Identity Theft in the Third Degree & Your Criminal Defense: A Legal Definition and Application of New York Penal Law 190.78

Throughout New York City, from Manhattan and the Bronx to Queens and Brooklyn, prosecutors have seen an enormous increase in crimes relating to Identity Theft pursuant to New York Penal Law sections 190.78, 190.79 and 190.80. This increase in related crimes has resulted in extensive investigations and indictments of single individuals as well as global organizations such as the Western Express Cybercrime Group and its members Viatcheslav Vasilyev, Vladimir Kramarenko, Egor Shevelev, Dzimitry Burak and Oleg Kovelin. As a former Manhattan prosecutor who was the most senior ADA assigned to the Identity Theft Major Case Section upon that unit’s creation, I not only have extensive experience prosecuting and building cases against those accused of Identity Theft crimes, but representing those charged with these offenses as well. Before discussing scenarios involving these offenses, this entry will deal specifically with the crime of Identity Theft in the Third Degree (NY Penal Law 190.78) and the relevant underlying definitions. Future entries will address Identity Theft in the Second (NY Penal Law 190.79) and First Degree (NY Penal Law 190.80).

Here we go…

、 190.77 Offenses involving theft of identity; definitions.

1. For the purposes of sections 190.78, 190.79 and 190.80 of this article “personal identifying information” means a person’s name, address, telephone number, date of birth, driver’s license number, social security number, place of employment, mother’s maiden name, financial services account number or code, savings account number or code, checking account number or code, brokerage account number or code, credit card account number or code, debit card number or code, automated teller machine number or code, taxpayer identification number, computer system password, signature or copy of a signature, electronic signature, unique biometric data that is a fingerprint, voice print, retinal image or iris image of another person, telephone calling card number, mobile identification number or code, electronic serial number or personal identification number, or any other name, number, code or information that may be used alone or in conjunction with other such information to assume the identity of another person.

2. For the purposes of sections 190.78, 190.79, 190.80, 190.81, 190.82 and 190.83 of this article:

a. “electronic signature” shall have the same meaning as defined in subdivision three of section three hundred two of the state technology law.

b. “personal identification number” means any number or code which may be used alone or in conjunction with any other information to assume the identity of another person or access financial resources or credit of another person.

Now for the actual crime of Identity Theft in the Third Degree (PL 、 190.78) after the jump…
A person is guilty of Identity Theft in the Third 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:

1. 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; or

2. commits a class A misdemeanor or higher level crime.

Identity Theft in the Third Degree is a class A misdemeanor is punishable by up to one year in jail.

If you read all the definitions and applied them to the law you would recognize how easy it is to get caught up in this offense. A common way is where you are alleged to have used a credit card belonging to another person. For example, you charge $25 at Duane Reade without the permission of the card holder, sign the receipt and go on your way. Not a big deal, right?

Well, you have obtained goods and used credit of another person by using that person’s personal identifying information. If you did it with the intent to defraud…BANG. You may have just committed Identity Theft in the Third Degree. The real bad news is that you may have actually committed Identity Theft in the First Degree. As will be explained in a later entry, like Identity Theft in the Third Degree pursuant to subsection (2), Identity Theft in the First Degree has a similar clause. That clause, however, gives prosecutors the ability to “bump up” an Identity Theft in the Third Degree to an “E” or “D” felony if you commit Identity Theft in the Third Degree while also committing a felony. For those of you who are not aware, the mere signing of another person’s signature on a credit card receipt after purchasing items without their permission and with the intent to defraud is potentially the “D” felony of Forgery in the Second Degree.

While I may have confused you, one thing should be clear. If you are accused of an Identity Theft crime obtain the assistance of an experienced criminal defense attorney.

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