Identity Theft Crimes in New York: When Concurrent Time May be a Consecutive Sentence

Identity Theft (New York Penal Law section 190.78, New York Penal Law section 190.79 and New York Penal Law section 190.80), one of the more prevalent crimes prosecuted by Assistant District Attorneys in New York, is often associated with offenses such as Criminal Possession of a Forged Instrument, Forgery and Grand Larceny. More often than not, when and if there is a plea to multiple charges in an indictment, the sentences run concurrent. This means that the sentence on all of the crimes run at the same time as opposed to after each other (this is called consecutive). One of the reasons that a sentence is completed this way is because the crimes are all part of the same transaction.

As noted above, in the realm of Identity Theft crimes in New York, the offenses are often times not on an island, but part of other criminal schemes. Therefore, one would hope that if a plea is the best option, that plea would run concurrent to other sentences. Sadly, for one individual, this was not the case.

In People v. Hayes, 71 A.D.3d 1187 (3rd Dept. 2010), the defendant was indicted by a Grand Jury and ultimately pleaded to Identity Theft in the Second Degree for using a fraudulent credit card in the name of another individual and Criminal Possession of a Forged Instrument in the Second Degree for possessing forged and fake credit cards. Ultimately, the defendant was sentenced to five and one half to eleven years in state prison. This sentence was a consecutive. Upon completing his sentence for the Identity Theft for using the credit card in the store, he then had to serve a new sentence for possessing fraudulent credit cards. On appeal, the defendant argued that this sentence was improper for the reasons mentioned above, ie, it was part of the same criminal transaction.

In a very brief, but clear response, the Appellate Division found that the sentence was legal. While the crimes appeared to be all part of the same scheme, the Court ruled that the charges were distinct charges and evolved from separate acts. As a result, a consecutive sentence was appropriate.

While it may be too late for this particular defendant, there are lessons to be taken from this case. First, if you are pleading to multiple counts in an indictment, if your belief is that your sentence will be concurrent make sure the record reflects such a promise or disposition (that should be obvious). Second, while a set of facts and allegations may appear to be part of the same incident, they in fact may not be. Consult with your New York criminal lawyer to ensure, as best you can, that the time you face is concurrent and not consecutive.

Saland Law PC, a New York criminal defense firm founded by two former Manhattan prosecutors, represents the accused throughout the New York City region. Jeremy Saland, one of the founding partners, was one of the original members of the Identity Theft Unit created under Robert Morgenthau in the New York County District Attorney’s Office prior to become a New York criminal lawyer.

For extensive information on the crimes of Identity Theft, Grand Larceny, Forgery and Criminal Possession of a Forged Instrument, please follow the respective links above and go the the New York Criminal Lawyer Blog where you can find criminal statutes, legal decisions and commentary about cases in the news.

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