Criminal Impersonation in New York
Impersonating others has become easier and easier. Information is readily available about other people on the Internet. Communications through the Internet are impersonal and difficult to verify. Documents, like ID cards, are easy to duplicate with modern technology.
There are different reasons someone may assume a false character. They may be attempting to hide their true identity. Or they may be attempting to use the status of another for their own benefit.
There are three statutes that prohibit using phony identities. The first is “false personation,” the least serious offense, a class B misdemeanor. The second is “criminal impersonation,” which comes in first and second degrees. The second degree is a class A misdemeanor, while first-degree is a class E felony.
False personation, the least serious of the offenses, is misrepresenting your name, date of birth, or address to a police officer with intent to hide your true identity. Whenever you give a police officer a phony name, address or date of birth, you are committing false personation.
It differs from the criminal impersonation statutes since you’re not assuming the identity of someone else, you are just giving false information about who you are. It usually occurs, though when you are afraid that giving your true identity will get you in trouble
Are People Aware of False Personation?
The statute recognizes that many people may be unaware that giving a false name, address, or date of birth to a police officer is against the law. Therefore the law requires that the police officer must warn the person that giving false information will subject them to criminal liability. Then the person has another chance to give correct information.
It is only after they have been warned of the consequences of giving false information that they may be violating the law. The officer does not have to elaborate on the penal consequences; it is sufficient if the officer warns the person that additional charges could be brought if he gives false information. As you can imagine, it frequently occurs when minors are questioned by the police.
If a 14-year-old child tells a police officer that he is 16 years old, he can be charged with false personation, if he is adequately warned that giving false information can result in additional charges, and persists with the misrepresentation.
Is it possible to arrest someone that has provided false personation?
It is not uncommon for false personation to be the justification for an arrest that leads to the discovery of a different or additional crime since the suspect usually is lying to cover up something. Once the suspect is discovered to have provided a false name, address or date of birth information, there is probable cause to arrest them and conduct a search incident to the arrest.
So the initial questioning of the person can lead to evidence of other crimes. Does the first question then become the initial questioning of the person proper? If the initial questioning was unconstitutional, any evidence discovered thereafter must be suppressed.
When can an officer ask you questions?
The Constitution gives people the right to be left alone. There is no obligation to speak with anybody, police officer or not when they ask you questions. There are certain triggers that permit a police officer to intrude into your privacy and ask you your name, address, or other information.
The Court of Appeals has established rules that have four levels of inquiry when police encounter individuals.
- First, a police officer can ask a person for information, but they must have, beforehand, an “objective, credible reason” for doing so. It doesn’t have to involve criminality, but there has to be some real reason that the officer can point to, other than mere whim or general suspicion. If the person being questioned reasonably believes they are suspected of some wrongdoing, this automatically bumps the encounter up to the second level.
- At the second level, the police officer must have a “founded suspicion” that there is some criminal activity taking place. This gives the officer a “common law right of inquiry,” which allows them to make inquiries to determine whether someone is engaged in criminal activity.
The police have the right to inquire, but at this first and second level, there is no obligation or requirement that the person answers the questions. The person has the right to ignore the officer and walk away.
- It is only at the third level that a police officer may forcibly stop and temporarily detain an individual. At this level, the officer must have a “reasonable suspicion” that the individual stopped is committing, has committed, or is about to commit a crime.
- At the fourth level, a police officer is authorized to make an arrest, because he has “probable cause” to believe that a person has committed a crime. When an officer asks an individual to provide identification or destination information, they can’t do it just on a whim, and the courts will scrutinize whether they had a real reason to ask the person questions.
The officer must be able to articulate a reason. Admittedly this is a low bar, ]but even if the officer has such a reason, he is limited to asking basic information in a non-threatening manner. In other words,he has to ask for the information, and he cannot command the production of the information.
Can police officers have the right to demand a person’s information anytime?
If the person has not been observed committing any offense, and there is no report that they committed a crime or violation, police cannot demand that the person stop and produce identification. They can ask, but there is no obligation on the person to produce information.
The issue often arises when an officer is investigating whether a young looking person is consuming alcohol. A common situation provides a good example of analysis.
- In People v. Kathleen C., the court reviewed body camera footage of a police-citizen encounter. Several policemen had responded to a noise and underage alcohol party complaint at a college. They observed 50 to 75 students in residence and on the surrounding street and sidewalk, some holding beer cans and plastic cups.
The police passed by a male student who was holding a beer can on a public sidewalk, in violation of city regulations; they did not ask that student for identification. A second later, the officer encountered a young female student who was holding a plastic cup containing a clear liquid.
The officer put his flashlight on the student, and asked for her ID, and motioned in a commanding manner for him to come towards him. The student did so, and produced a license, but said she was drinking water.
The officer did not even look into the cup, he ignored the contents of the cup, but instead looked at the license that was produced, saw the picture didn’t match – it was her older sisters ID – and started questioning her about her true identity. He then arrested her for criminal impersonation in the second degree. (Because she moved when the officer cuffed her, he threw in charge of resisting arrest.)
The student’s parents were attorneys, and they moved to dismiss the information. The court’s analysis conveys the significance of the constitutional protections involved when an officer ask you for identifying information.The court started off by pointing out that each stage of the officer’s encounter with the individual must be justified, must be constitutional. In the beginning, a level I inquiry, the officer must have a credible, objective reason to inquire, and can only ask questions in a non-threatening manner.
The decision to question the person cannot be based on mere whim or curiosity. If the questioning immediately jumps to demanding identification, in a commanding, suspicious manner, the officer must satisfy level III inquiry, and there must be a “reasonable suspicion” that the individual is committing, has committed, or is about to commit a crime.
The court concluded that under the facts shown by the body camera, a suppression motion must be granted, resulting in dismissal of all charges, because the command to produce the ID was an unauthorized police encounter.
The fact that there was a party going on, with the likelihood of underage drinking – arguably a “high crime vicinity” – did not provide a sufficient nexus to the defendant’s conduct to provide a particularized reason to demand information from her. The officer could have asked, in a non-threatening way, for the student to present identification, and if the defendant voluntarily produced a fake ID, he could have arrested her.
But the officer had no right to command the student to produce an ID. Once he unconstitutionally intruded on her right to privacy, his conduct was tainted, and all evidence obtained thereafter had to be suppressed.
So false personation charges, as well as criminal impersonation charges, always require an initial analysis of the police-individual encounter, to evaluate whether the initial questioning was constitutional.
First and Second Degree Impersonation
Criminal impersonation is impersonating another person, or pretending to be a representative of a person or organization, and then using that person’s identity to obtain a benefit, to inflict an injury, or to defraud someone.
Second-degree criminal impersonation can be when a person pretends to be a public servant, with the intent of inducing another person to submit to his authority. The obvious example is telling someone, “I’m a police officer, get out of the car.” Or showing someone a police badge. Even calling 911 and identifying oneself as a police officer in need of assistance is criminal impersonation in the second degree.
But second-degree impersonation does not have to be of a public servant. It can be an impersonation of any person, any assumed character. It can be a representative of an organization or just a private citizen. It can be done in person, or through other forms of communication, like an e-mail or Internet website.
What’s the difference between first and second-degree impersonation?
The difference between first and second-degree impersonation is that with first-degree, the impersonation is of a police officer or federal law enforcement officer, only, not just any person.
Also, another difference is the intent behind the impersonation. In the second degree, the impersonation must be made with the intent to induce another to submit to the pretended authority. For example, trying to get someone to leave you alone by saying you are a police officer satisfies the intent element.
With first-degree, the impersonation must lead to committing, or attempting to commit a felony.
The first degree includes impersonating a person authorized to write prescriptions.
Intent to Obtain A Benefit, or Injure or Defraud
First and second degree both require that the impersonation is done with “intent to obtain a benefit or to injure or defraud another.” This has traditionally involved monetary fraud or interference with governmental operations. For example, using a family member’s name to apply for a loan is a criminal impersonation.
The “intent to obtain a benefit” element may also consist of the desire to avoid apprehension or prosecution. For example, a driver involved in an accident was guilty of criminal impersonation by calling the police station and pretending to be the owner of the other vehicle, saying she did not want to pursue criminal charges.
Most injury and fraud under the criminal impersonation law involves monetary fraud or interference with governmental operations. But an injury to reputation can result in “real harm,” even without pecuniary loss. The Court of Appeals has held that injury to reputation is within the “injury” protected by Penal Law §190.25.
They noted that people with careers in academia, like in Golb, value their reputation as much as their property, and that reputation was intended to be protected by the criminal impersonation laws.
People vs. Golb
In Golb, the defendant pursued an extensive campaign to discredit the victim’s theory concerning the Dead Sea Scrolls by sending out phony emails and web blogs. Wherein he claimed to be other people impugning the victim and his theory. The Court held that the “injure” or “defraud” parts of criminal impersonation included intention to discredit and injure another person’s reputation.
The terms are not limited to tangible harms, like financial harm. The dissent in Golb argued that allowing phony internet posts and emails impersonating others to be prosecuted as criminal impersonation could criminalize a vast amount of speech that the First Amendment protects, so the statute is overbroad and therefore unconstitutional.
Chief Judge Lippman would have said injuring someone’s reputation through the use of phony internet posts and emails could only be redressable as a civil tort, libel, not through the criminal impersonation statutes. The majority emphasized that the defendant’s campaign was “more than a prank intended to cause temporary embarrassment or discomfiture.. there was intent to do real harm.” They distinguished parody.
In the parody, there are two simultaneous messages: that it is the original, but also that it is not the original and is instead a parody.
When a message only contains the first prong – that it is the original, that the purported authors are the actual authors – it becomes clear that the sender intends that the recipients’ reliance would cause harm to the purported authors, and thereby give benefits to the sender.
“Benefit,” meaning “any gain or advantage,” includes receiving a boost in one’s reputation through damaging another’s reputation.
It can be seen that the potential to commit serious impersonation crimes have been magnified through the communication abilities of the Internet.
The courts have responded accordingly, reacting to the “felt needs” of the times by embracing the many dangers presented by the anonymous communication ability of the Internet. The New York State criminal impersonation statutes have become a major tool for protecting the rights of people.