Identity theft is a highly discussed topic, with the focus often being internet criminals that steal personal information through hacking, phishing, and other scams.  However, New York law has a straightforward identity theft statute that covers any wrongful appropriation of another’s identity.

While some people may have greater access to personally identifiable information, this crime is not limited to any specific professionals or types of people.  Anyone can be prosecuted for identity theft if the improperly use someone else’s information.

Examples

Here are some examples of situations in which a person might be at risk of prosecution:

• George is trying to purchase event tickets, but cannot because he is banned from the venue.  He uses his roommate’s license and credit card to buy the tickets.  His roommate is not banned, and he thinks his roommate will not notice the additional charges.  George does not get his roommate’s permission and does not pay him back.  George could be charged with identity theft.
• Marjorie is trying to buy a house but does not have sufficient credit to qualify.  She knows her brother’s Social Security Number and adds him to the mortgage paperwork.  He has much better credit, and she is able to take out a larger mortgage with the use of his financial qualifications.  Marjorie could be charged with identity theft.

The Legal Definition of Identity Theft in New York 

Under New York Penal Law, there are three degrees of identity theft[1] as well as an aggravated identity theft crime.[2]

In order to be prosecuted for an identity theft crime, the following elements must be proven:

1. Intent
2. Assumption of another person’s identity
3. The harm caused as a result

Each specific element is discussed in further detail below, with variations for the degrees of identity theft.

Intent

The intent is the element focused on the mindset of the individual at the time of an alleged crime.  For all three degrees of identity theft and for aggravated identity theft, the actions must be performed both knowingly and with the intent to defraud.

Knowingly means that the person was aware of the actions being taken, rather than doing something by mistake or accident.  An intent to defraud can be satisfied without having a specific target of the fraud in mind.  According to People v. Dallas, a person has the intent to defraud if the actions they purposefully take show an intent to defraud any person.

Assuming of Another Person’s Identity

The second element of the crime requires a person to assume the identity of another person.  The identity is assumed by committing one of the following two actions:

1. Presenting oneself as the person whose identity is being assumed
2. Using the information that is personally identifiable to the individual whose identity is being assumed

For identity theft in the first, second, or third degree, this element is the same.  The crime rises to aggravated identity theft if:

1. The person whose identity is being assumed is a member of the armed forces and is currently deployed outside of the U.S.
2. The person who assumed the identity knows both of these things

Harm Caused

The final element of the crime of identity theft is some sort of harm caused to the person whose identity was assumed or to society generally.  The final element is satisfied if, as a result of assuming someone’s identity, a person does one of the following things:

1. Obtains something
2. Uses credit in the name of the assumed identity
3. Causes financial loss to any person or people
4. Other criminal action

If the person has obtained something by using another’s identity, it can be goods, services, property, or money.  The severity of the crime or the amount or value of whatever was obtained, the credit used, or the financial loss determines the degree of the offense.  For each degree, the requirements are:

1. Third Degree: Any value or committing a crime or at least a class A misdemeanor.
2. Second Degree: A value of over $500 or a felony (committing, attempting, or acting as an accessory)
3. First Degree: A value of over $2000, a felony (committing, attempting, or acting as an accessory), or second-degree offense with prior specified identity fraud or theft conviction.
4. Aggravated Identity Theft: A value of over $500, and there is no criminal action option for satisfying this element.

Related Offenses

Identity theft is rarely the only crime committed as part of the activities leading to a charge under this statute.  Some of the related offenses are contained in New York Penal Law as fraud or theft crimes.

Two of the related offenses, found in the same Article of New York Penal Law that covers other fraud crimes, are unlawful possession of personal identification information and criminal impersonation.

Unlawful Possession of Personal Identification Information

In order to steal someone’s identity, you may need their personal information.  The crime of unlawful possession of personal identification information makes it illegal to knowingly have in your possession another person’s identification or financial information.

This includes account numbers, mother’s maiden name, passwords, and other related numbers or information.  In addition to knowing the information, a person needs to have the intent to use it in support of another crime.  Depending on the use and quantity of information, the charges may be more severe.

Criminal Impersonation

This statute makes it a crime to:

1. Impersonate another person
2. Pretend to represent a person or organization
3. Pretend to be a public official
4. Wear a uniform without authority
5. Impersonate someone online or through some communication

Pretending to be another person can be considered identity theft, or it may be considered criminal impersonation.  The crimes are similar in that a person is acting in an assumed persona for some malicious purpose.  Identity theft requires the taking on of a specific identity, while criminal impersonation does not have that requirement.

Important Cases on Identity Theft in New York

Prosecuting and defending charges of identity theft is often influenced by prior cases addressing the crime and its elements.  There are a number of cases that can be impactful if you have been charged with identity theft.

The following cases offer additional information and interpretation of the relevant provisions of New York Penal Law, possible defenses, and the relationship with other offenses.

• The case of People v. Debranche considered two defendants that had been charged with identity theft and petit larceny.  The defendants had opened an account for a cell phone in the name of an Avi Natanov.

The charges properly identified that the defendants were not Avi Natanov, but the charges had not established that there was an actual person named Avi Natanov whose identity was being stolen.  To be prosecuted for identity theft, there needs to be a real person whose identity has been stolen.  This was confirmed by People v. Alba, in which the defendant could not be convicted after she claimed to be a person who did not exist.

• Another case involved a defendant that had the credit card number of another person.  The defendant had created a fraudulent credit card using the number and had put the name “Craig E. Jonathan” on it.  The defendant also had a fraudulent license with that name and his own photo.

In People v. Roberts, the court held that this was not sufficient for identity theft.  While the defendant possessed and used the personal information of another, he did not assume that person’s identity.  Rather, he used that information on a fake identity.  While this may be sufficient for other fraud or theft charges, it did not satisfy the elements of this statute.

• People v. Barden also explored the question of whether or not the assumption of identity needed to be proven separately.  There are some fraud crimes that have a rebuttable presumption that committing fraudulent acts alone satisfies multiple elements.  However, the court held that using personal information does not create a presumption that someone has assumed another’s identity.  It must be proven by the prosecution to convict.
• The same case also identified another key area.  The defendant used a credit card that belonged to someone else at a hotel that knew he was not the person named on the credit card.  Instead of assuming another’s identity, the defendant misrepresented his authority to use the credit card.  While that was criminal under another statute, it was not identity theft.

• Establishing knowledge and intent was considered in the case of People v. Essalek.  When a person possesses personal information that belongs to another person, it is acceptable for the court or a jury to infer that he or she knew and intended to use it fraudulently.  The court is reaffirming that intent can be proven by circumstantial evidence.

Detection, Investigation, and Prosecution of Identity Theft

Identity theft may be targeted by local, state, and federal law enforcement.  For some cases, it may be initially reported to or detected by local law enforcement and prosecuted by the appropriate district attorney.  At the state level, the investigation may be conducted by the New York State Police in conjunction with the Attorney General’s Investigations Division.  The prosecution is pursued by the Attorney General’s Criminal Justice Division.

For larger identity theft or fraud schemes, other law enforcement or task forces may be involved.  The Attorney General’s Crime Proceeds Strike Force runs long-term investigations to handle cases such as these.  Also, where the crime occurs in a specific market, there may be a specialized investigations team.

• For example, if there is identity theft in the auto insurance arena, there is an Auto Insurance Fraud Unit within the Investigations Division.

At the federal level, the Federal Trade Commission takes reports of identity theft cases and offers consumer resources to manage possible damage.  The Federal Bureau of Investigation is the key law enforcement agency investigating possible identity theft.  The FBI may prioritize certain areas, such as identity theft for the purpose of stealing tax refunds.

Statutory Penalties for Identity Theft in New York 

Depending on the level of the criminal charges, the statutory penalties may include fines and imprisonment.  According to the New York Penal Law, the possible penalties include the following for each crime:

• Identity theft in the third degree is a class A misdemeanor. This carries a prison sentence of up to one year.
• Identity theft in the second degree is a class E felony. This carries a prison sentence of up to four years.
• Identity theft in the first degree and aggravated identity theft are both class D felonies, which carries a prison sentence of up to seven 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. In particular, for identity theft in the first degree, the fine could be significantly larger.  The minimum value threshold for first-degree charges is $2000.  However, if there was a higher value to the benefit as a result of identity theft, then the statutory penalty could be much higher.

In addition, identity theft has other related offenses.  Each of these charges can come with independent fines and sentences of imprisonment.  There will be a cumulative effect from all of the individual charges and convictions. 

Additional Consequences of Conviction

• A conviction for identity theft can be a permanent blemish on your reputation.  Identity thieves are often thought of as the evil people who lurk on the internet or the scammers that call your phone incessantly.  While a person’s actions may have a reasonable explanation, that explanation will not accompany a criminal record.
• The damage to your reputation will affect you personally and professionally may feel insurmountable.  For example, if you try to get a job, your prospective employer will be able to see that you have this conviction.  It will almost certainly hinder your ability to get that (or another) job.
• It is not only in the professional space that this record may haunt you.  With so much information available online, potential connections may be deterred from interacting with you because they know of the history.  For example, they may be concerned that you are only in contact to steal their identities.
• You will also have to handle financial duress.  Starting with when you are charged, there will be a time-consuming process.  That time will take you away from work and cost you money, which will add to the expenses.  Moreover, any imprisonment will magnify the financial loss.  Combined with the fines and the possible career difficulties after imprisonment, this will be a substantial consequence.
• Finally, the stress will not just be felt by you. Your loved ones will also be worrying about the outcomes and will be separated from you if you are imprisoned.  They will also bear the burden of financial stress.

Legal Defenses to Identity Theft in New York 

There are many possible strategies for fighting charges of identity theft.  New York Penal Law establishes the following affirmative defenses[13] for identity theft:

1. A person under the age of 21 uses someone else’s identity only for the purpose of buying alcohol.
2. A person under the age of 18 uses someone else’s identity only for the purpose of buying cigarettes or other tobacco products.
3. Any other use of someone else’s identity is for the purpose of getting in somewhere that is restricted by age.

In addition to the statutory defenses, the cases discussed help identify some arguments that could defend against charges of identity theft.

First Defense

If the prosecution fails to show that the defendant using the personal information, did not also assume the identity of that person, this would be insufficient to prosecute.

A defense strategy would be to provide evidence that indicates that the defendant never assumed the identity.  Any use of personal information was done without claiming to be the person whose identity it was.  Where possible, evidence could show that anyone to whom the personal information was presented knew that the defendant was not the named person.

Second Defense

Cases focus on the need for the identity stolen to be from an actual person.  If the prosecution cannot identify a victim, the defense should emphasize that the elements have not been met.

In addition, another defense strategy can present evidence to show that the identity assumed was one made up by the defendant.  In addition, anyone to whom the defendant presented as this person can help support this defense if they knew that the persona was fictitious.

Third Defense

The intent element is generally proven by circumstantial evidence.  This means that the prosecution will attempt to provide an interpretation that leads to the conclusion that the defendant knew what he or she was doing and intended to defraud people.

In defending these charges, an alternative interpretation could be provided that shows how the defendant could have taken the same actions either by accident or without a malicious purpose.

Fourth Defense

If the defendant is able to disprove any one element, then there can be no conviction.  If there are facts that help show there was no harm, this would be an important defense.

For example, if the defendant only possessed personal information but never actually used it, this would mean that the elements were not satisfied.  In addition, if the defendant assumed the identity without success, it would also show that there was no actual harm or identity theft.

Along the same lines, a defense strategy can be to lower the level of harm such that the degree of the offense is lowered.  If that is done successfully, it mitigates the penalties faced by making the maximum sentence and fine lower.

Let Us Help You

You and your loved ones can have help navigating this process.  Our local criminal law offices are ready to take your call today.  Once you have a legal team on your side, you will always have help fighting these charges.

A defense team offers support in a number of ways.  If you are being investigated, a lawyer can help you communicate with law enforcement in a way that best serves your needs.  If you have already been charged, your attorney will help you determine how to mitigate the repercussions.

• For example, there might be an option for a plea deal.  This would be mean the penalties were certain, which can help with stress and planning.  However, you do not want to take the deal just because law enforcement is pushing for it.  You need the best deal for you.

A skilled legal team will always advocate for you.  From communication with police to presenting a strong defense in court, a lawyer can help you fight.  Call today for representation near you.