Stealing the Identity of a Non-Existant Person in New York: Understanding New York’s Identity Theft Statute (NY PL Article 190)

If not the fastest growing crime, Identity Theft is exploding in New York at a pace that is equal to or greater than almost all other offenses. As a former Manhattan prosecutor who was one of the original members of the first Identity Theft Unit and as a New York criminal lawyer who represents clients accused of New York Penal Law sections 190.78, 190.79 and 190.80, prosecutors are becoming as creative in investigating New York Identity Theft crimes as the accused are alleged to perpetrate the offenses.

As an Assistant District Attorney, I spearheaded an investigation into a large scale Identity Theft ring that involved individuals giving others permission to “steal” their identities for the benefit of third parties. An interesting theory not clearly addressed in the New York Penal Law, the defense attorneys who represented the accused did not challenge the indictment on the grounds that the evidence did not support Identity Theft in the First Degree. Years later, a similar, yet different, issue is now before the court. That is, can you steal the identity of a person who does not exist? People v. Debranche, 2012 NY Slip Op 22359, Criminal Court of the City of New York, New York County, attempts to answer this question.

Charged in a misdemeanor complaint (legally called an information), the prosecution accused the defendant of Identity Theft in the Third Degree (New York Penal Law 190.78) and Petit Larceny (New York Penal Law 155.25). The information alleged that the defendant and another person opened a cellular account in the name of Avi Natanov. Further it was alleged that neither defendant was named Avi Natanov. There was no explanation as to how the complainant knew that neither defendant was named Avi Natanov. So…if the there is no proof the person exists or that the accused are not the person in question, is a complaint alleging Identity Theft sufficient?

Before getting ahead of ourselves, let’s define Third Degree Identity Theft. A person is guilty of New York Penal Law 190.78 if that person knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby either obtains goods, money, property or services or uses credit in the name of such other person or causes financial loss to such person or to another person or persons. A second subsection starts with the same language, but commits a class A misdemeanor or higher level crime.

The issue before the court was not so much the definition above, but whether “another person” in the language of the statute “means a real, identified person who actually exists (or existed).” Simply, the court answer this in the affirmative. In doing so, the court cited the legislative intent of the Identity Theft statute as follows:

“‘This bill redefines victims of identity theft as those innocent people whose identity and information is actually stolen, and provides that defendants be required to make restitution to victims for any cost or loss incurred by the crime’]).”

Clearly, criminal conduct must be against “another person” and not some make believe man or woman. “Simply put, to open a credit line in another person’s name constitutes identity theft, but to open one using a false name — that is, an alias — does not….Whatever other fraud-related charges might validly be pressed for using a fictitious name to obtain a financial benefit or to cause financial loss, such conduct does not constitute identity theft.”

While the court further addressed why there can be no crime of Identity Theft in New York without an actual or real victim, the ruling is clear. No victim…no crime…

To learn more about the crime of Identity Theft, Petit Larceny or any fraud or theft related crime in New York, review the links above or the blogs and websites below.

Crotty Saland PC is a New York criminal defense practice dedicated to the defense of clients in all criminal matters throughout New York City and the surrounding region. The two founding New York criminal lawyers at Crotty Saland PC both served as prosecutors in the Manhattan District Attorney’s Office prior to establishing the law firm.

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