Further Analysis of Common New York Computer Crimes: NY PL 156.35, NY PL 156.30 & NY PL 156.05

As New York Computer Crime lawyers and criminal attorneys who defend clients in matters far more technical than street crimes and most White Collar offenses, we do our best not only to stay on top of the law, but to also share relevant legal decisions that impact how prosecutors and judges handle and manage computer related crimes. The following case, People v. Angeles, 180 Misc.2d 146 (New York Crim. Ct. 1999), may not be a recent decision or a high level court case, but is one that should help those arrested for a New York Computer Crime gain a better understanding of the charges he or she may face. Three of the more common offenses that Assistant District Attorneys and other branches of law enforcement investigate and prosecute are addressed. These crimes are Unauthorized Use of a Computer (New York Penal Law 156.05), Criminal Possession of Computer Related Materials (New York Penal Law 156.35) and First Degree Unlawful Duplication of Computer Related Materials (New York Penal Law 156.30). The first of these crimes, NY PL 156.05, is a misdemeanor offense while the latter two, NY PL 156.30 and NY PL 156.35, are both felony crimes.

In Angeles, the police arrested the defendant and Assistant District Attorneys charged the accused with Unauthorized Use of a Computer (Penal Law 156.05), Attempted Criminal Possession of Computer Related Material (Penal Law 10.00/156.35), Attempted Unlawful Duplication of Computer Related Material in the First Degree (Penal Law 110.00/156.30 [1]) and Criminal Possession of Stolen Property in the Fifth Degree (Penal Law 165.40).

Prosecutors had alleged that the defendant sold a computer list of customers that belonged to a car service. The defendant sold this list to an individual in exchange for what else? Cold hard cash. According to the arrest allegation and information, “(i) defendant did not have permission or authority to possess [the] list of customers; (ii) [the] list of customers could only be accessed and printed through [car service’s] computer system; (iii) defendant did not have permission or authority to access or print through said computer system; and (iv) the value of [the] list of customers exceed[ed] two thousand five hundred dollars.” In response, the defendant moved to dismiss the charges.

UNAUTHORIZED USE OF A COMPUTER

New York Penal Law 156.05, Unauthorized Use of a Computer and a top misdemeanor punishable by a year in jail, makes it crime if you knowingly use or cause to be used a computer or computer service without authorization and the computer utilized is equipped or programmed with any device or coding system, a function of which is to prevent the unauthorized use of said computer or computer system.

Seemingly not too convoluted, the defendant argued that because the complaint against him did not allege the computer had a “device or coding system” it was clearly defective and the matter should be dismissed. In dismissing the charge, the court recognized the failure of the District Attorney to adhere to the language of the statute. As stated by the court, “The statute [ ] on its face does not make criminal the mere use or accessing of a computer system without permission or authority. The Legislature has imposed the additional requirement that the computer be ‘equipped or programmed with any device or coding system, a function of which is to prevent the unauthorized use of [the] computer or computer system.’ see, People v Esposito, 144 Misc.2d 919, 923 [Sup Ct, NY County 1989].) The legislative history of the statute makes clear that this requirement was included on the ground that ‘[s]uch protective devices provide the first line of defense against unauthorized intrusion into a computer system.’ (See, Mem of Attorney-General in support of L 1986, ch 514, 1986 NY Legis Ann, at 233.” Further, according to the court, “[t]he Legislature thus put computer owners on notice that in order to receive the protection of the criminal statute, they must equip their computers with some kind of protection mechanism, such as a password requirement or a lock.” Simply, “[t]he mere allegation that an individual has obtained access to a computer without the owner’s authority is insufficient to plead a violation of Penal Law [ ] 156.05.

ATTEMPTED UNLAWFUL DUPLICATION OF COMPUTER RELATED MATERIAL AND ATTEMPTED CRIMINAL POSSESSION OF COMPUTER RELATED MATERIAL

New York Penal Law 156.30(1) establishes the crime of Unlawful Duplication of Computer Related Material when a person, without any permission, copies or duplicates “any computer data * * * and thereby * * * wrongfully deprives or appropriates from an owner thereof an economic value or benefit in excess of two thousand five hundred dollars”. Somewhat similarly, New York Penal Law 156.35, Criminal Possession of Computer Related Materials, prohibits the possession of “any copy, reproduction or duplicate of any computer data * * * which was copied, reproduced or duplicated in violation of [Penal Law ยง 156.30], with intent to benefit himself or a person other than an owner thereof.”

In relation to the above crimes, the defendant contended that the customer list without more specificity should not be legally construed as “computer data.” The court disagreed noting that “the list ‘could only be accessed and printed through [Empire Car Service’s] computer system.’ The statute itself defines ‘computer data’ to include any information that is ‘processed, or ha[s] been processed in a computer’. (Penal Law [ ] 156.00 [3].) Given the broad definition of computer data set forth in the statute, the information’s allegations of this element are sufficient.”

Further, despite another failed attempt for dismissal, the defendant asserted that the proof was not sufficient that he ‘copie[d], reproduce[d] or duplicate[d]’ the data.” According to the court, “[t]hese are expansive terms. To ‘reproduce’, for example, can mean ‘to present again’ or ‘to make a representation (as an image or copy) of.’ (Webster’s New Collegiate Dictionary 982 [1976].) Inasmuch as the information asserts that the defendant printed specific data through the computer system, this is sufficient to satisfy the requirement that the defendant ‘reproduced’ the data at issue.”

Finally, the defendant made one last leap for dismissal of both NY PL 156.30 and NY PL 156.35 arguing that he could not be charged with an attempt to commit both of these offenses. The defendant argued “that it is ‘illogical’ to charge that the computer list at issue was at the same time both a computer list that was improperly possessed and also a ‘copy, reproduction or duplicate’ of the very same computer list.”

As addressed by the court: [T]he Legislature made the act of improperly copying, reproducing, or duplicating computer data a crime (provided there is a wrongful deprivation of property or intent to commit a felony). In Penal Law [ ] 156.35, the Legislature made criminal the possession of the same data (where there is an intent to benefit the defendant or a person other than the owner of the data). The Legislature could properly distinguish these two crimes inasmuch as an individual is capable of causing computer data to be copied without ultimately possessing the data. Such an individual is chargeable under Penal Law [ ] 156.30. If an individual ultimately takes possession of this copied data — regardless of whether the individual was the one who copied it unlawfully — the taking possession would constitute a separately chargeable crime as long as the remaining requirements of section 156.35 are met. These two statutes thus address two different acts that are capable of being committed by the same individual.

A bit wordy and a lot of cut and paste from the actual case, this blog entry hopefully analyzes a growing area of law as concisely as possible. To better understand the New York Computer crimes of Unauthorized Use of a Computer, Unlawful Duplication of Computer Related Material and Criminal Possession of Computer Related Material, follow the links above directly to the respective CrottySaland.Com information page. Further, a search on the NewYorkCriminalLawyerBlog.Com will reveal more fruitful and valuable analysis.

Crotty Saland PC, a New York criminal defense firm founded by two former prosectors, represents clients in Computer Crimes throughout the region.

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