Establishing Unauthorized Use of a Computer & Third Degree Identity Theft in New York Courts

Prosecutors, judges and New York criminal lawyers are seeing more and more arrests for Identity Theft and Unauthorized Use of a Computer. As misdemeanors, Identity Theft in the Third Degree (New York Penal Law 190.78) and Unauthorized Use of a Computer (New York Penal Law 156.05) are very serious and very real crimes in New York. In fact, not only is a conviction for one of these crimes permanent, but a sentence for up to one year in jail is on the table.

Very briefly, one is guilty of NY PL 190.78 when one knowingly, along with a desire to defraud another, assumes the identity of another person or uses that person’s personal identifying information and either commits another “A” misdemeanor crime (such as unauthorized Use of a Computer) or uses credit or obtains money or property of another person. One is guilty of NY PL 156.05 when one accesses or uses a computer, computer service or computer network without permission.

So, assuming you are charged in Manhattan Criminal Court (or any other court in New York City or New York municipality), how much evidence of guilt must be present in a criminal complaint against you to satisfy the law? In other words, what are the minimum standards that will satisfy a complaint (called an “information” once it is a legal document by which prosecutors can proceed) for these charges? Fortunately, a recent decision stemming from New York County Criminal Court will shed some light on this question. In People v. Agrocostea, 2012NY018993, NYLJ 1202558338625, at *1 (Crim., NY, Decided May 21, 2012), a criminal court judge addressed whether or not in an information (as opposed to at trial, for example) the People must establish how an individual perpetrated these crimes as opposed to merely establishing that the crime was committed.

In Agrocostea, the information against the defendant stated in substance that Steven Goldglit terminated the defendant’s employment. On a later date, an email was sent from Goldglit to an email address apparently belonging to the defendant. The email was praiseworthy. Although the information did not address how the computer service was accessed, Goldglit asserted that not only did he not send the email that contained his signature, but that the defendant did not have permission or authority to access his email or send such an email. Based on this complaint, it was the People’s theory that the defendant committed Third Degree Identity Theft after he used personal identifying information of Goldglit or presented himself as the complainant and thereby committed an “A” misdemeanor. That “A” misdemeanor, Unauthorized Use of a Computer, occurred when the defendant accessed the email system and sent an email from Goldglit’s account without authority.

The defendant sought dismissal of the charges because the information was not sufficient to establish he committed NY PL 156.05. More specifically, it did not establish how the defendant accessed the computer/email and that he did so knowingly.

The court addressed the charge of NY PL 156.05 and stated:

“[T]he statute does not require that the People allege precisely how the defendant accessed the informant’s email account, but merely that the defendant knowingly used or accessed the informant’s computer or computer network without permission.” Further, the court recognized that there was reasonable cause to believe (a lesser standard than beyond a reasonable doubt) the defendant accessed the computer system and email of the defendant as he was recently fired. Only a short time later did he receive this email praising his work. Such an email was, as the court reasoned, a tool for future employment.

As to the second charge, NY PL 190.78, the court found it facially sufficient as well, stating that the information set forth that the defendant assumed Goldglit’s identity by sending purported emails from Goldglit to potential employers with the intent to defraud those employers into believing that the emails and content contained therein was from Goldglit.

The relevance of the above case is fairly clear in that it shows the relatively nominal requirements that prosecutors must meet to establish facial sufficiency in a Identity Theft or Unauthorized Use of a Computer arrest. Further, this case shows that not all computer crimes or other frauds are large scale schemes. Even your one time “stupid” conduct can land you in front of a judge or behind bars.

To educate yourself about New York’s Identity Theft crimes and laws as well as Computer crimes and offenses, either follow the links above or go directly to the Identity Theft section and Computer Crime section of CrottySaland.Com. There you will not only find analysis of various statutes, but links to blog entries where legal decisions and cases in the news are further addressed.

Crotty Saland PC is a New York criminal defense firm. The New York criminal lawyers at Crotty Saland PC represent clients accused of Identity Theft, Computer Crimes and other frauds in New York City and the suburban region.

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