Criminal Use of an Access Device in New York

In the state of New York, the law indicates that those who use an access device means they’re attempting to use an account number, card, plate, or another form of identity. The purpose of accessing these devices is to obtain goods, money, or services, or so an individual can initiate the transfer of funds.

Under most circumstances, a person is found guilty of knowingly using an access device if they’re using it without the owner’s consent to obtain telecommunication services unlawfully.

These charges will occur in the second degree, and it’s a misdemeanor that’s punishable by either a fine up to $1,000, one year in prison, or both. Examples of the kinds of actions that may lead to this kind of criminal charge include the following.

Example: The following are examples of situations where charges of Criminal Use of an Access Device in New York may be filed:
- An individual using a debit card without someone’s permission.
- Someone is making purchases with a counterfeit credit card.
- You are using stolen social security cards to assume someone else’s identity.

The Legal Definition of Criminal Use of an Access Device in New York

Article 190 and 170, sets out the legal definition of Criminal Use of an Access Device in New York. Criminal Use of an Access Device in New York is a misdemeanor under Article 190 and a felony under Article 170 according to state criminal laws.

The “elements” of Criminal Use of an Access Device in New York are the things that the prosecutor must prove for you to be found guilty of this offense. For a defendant to be convicted in a criminal trial for Criminal Use of an Access Device in New York under Article 190 and 170, all of the following must be true:

Specific Intent: The defendant must have knowingly begun using the access device without express permission from the owner.
Acting Purposely: Those facing charges must have had the intent to obtain telecommunication services unlawfully either for themselves or on behalf of another individual.
Has More than One Intent: The prosecution must prove that the services the defendant was accessing was fraudulent and exceeds $1,000.
Knowing: The person found guilty must be knowingly forging an instrument with the intent to deceive, injure, or defraud another.

Let’s delve a bit more deeply into these elements of the crime of assault to understand their meaning better.

Element #1: Specific Intent

Wannabe socialite who posed as German heiress convicted in a fraud case after two days of deliberations. Those acting with “specific intent” have a higher level of awareness regarding what they’re doing or about to do.

These crimes typically mean the defendant intends to cause a fraudulent result, do more than commit the act, or act with the knowledge that their conduct is unlawful.

For example, John is a cashier and, when he rings up a customer, they leave behind their credit card. Instead of returning it to them, he puts it in his pocket to use later. Had he returned the credit card to the customer, instead of deliberately putting it in his pocket, he would have avoided being guilty of specific intent.

Element #2: Acting Purposely

Manhattan Man Convicted in Two Identity Theft Schemes. When a defendant acts “purposely,” they intend to cause particular results. While this element resembles specific intent, it differs due to the nature of the defendant’s conduct and the effects.

For example, an individual who purposely takes another’s driver’s license or social security number doesn’t intend to return it to them. They know it’s going to cause specific harm to that individual, but they continue acting purposely to achieve a specific result despite the consequences.
Another example: Danielle steals a passport and driver’s license from a purse in a restaurant before driving across the country to assume a new identity. Danielle knew that, if she stole those documents, it would cause harm to the other individual. However, she took them anyway because she had a goal she wanted to achieve.

Element #3: Has more than one intent

Attorney General James Announces Court Decision Allowing Continuation Of Multistate Fraud Case Against Harris Jewelry. When a crime occurs with more than one criminal intent, like the services accessed were fraudulent and they exceeded $1,000, this means the prosecution must prove more than criminal intent has reasonable doubt.

Under some circumstances, this occurs when a crime involves more than one criminal element and requires the prosecution to test each one for the offense.

For example, Derek stole his grandfather’s credit card and pretended to be him while making over $1,000 in purchases over the phone. He wasn’t making purchases for his grandfather, but for himself. Had he asked for his grandfather if he could make purchases over the phone and pay him back, he may be facing different circumstances.

Element #4: Knowing

People v Mitchell. When the defendant is aware of the outcome of their actions, as well as the probable consequences, they’re acting in a “knowing” manner. While this may sound like the defendant is acting purposely, it differs because they’re not acting toward a particular outcome.

However, the defendant knows that they’re doing is wrong and will cause consequences.

For example, Jessica works for a check processing service and notices many checks aren’t signed. Instead of processing them, she keeps them, signs the checks, cashes them, and pockets the money. Had Jessica showed them to her supervisor and processed them correctly, she wouldn’t have been caught on camera for committing forgery.

Federal Statutes

US Code Title 18 – CRIMES AND CRIMINAL PROCEDURE, PART I – CRIMES: CHAPTER 47 – FRAUD AND FALSE STATEMENTS, Sec. 1029- Fraud and related activity in connection with access devices sets out the legal definition of Criminal Use of an Access Device in the federal government. Criminal Use of an Access Device under federal law is a felony under this statute.

The “elements” of Criminal Use of an Access Device in the federal government are the things that the prosecutor must prove for you to be found guilty of this offense. For a defendant to be convicted in a criminal trial for Criminal Use of an Access Device in this statute, all of the following must be true:

Specific Intent: The defendant has or using at least fifteen or more devices without authorization.
Acting Purposely: Those facing charges must be using, producing, or trafficking another individual’s counterfeit devices.
Has More than One Intent: The prosecution must prove that the services the defendant was accessing was fraudulent and exceeds $1,000 in a single year.
Knowing: The person found guilty must be knowingly forging an instrument with the intent to deceive, injure, or defraud another.

Let’s delve a bit more deeply into these elements of the crime of assault to understand their meaning better.

Element #1: Specific Intent

Worcester Man Sentenced for Fraud and Identity Theft. Those acting with “specific intent” have a higher level of awareness regarding what they’re doing or about to do. These crimes typically mean the defendant intends to cause a fraudulent result, do more than commit the act, or act with the knowledge that their conduct is unlawful.

For example, Stephen works at a gas station and starts skimming credit cards numbers from the processor. He brought a credit card skimmer to work with him every day so he could get the numbers.

Element #2: Acting Purposely

Supreme Court takes up Kansas identity theft case. When a defendant acts “purposely,” they intend to cause particular results. While this element resembles specific intent, it differs due to the nature of the defendant’s conduct and the effects.

For example, an individual who purposely takes another’s driver’s license or social security number doesn’t intend to return it to them. They know it’s going to cause specific harm to that individual, but they continue acting purposely to achieve a specific result despite the consequences.
Another example, Barbara is a college student struggling to pay her bills, so she sells fake identification to underage classmates to make extra money on the side. Barbara gets the fake identification from a third-party knowing their illegal documents but sells them anyway.

Element #3: Has more than one intent

Georgia Woman Charged with Credit Card Fraud and Aggravated Identity Theft Conspiracy. When a crime occurs with more than one criminal intent, like the services accessed were fraudulent and they exceeded $1,000, this means the prosecution must prove more than criminal intent has reasonable doubt.

Under some circumstances, this occurs when a crime involves more than one criminal element and requires the prosecution to test each one for the offense.

For example, Stephanie found a way to hack into her classmate’s PayPal accounts and used them to transfer funds into a non-descript account. That way, it looked like they made a weird purchase and she could use the funds to pay bills. After spending over a year doing this, she amassed thousands of dollars in transfers. She got sloppy by using a library computer and was caught.

Element #4: Knowing

Man sent to federal prison for counterfeit check fraud in 3 states. When the defendant is aware of the outcome of their actions, as well as the probable consequences, they’re acting in a “knowing” manner. While this may sound like the defendant is acting purposely, it differs because they’re not acting toward a particular outcome.

However, the defendant knows that they’re doing is wrong and will cause consequences.

For example, George found a checkbook on the ground. Instead of turning it into the police station, he used it to buy groceries and other things. He tried to use it in a bank to cash checks but was caught when he couldn’t produce identification.

Related Offenses

Charges of Criminal Use of an Access Device in New York may be brought in addition to, or in place of, charges for certain other related offenses, including:

Related Offense #1: Forgery

When an offender is committing forgery, they’re producing a copy of a signature, banknote, document, or another access device.

For example, David spent hours practicing how to write his father’s signature so he could sign his checks and credit card slips. Once he perfected this forgery, he took it a step further by creating a false identification with the signature.

Related Offense #2: Identity theft

When those who stand accused purposely use another individual’s identity, usually as a means of obtaining a credit card or for another financial gain, and it’s typically to that person’s loss or disadvantage.

For example, Jeffery worked at a bank and, when his clients with no beneficiaries passed away, he didn’t close their accounts. Instead, he assumed their identities and transferred funds into a “dummy” account where he was the beneficiary. Internal auditors discovered what was occurring when accounts began being flagged without his knowledge.

Related Offense #3: Receipt of stolen property

For example, Bruce lived on a cul de sac in a quiet neighborhood and, attached to his home was a large garage. His friend, Evan, brought boxes of merchandise for him to “hold” every Friday. He gave him a couple of hundred dollars to store these items every week.

Bruce knew the items were stolen, but he didn’t care. He had the garage space and needed the extra income to pay his bills. What he didn’t realize was he would be charged with receipt of stolen property when the police became involved.

Related Offense #4: Criminal Conspiracy

When a criminal conspiracy occurs, it means that two or more individuals are conspiring to commit a crime in the future.

For example, Brian and Cassandra decided they would steal as many purses and backpacks while traveling on the busses that week. That way, they could see how much cash they could get, and then sell the credit cards and identification. They made the mistake of trying to sell a stack of identification to an undercover police officer.

Essential and Impactful Cases:

The following are examples of essential and impactful cases involving Criminal Use of an Access Control Device in New York. The main reason why they’re each considered essential and impactful cases is that they provide examples of each of the elements outlined, as well as everyday individuals.

How These Cases Further Define the Written Statute:

These cases further define Article 190 and 170 because they each fall within the past year and are examples of how attorneys must work with to defend or prosecute the accused.

Not only do these cases exemplify each of the elements described—acting with specific intent, purposely, with more than one intent, and knowing—but they also define first and second-degree offenses in state and federal courts.

How These Cases Have an Impact on the Defense and Clients:

When attorneys are working with the accused, they must prove they’re innocent beyond a reasonable doubt. They do this by testing the elements of criminal intent and, in doing so, these cases are impactful on all who are involved.

The main reason is that when those who are involved with Criminal Use of an Access Device in New York, they’re experiencing gain as a result of someone else’s detriment. The defense counsel is working in a manner by which all of their clients are innocent unless proven guilty.

However, like in the case of the man pleading guilty of the spree for local check fraud cases, attorneys will work in a way that is in everyone’s best interests legally.

Entities involved in detection, investigation, and prosecution:

Office of the New York State Comptroller – Investigations
New York State Police Department – Special Investigations Unit
New York State Attorney General
New York’s Department of Investigation

What is the prosecution like?

The prosecution must use elements of criminal intent to prove without a reasonable doubt that the accused is innocent of their crimes. They’ll test each of the elements the defendant stands accused of as they pertain to their case.

Do government agencies collaborate with local agencies?

Yes.

What specific type of wrongdoing are they interested in preventing?

The government and local agencies are collaborating to prevent wrongdoing including, but not limited to, using an access device without permission from its owner, having the intent to use the access device for telecommunications purposes, and these fraudulent services must have exceeded $1,000.

Also, they’re trying to attempt the accused from knowingly forging instruments with the intent to injure, defraud, or deceive another individual.

Penalties for Violating Article 190 and 170:

Criminal Use of an Access Device in New York is a misdemeanor under Article 190.75 and a felony under Article 190.76 and Article 170. The penalties for Criminal Use of an Access Device in New York in most cases include:

A fine of up to $1,000; and/or
Imprisonment for up to one year.

Sentencing Enhancements

The penalties for Criminal Use of an Access Device in New York are steeper if the accused is not facing misdemeanor charges, and instead, it’s a Class E felony because:

Specifically, you face heightened penalties if you:

Being accused of knowingly using an access device without the owner’s consent.
Then, unlawfully obtaining telecommunication services.
These services you stand accused of obtaining exceed the value of $1,000.

If your case falls into one of these categories—and you knew or reasonably should have known that they did—then the maximum sentence will increase to four years in prison. The maximum fine for Criminal Use of an Access Device in New York also increases to $5,000.

Additional Consequences

When an individual faces misdemeanor charges and must pay a fine, it’s difficult to recoup from that financial loss. Financial loss is also experienced when individuals must miss work fighting their case.

Individuals who face felony charges experience much harsher consequences that follow them throughout their life. In addition to the financial loss from missed time from work, as well as paying fines, these individuals may also have to serve time in prison.

While those who face misdemeanor charges may not have to disclose them to potential employers, those with a felony charge do. They also have to disclose this information when attempting to get housing. These instances make it challenging to secure employment and housing.

Legal Defenses to Criminal Use of an Access Device in New York

Nobody wants to go to jail or pay a fine—and nobody wants a conviction for Criminal Use of an Access Device in New York on their record.

People may start to associate you with this crime, even though they do not understand the specifics of your case. There are several powerful legal defenses you can use to fight these charges.

They include:

Defense #1: Specific Intent

One of the defense for Criminal Use of an Access Device in New York is that the defendant must not be acting with specific intent.
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- Example: Matthew lived in the apartment above his grandmother’s garage. Matthew thought he could use the credit card his grandmother left on the counter to order groceries for the two of them every week. He didn’t know she was going to report them as fraud charges against him.

Defense #2: Purpose

The second defense for Criminal Use of an Access Device in New York is that the defendant must not be acting purposely.
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- Example: Rebecca found gift cards on her desk at work. It was close to her last day of work, so she thought they were going away gifts from her co-workers. She took them home and spent them. Several weeks later, she was asked to come to the police station for stealing the gift cards before leaving her previous place of work.

Defense #3: More Than One Intent

The third defense for Criminal Use of an Access Device in New York is that the defendant must not have had more than one intent.
SEUN OGUNKOYA vs. COUNTY OF MONROE; SANDRA DOORLEY, individually and as District Attorney of Monroe County; MARK MONAGHAN, individually and as a Bureau Chief of Monroe County; JAMES EGAN individually and as an Assistant District Attorney of Monroe County; ALBERT DRAKE III, individually and as an investigator with the New York State Police; DARIUSZ ZYSK, individually and as a trooper with the New York State Police; MARK E. EIFERT, individually and as an investigator with the New York State Police; PETER SCHRAGE, individually and as a trooper with the New York State Police; and JOHN DOE AND RICHARD ROE (names and number of whom are unknown at present), and other unidentified members of the New York State Police
- Example: Bryan was going to break into the neighbor’s house, which he knew was wrong. It wasn’t his intent to steal their identity or use it for fraudulent activity. He intended to steal valuables to resell, find cash, or both.

Defense #4: Knowing

The fourth defense for Criminal Use of an Access Device in New York is that the defendant must not know.
Ex-Cantor Fitzgerald Trader Not Guilty in Bond Fraud Case
- Example: Karen was with Anne, and they were supposed to go to the movies that night. Karen stole a wallet while they were at dinner that night before the movies and put it into Anne’s purse. After they got to the movies, Karen told Anne that she wanted her to hold onto the wallet until later that night. Anne didn’t know why.

Karen showed up at her dorm room to empty the wallet and throw it away. Then, she used Anne’s computer to sell the identification without telling her what she was doing. Both of the girls were caught, but Anne didn’t know what was happening.

Call us for help.

For questions about Criminal Use of an Access Device in New York, or to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us. We have local criminal law offices in your area.