In a New York Identity Theft Prosecution Must the Prosecution Prove the Alleged Victim Suffered an Irreversible Financial Loss

New York Identity Theft investigations, arrests and prosecutions present themselves in a variety of ways. There are the fairly routine credit card theft and use cases and the more complex web of identity takeovers that extend to social security numbers and other personal identifying information. Although there are different subsections and degrees of New York Identity Theft (New York Penal Law 190.78, New York Penal Law 190.79 and New York Penal Law 190.80), one of the means by which these crimes are prosecuted is through establishing a “financial loss” to the complainant. As a former Identity Theft prosecutor who was part of a grant that led to the establishment of the Manhattan District Attorney’s Office Identity Theft Unit, the predecessor to the Cyber Crime and Identity Theft Bureau, I can tell you that “financial loss” can be in the multiple millions or in the single digits.

Irrespective of the actual “financial loss” suffered, a competent and knowledge New York criminal lawyer or Identity Theft defense attorney needs to fully comprehend the definition and meaning of “financial loss.” People v. Rosario, 2013 NY Slip Op. 23260 (Sup. Ct. New York) helps do just that.

In Rosario, the defendant was employed as a home aide for Victim #1 and his girlfriend, Victim #2, when the complainants began to notice their bank accounts were being depleted. A police investigation took place in which it was determined that the defendant used the victims’ “bank account numbers and personal identifying information to make both payments to her own credit cards and unauthorized purchases for her and her family.” None of the purchases were made with the permission of the victims. Eventually, however, the victims’ banks reimbursed both victims in full for the unauthorized transactions.

The defendant was arrested and charged, inter alia, with two counts of Identity Theft in the First Degree pursuant to New York Penal Law 190.80(2). Post trial, defendant brought a motion to set aside the jury verdict on the grounds that the court erred in providing to the jury a definition of “financial loss” which is not defined within the Identity Theft statute. The court denied this motion and upheld the jury verdict.

In getting to the merits of this case, the court first looked at NY PL 190.80(2) which states that “a person is guilty of identity theft in the first degree when he or she 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:…2. causes financial loss to such person or to another person or persons in an aggregate amount that exceeds two thousand dollars…”. Since the term “financial loss” is not defined under NY Penal Law, the jury, during deliberations, asked the judge for a solid definition of “financial loss.” The court, after much discussion, determined “financial loss” to mean as follows: “[l]oss is not the ultimate harm suffered by the victim, but is rather the value of what was taken. Loss includes the value of all property taken, even though all or part of it was returned.” U.S. v. Arjoon, 964 F.2d 167 (2nd Cir. 1992).

In developing their definition of “financial loss”, the court relied on federal cases and guidelines, in the context of financial crimes, and noted that the legislative intent of the Identity Theft statute was to provide for “reparation for the actual out-of-pocket loss caused thereby and…any costs or losses incurred due to any adverse action taken against the victim” NY PL 60.27(1). Essentially, the law is concerned not only with “out of pocket losses to individual consumers but to all losses extending even to situations where money is ultimately reimbursed.”

Applying the facts to the law, the court determined that since the victims were deprived of their money in the period between the unauthorized transactions and bank reimbursements, financial loss occurred because the money, in that period, was not available to the victims. In addition, the banks experienced financial loss because they were forced to reimburse, and ultimately shoulder, the unauthorized transactions. Therefore, based on all of this, the court denied the defendant’s motion and both Identity Theft charges were upheld.

To understand each offense enumerated in the New York Identity Theft Crimes statutes, from the misdemeanor offenses to the multiple felonies, a review of the NewYorkCriminalLawyerBlog.Com (linked below or searchable on this site) or the content above will provide extensive information on crimes, statutes, legal decisions and cases in the news.

A New York criminal defense firm, the New York criminal lawyers and former Manhattan prosecutors at Crotty Saland PC represent clients in Identity Theft and associated crimes in the New York City area.

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