chargeable offense. As a result, if you have three stolen credit cards, for example, each individual credit card possession constitutes a separate and distinct crime with its own potential punishment.

Cases involving felony credit card theft and criminal possession of a stolen debit cards truly illustrate the value of both educating yourself on the law and retaining an experienced criminal lawyer to defend you against the criminal allegation. As the following case demonstrates, in terms of credit card and debit card crimes, mistakes can be made by both inexperienced criminal attorneys as well as their prosecutorial counterparts. Here, the question is clear. Are all debit cards, credit cards, and ATM cards created equal? The answer is clear, but often difficult to fully grasp.

In Matter of Kimberly H., 196 A.D.2d 192 (4th Dept. 1994), the defendant, a juvenile, had been arrested and charged with Criminal Possession of Stolen Property (NY PL 165.45(2)) after she was caught with an automated teller machine (ATM) card. The defendant had taken her mother’s ATM card to withdraw $600 from her mother’s bank account. The issue ultimately addressed by the court was whether or not a card that is strictly an ATM card used to withdraw money from an automated teller machine is also a debit card or credit card for the purpose of criminal statutes. If so, then Kimberly H. would have violated New York Penal Law 165.45(2) and New York Penal Law 155.30(4) (Criminal Possession of Stolen Property in Fourth Degree and Grand Larceny in the Fourth Degree respectively). It not, then while Kimberly H.’s actions may have been a misdemeanor offense, but she did not commit a felony debit card or credit card crime.

According to New York General Business Law 511(9), a “debt card” is specifically defined. It is this definition that is applicable to the New York Penal Law. A key characteristic of a debit card defined in this section is that the card can be used without a personal identification number or code to make a purchase or lease property or services. Alternatively, a “credit card” is defined according to New York General Business Law 511(1) and is not the same as a debit card. Instead, a card is used to obtain cash advances or a loan or credit. Like a “debit card,” a “credit card” can also be used to purchase property or services or lease the same. Clearly, these definitions, while helpful, distort what we all believe is either a credit card or debit card. Prosecutors are not immune from these misunderstandings.

Again, in terms of the Kimberly H. case, the defendant had used her mother’s ATM card to withdraw $600. Obviously, instead of purchasing property or leasing the same, cash was withdrawn. Moreover, a pin number was used to take the money. In finding that the ATM card was neither a credit card or debit card as defined by the law and, as a result, the defendant’s use and possession was not a felony, the court found that:

“Although the definition of credit card in the General Business Law would appear to be clear and unequivocal, making resort to extrinsic matter inappropriate ( see, Sega v. State of New York, 60 N.Y.2d 183, 191, 469 N.Y.S.2d 51, 456 N.E.2d 1174), any further clarification that may be needed is readily furnished by examining the most recent legislative history of General Business Law § 511. That history supports the view that the Legislature, for whatever reason, failed to include ATM cards within its expanded definition of credit card. When the term “cash advance” was added to the definition in 1970 (L.1970, ch. 988, § 1), the Senate memorandum noted that “[a] significant feature of the bill is the extension of the definition of credit card to include any such device used to obtain a ‘cash advance or a loan.’ This new language has been inserted to cover bank credit cards, a device presently not covered by the existing definition” (NY Senate Mem, 1970 N.Y.Legis.Ann., at 107 [emphasis provided] ). The Budget Report on 8402-A stated that the bill would “expand the definition of ‘credit cards,’ to include cards that may be used to obtain cash loans” (Mem of Div of Budget, Bill Jacket, L.1970, ch. 988 [emphasis provided] ). The amendment enabled the holders of credit cards to withdraw funds on their credit by obtaining cash advances or cash loans, not cash withdrawals of their own funds.”

Practically speaking, this case may have limited value today in that ATM cards, devices that solely enable the user to obtain cash, are dinosaurs. While there are likely many out in the market from a numeric standpoint, most of these ATM cards have been replaced by multi-use cards. The value of this case and the review of the statutes defining credit cards and debit cards, however, is still significant. Should prosecutors charge you in an indictment for possessing a stolen credit card when in fact it is actually a debit card, a dismissal of the indictment or an acquittal at trial might be in the cards for you.

To further educate yourself on the crimes of New York Grand Larceny and Criminal Possession of Stolen property as they relate to credit cards and debit cards, please follow the highlighted links above. Additionally, a review of the NewYorkCriminalLawyerBlog.Com has a wealth of information on these an other crimes including a review of criminal statutes, legal decisions and cases in the news. Sometime by November 2011, the NewYorkTheftAndLarcenyLawyersBlog.Com will be “live” with more valuable content as to theft and larceny crimes in New York.

Founded by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC represent the accused throughout the New York City region.

Updated: