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Articles Posted in Computer Crimes

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).

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It is not uncommon for prosecutors to seek a prison sentence or term of imprisonment for a defendant accused of and arrested for a computer related crime in New York. Although the crimes are generally viewed as white collar crimes and the potential sentences are not as significant as violent or drug crimes, the growing view is that these crimes should no longer be treated with “kid gloves.” While I cannot cite any specific article, it is my opinion as a New York criminal lawyer who handles computer crime investigations and arrests, that prosecutors are taking computer crime offenses more seriously. I believe prosecutors are taking this position because they want to send a message to NYS legislators, as well as those who may commit these crimes, that the government should increase the penalties. If they do not, prosecutors will pursue significant punishment on their own.

With a little personal opinion behind us, the term “computer crime” is vast and encompasses many offenses in New York (each state and the federal government define these crimes differently). In People v. Puesan, 2013 NY Slip Op. 06530 (1st Dep’t 2013), an appellate court addressed four different computer-related crimes. In this case, the defendant, while on leave from his job, and therefore unauthorized to enter its offices or use its computers, entered his employer’s office and installed a keystroke logger computer program on three of the employer’s computers. As a result the defendant was able to use the information he wrongfully obtained with the keystroke logger to gain access to another company program that stored customers’ confidential information (danger, danger!).

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With prosecutors seeking to protect proprietary and “secret scientific” information of financial, research, medical and other commercial institutions, it should come as no surprise to criminal defense lawyers regularly practicing in New York courts or those accused of crimes involving computers that Unauthorized Use of a Computer is potential crippling offense. The “lowest” of all New York’s computer crimes, Unauthorized Use of a Computer, an “A” misdemeanor pursuant to New York Penal Law 156.05, occurs when you knowingly use, cause to be used, or accesses a computer, computer service, or computer network without permission. Again, while NY PL 156.05 is not as significant as other New York computer crimes, it is likely one that if convicted would result in not merely your termination from your current employer (assuming it involved an employer-employee relationship), but would be a red flag on any future employment.

Defined in the New York Penal Law, computer service and network are critical terms to analyze in a Unauthorized Use of a Computer arrest. However, equally important is to these elements is whether or not your use of the computer was authorized. In People v. Klapper 2009NY032282 (Crim. Ct. New York County, Decided April 28, 2010), a Manhattan Criminal Court judge issued a surprising decision that puts into question what we all believe is the basis or foundation of permission and authority.

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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.

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Computer crimes in New York City and throughout New York State are no longer the crimes of the future, but the crimes of today. New York criminal defense attorneys and prosecutors alike are seeing cybercrimes and computer crimes being perpetrated in new schemes and in more creative manners almost daily. Having said that, while the means by which computer crimes such as Computer Tampering, Computer Trespass, Unauthorized Use of a Computer and Unlawful Duplication of Computer Related Material are perpetrated, statutorily defined defenses have remained the same. To be clear, there are many ways your criminal defense attorney may ascertain the best defense against a criminal allegation, but in the realm of computer crimes there are specific defenses set forth in the New York Penal Law pursuant to section 156.50.

New York Penal Law 156.50(1)

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Like identity theft crimes, cybercrimes and computer related offenses are becoming more prevalent in New York. In fact, the Manhattan District Attorney’s Office has a unit, the Cybercrime and Identity Theft Bureau, whose main focus is to prosecute this criminal activity. One particular crime, among many, that may be established with relative ease by prosecutors is the crime of Computer Trespass pursuant to New York Penal Law section 156.10. Computer Trespass is defined as follows:

A person is guilty of Computer Trespass when he or she knowingly uses, causes to be used, or accesses a computer, computer service, or computer network without authorization and:

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According to a Manhattan District Attorney’s Office press release, the New York County District Attorney has announced the formation of another “new” bureau. District Attorney Vance’s Cybercrime and Identity Theft Bureau technically ratchets up the current Identity Theft Unit to formally add the investigation and prosecution of cybercrime. In reality, many of the prosecutors assigned to the Major Case Section of the Identity Theft Unit had already been investigating and prosecuting these crimes. However, District Attorney Vance is taking the necessary steps to expand the unit into a bureau. Additionally, District Attorney Vance is increasing the number of prosecutors who will “specialize” in this area while further training them in this dynamic area of criminality and law.

From the perspective of law enforcement, a bureau such as this is a much needed arm of the District Attorney’s Office. The original unit, founded by two outstanding attorneys and prosecutors no longer with the office, was on the forefront of cybercrime and identity theft investigations when it was created in 2004. Having been one of the original prosecutors assigned to the Identity Theft Unit and the Major Case Section upon their respective creations, I not only learned from these two prosecutors and obtained training in forensics and the investigation of computer crimes, but witnessed firsthand the ease by which these crimes were perpetrated and the creativity of those who sought to benefit from this criminality. The transition of this unit into the new bureau not only displays District Attorney Vance’s recognition of the magnitude of these types of crimes, but is a testament to the dedication, work and efforts of the two founders of the unit as well as those currently working there, to bring the Manhattan District Attorney’s Office into the new era of identity theft and cybercrime investigations.

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Computer crimes have become more rampant as computers have become a part of every day life from lap tops and ipods to pdas and even cell phones. As a result, it is no longer atypical to find individuals charged with computer crimes such as Unauthorized Use of a Computer, Computer Trespass, Computer Tampering, and Unlawful Duplication of Computer Related Material. Both Jeremy Saland and Elizabeth Crotty, founding members of Crotty Saland PC,served as prosecutors under Robert Morgenthau in the Manhattan District Attorney’s Office and received hands on training to deal with these and other crimes. Whether it was representing clients in computer related matters as their criminal defense attorney, prosecuting targets for these crimes or taking classes in computer offense, Crotty Saland PC, has the skills and real experience to assess your case and mount the best possible defense.

In conjunction with examining the strength and weaknesses of the case, one of the first places to start an analysis of a computer crimes case is to go directly to the Penal Law. Section 156.60 lays out some specific defenses as follows:

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