Criminal Possession and/or Use of a Public Benefit Card in New York
Criminal Possession or Use of a Public Benefit Card in New York
Federal, state, and local governments create public assistance programs to provide individuals with aid in meeting their needs. There are certain requirements to be able to qualify for the benefits, which means not everyone will be able to access the programs. Individuals who attempt to obtain access to these benefits or use them improperly can face criminal charges.
Access to public assistance programs comes through public benefit cards. Crimes addressing the unlawful possession or use of these cards focus on behaviors that are fraudulent or that undermine the purpose of the public programs.
These are some examples of behaviors that would create a risk of charges under these criminal statutes:
- A man needs medical care, but he does not have active health insurance through his employer. He previously had access to the state Medicaid program. Instead of waiting for his employer-sponsored coverage to kick in, he uses the now invalid Medicaid card. He risks charges for unlawful use of a public benefit card.
- A woman who is addicted to drugs seeks to purchase heroin. She does not have money to pay her drug dealer but offers him her food stamps in exchange for drugs. She and the drug dealer both risk charges for criminal possession of public benefit cards.
- In accessing one of the public assistance programs to which he has access, a man is discovered as having six other cards for the program in other people’s names. Unless the cards belong to his family members, the man risks being charged with criminal possession of public benefit cards.
The Legal Definition of Criminal Possession or Use of a Public Benefit Card in New York
There are three crimes related to public benefit cards under New York Penal Law:
1. Criminal use of a public benefit card
2. Criminal possession of public benefit cards
3. Unlawful use of credit card, debit card, or public benefit card
Criminal use of a public benefit card may be charged in the first or second degree. Criminal possession of public benefit cards may be charged in the first, second, or third degree.
All of the crimes involve a public benefit card, which refers to the physical or electronic device that allows a person to receive medical, food stamp, or public assistance from a government program. To better understand each of these crimes involving public benefit cards, it is important to take a deeper look at the elements of each crime.
- Criminal Use of a Public Benefit Card
As mentioned, there are two degrees of this crime. There are more ways to meet the elements of the second-degree offense. To be found guilty of the second-degree offense, a person must be shown to have knowingly done one of the following:
- Accepting a public benefit card as collateral for a loan of money, property, or services;
- Obtaining a public benefit card in exchange for something of benefit;
- Giving a public benefit card to someone in exchange for money or a controlled substance; or
- Giving a public benefit card to someone for the purpose of committing a crime.
The first-degree offense requires that a person knowingly satisfy the elements of numbers 2 and 3 above, but with three or more public benefit cards.
- Criminal Possession of Public Benefit Cards
This crime has three elements:
- Knowing possession
- Public benefit cards that are not in one’s own name
The degree of the crime is triggered by the number of benefit cards in a person’s possession. For the lowest charge, which is a third-degree offense, the person possesses at least five cards. For second-degree charges, the person possesses at least 10 cards. For first-degree charges, the person possesses at least 25 cards.
The intent element is an intent to defraud, deceive, or injure another person. Under the statute, proof of the third element is sufficient proof to create a presumption that the first element is true. That is, having in your possession five or more public benefit cards that are not in your name is suspicious enough on its face to put the burden of proof on you to show that it was not with malicious intent.
- Unlawful Use of a Credit Card, Debit Card, or Public Benefit Card
This crime has three elements:
- The knowledge that a card is revoked or canceled
- Use of the problematic card
- Obtaining or attempting to obtain property or a service
In order to be guilty of this crime, a person could use a card his own name. If he knows the public benefit card is no longer valid but uses it to get the benefit anyway, this would be a crime under the statute.
While the criminal possession or use of a public benefit card is a standalone crime, there are related offenses that may be charged instead of or in addition to the crimes related to the public benefit card. These offenses are identified and described below:
The crime of welfare fraud targets any action that falls under the definition of a “fraudulent welfare act.” A fraudulent welfare act requires the following elements:
- Intent to defraud
- Fraudulent action
A fraudulent action is any one of the following:
- Presenting or offering an application for public benefits containing material falsehoods
- Holding yourself out to be someone else in order to get public assistance
- Using material falsehoods to establish, maintain, increase, or prevent the reduction of public assistance benefits
All three of the illegal possession or use of a public benefit card crimes involve an actual public benefit card. A card may be invalid, but it was issued legally to the right person. Criminal possession or use deal with the actions that came after the appropriate issue of the card.
Forgery crimes, on the other hand, address the creation or possession of a forged instrument. If the following elements are met, a person can be prosecuted for forgery in the second degree:
- Malicious intent
- Creating or altering a written instrument
- A written instrument that is supposed to represent an official government instrument
Important Cases on Criminal Possession or Use of a Public Benefit Card in New York
Cases that cover crimes involving public benefit cards help provide additional information about the evidence required to reach a conviction if charges are filed. Cases also shed light on related offenses and how these might be tied into charges for criminal possession or use of a public benefit card.
- The case of In re Luis C. was a juvenile delinquency proceeding in which a young man was facing accusations that, were he an adult, would have amounted to grand larceny and criminal possession. The young man’s problematic actions were using his grandfather’s debit card number to buy sneakers on the internet.
The court looked at the statute of unlawful use of a credit card, debit card, or public benefit card and found that possession of the debit card number was not sufficient to meet the evidentiary burden of this statute. The court notes that the statute only contemplates physical possession of a credit or debit card.
However, the definition of a public benefit card specifies that a public benefit card can include any “identification, authorization card, or electronic access device.” This definition could be read more broadly than the standard applied for credit and debit cards in this case.
- In People v. Lloyd, the court considered the case of a man who had been charged with multiple crimes after a tip led to the discovery of, among other things, three credit or bank cards, two Social Security cards, and a New York benefit card.
The court noted that in able to prove one of the crimes, the prosecution needed to show that the unlawful possession or use of the cards needed to be with the intent for some gain. The court noted that, where the person is in possession of more than one card, there is a presumption of such intent. This reinforces the statutory presumption in favor of the prosecution on the intent element.
- In People v. Montroy, a woman used a public assistance benefits card improperly. The card was validly issued by the appropriate authorities. However, she did not meet the requirements for recertification. She did not disclose that information and continued to withdraw cash benefits.
Rather than charging for any criminal possession or use of public assistance benefits or even for welfare fraud, the defendant was charged with and convicted of petit larceny and offering a false instrument in the first degree. The actual receipt of benefits on the basis of some fraud rises to the level of a theft crime.
- In People v. Davis, a woman faced charges for welfare fraud and offering a false instrument for filing after receiving housing subsidies based on that false instrument. However, with respect to the welfare fraud statute, the court noted that these housing subsidies do not meet the definition of public assistance benefits.
Therefore, the welfare fraud conviction was overturned. Still, the related crime of offering a false instrument was upheld.
Detection, Investigation, and Prosecution
Given the restricted resources that public programs often have to work with, it is no surprise that there are many groups that could potentially be involved in the detection, investigation, and prosecution of criminal possession or use of public benefit cards.
Generally, these crimes would be detected, investigated, and prosecuted like any other crime. Local or state police may become aware of potential criminal activity and will investigate. If appropriate, charges will be filed, and the case will be prosecuted by the appropriate district attorney’s office.
It is possible that a task force or larger operation may be involved in these crimes are part of a larger scheme to defraud the government. Single cases of criminal possession or use are not likely to be pulled into these bigger investigations.
In New York, the Office of Temporary and Disability Assistance oversees some of the public assistance benefits. The office solicits any information about potential welfare fraud related to public or cash assistance, the Supplemental Nutrition Assistance Program (SNAP), and the Home Energy Assistance Program (HEAP).
On a broader scale, the United Council on Welfare Fraud is an organization that has members from all levels of government in the U.S. and Canada. These members are investigators, prosecutors, and recovery specialists. The United Council works to detect, recover, and prosecute individuals that fraudulently obtain government benefits.
Statutory Penalties for Criminal Use or Possession of a Public Benefit Card in New York
The statutory penalties in New York include fines and imprisonment, which vary depending on the specific offense and the degree of that offense. The possible terms of imprisonment are as follows for each crime:
- Criminal use of a public benefit card in the second degree and unlawful use of a credit card, debit card, or public benefit card are both classes A misdemeanors. This carries a prison sentence of up to one year and a fine of up to $1000.
- Criminal use of a public benefit card in the first degree and criminal possession of public benefit cards in the third degree are both class E felonies. This carries a prison sentence of up to four years.
- Criminal possession of public benefit cards in the second degree is a class D felony, which carries a prison sentence of up to seven years.
- Criminal possession of public benefit cards in the first degree is a class C felony, which carries a prison sentence of up to 15 years.
The fine for the misdemeanors is up to $1000. The fine for felonies is the higher of $5000 or double the amount of the gain from the unlawful act.
Additional Consequences of Conviction
Criminal convictions, no matter the gravity or actual sentence, drain one’s time, energy, and resources. If you are convicted of criminal possession or use of a public benefit card, you will have a record of deceiving the government. This may impair any future ability to access public programs or cause you to be regarded with suspicion from the public programs in the future.
If you are genuinely in need of assistance in the future, this could create additional financial burdens on you. The financial burdens are not limited to the public assistance benefits programs for which you may face impaired access. Facing charges and attempting to defend yourself can be costly and you will likely have to miss work.
This time that could have been spent making money will be spent instead on meeting with investigators and prosecutors or going to court. Moreover, if you are convicted, you will have to pay some sort of fine and will likely face at least some prison time. That is more time that will cost you in lost earnings.
Are there intangible consequences?
There are also a number of intangible consequences. First, you are not the only person impacted by the stress of the process. Your loved ones will also suffer and even more so if you spend time away from them in prison.
Second, your reputation will remain tarnished by this episode. With how there is a record of everything on the internet, anyone searching for you in the future may be able to find this record.
Legal Defenses to Criminal Use or Possession of a Public Benefit Card in New York
It is possible to defend yourself against charges of criminal use or possession of a public benefit card. However, it may be challenging and will require navigating the case law and the presumptions that are common in this area of the penal law.
As seen in the statute, there is a rebuttable presumption of malicious intent. This presumption was further supported in the case of People v. Lloyd. However, a presumption can be overcome, but it requires a strong defense. In the statute, the presumption has outlined a few exceptions in which case the prosecution would need to be able to prove intent separately. The exceptions to the presumption are:
- Government officials that possess public benefit cards (in the course of official duties)
- Possessing cards that belong to immediate family or household members (with their consent)
- Home health or personal care providers, or agents of a treatment facility or foster care (in the course of official duties)
If it is possible to show that a person met one of these exceptions it would help rebut the presumption and the prosecution would have to show other evidence to demonstrate that there was malicious intent.
- Even if the exception does not apply, a defense tactic could be to show that there was a genuine or good faith belief that a person was acting in a capacity consistent with one of these. If so, it could help undermine the presumption by demonstrating that the person did not have any malicious intent.
defense tactic, specific to the criminal use offense, is to focus on the
alleged purpose of the transaction involving a public benefit card.
If whatever was exchanged can be linked to some other item besides the
public benefit card, it can help show that the elements were not
- For example, if the argument was that there was a loan, a defense tactic could be to show that there was some other collateral or other evidence to indicate the money was actually a payment for something else.
the unlawful use offense, contending the purpose of using the problematic
public benefit card could help show that a person was not trying to obtain
- For example, she may just be attempting to determine if a card was still valid.
- Finally, as with intent, proving knowledge may require overcoming certain presumptions about what a person is expected to know. A defense strategy may be to demonstrate that the circumstances presented should be interpreted in a different way.
In presenting an alternative reading of the situation, doubt is cast on the conclusions drawn by the prosecution. That doubt can help avoid a conviction on any charges of criminal use or possession of a public benefit card.
Let Us Help You
You do not need to face these charges alone. From the moment that investigators are involved, a criminal attorney can begin offering assistance. In the beginning, a lawyer would serve to handle communications with officials. This can be useful in handling the conversations without the emotional aspect of being the one facing the consequences.
Your lawyer can also help evaluate any plea deals, and also negotiate for a better deal. These arrangements can shorten the process you face, minimize risk, and take the unknown factors out of the equation. While plea deals can be attractive for that reason, it is important to get the best option for you or know when to reject an offer.
If you have to go to court, a defense attorney can bring experience to provide you the best chance possible. We are ready to fight for you and have local criminal law offices that you can speak to today.