Is it a Crime in New York to Use an Expired or Revoked Credit Card? NY PL 165.40(2) & NY PL 155.30(4)

Crimes involving credit cards and debit cards are growing throughout New York City and the region. For example, using another person’s credit card may constitute the crime of Identity Theft. Possessing a fake or fraudulent credit card likely violates Criminal Possession of a Forged Instrument. Even more common than these offenses, possessing a stolen credit card or stealing the same is either Criminal Possession of Stolen Property or Grand Larceny respectively. While the felony crimes listed above are all fairly common, not all credit card crimes in New York are that obvious. As will be addressed in this blog entry, what if you possess a stolen credit card, but the credit card is no longer valid or is expired? If you cannot use the credit card, is that a defense to Criminal Possession of Stolen Property in the Fourth Degree pursuant to New York Penal Law 165.45(2)? Will your criminal lawyer have more than just a bark, but in fact a bite in his attempt to invalidate the allegations or have your indictment dismissed?

Directly on point, People v. Johnson, 50 A.D.3d 379 (First Dept. 1995) addressed these questions about the possession of stolen credit cards that had since expired. In Johnson, the defendant had been convicted after trial in a Manhattan Supreme Court for felony possession of a stolen credit card. The crime, as noted above, was Criminal Possession of Stolen Property in the Fourth Degree. At trial, testimony established that the defendant tried to make at least one purchase with credit card that was expired. In one of his many arguments, the defendant’s attorney claimed that a conviction for this crime could not stand in light of the fact that the credit card in question was not and could not be used. Although the argument seemed reasonable (after all, you cannot withdraw money or make purchases from an expired credit card or debit card and therefore, no real injury would be sustained by the true card holder), the trial court gave no such instruction to the jury. Ultimately, the jury convicted the defendant for this and other crimes. Not the end of the process, the defendant appealed the conviction.

The Appellate Division, a higher level appeals court that reviews trial court convictions and decisions, did not agree with the defendant’s counsel. In fact, the court found that it was irrelevant and made no difference at all whether the credit card or debit card had expired. Moreover, it made no difference that when the defendant attempted to use the credit card that the credit card was either revoked or cancelled. The court further found that “[a]n expired or otherwise inactive credit card may be used to make a purchase on credit, within the meaning of General Business Law § 511(1), if a merchant accepts it, albeit improvidently, thus extending credit to the purchaser.” In short, the viability or useability of a stolen credit card is not an element that needs to be proven beyond a reasonable doubt by Assistant District Attorneys at trial for Criminal Possession of Stolen Property in the Fourth Degree.

Although Johnson is a fairly recent decision, it is not the first decision of its kind. After another defendant’s conviction for Grand Larceny of a credit card post-trial, the defendant challenged the legality of the New York Penal Law 155.30(4) count against him. Similar to the Johnson court, albeit in a theft context as opposed to possession, the court in People v. Winfield, 145 A.D.2d 449 (2nd Dept. 1988), upheld the defendant’s conviction and, like the Johnson court, noted that validity of credit card is immaterial to this felony crime.

Remember, stealing or possessing stolen debit or credit cards is only one of many potential felony crimes in New York. An “E” felony that can land you behind bars for up to four years, the punishment associated with this crime is serious, but not necessarily the most significant one found in the New York Penal Law.

To further educate yourself on crimes involving theft, larceny and credit card fraud in New York, a search of the NewYorkCriminalLawyerBlog.Com will reveal significant information ranging from analysis of New York criminal statutes and legal decisions to review of cases in the news and local media. Additionally, Saland Law PC’s NewYorkTheftAndLarcenyLawyers.Com (going live November 2011) and associated blog is dedicated to white collar theft crimes.

Established by two New York criminal lawyers who served as prosecutors in Robert Morgenthau’s Manhattan District Attorney’s Office, Saland Law PC represents individuals and corporations in all criminal matters.

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