Unlawful Possession of Personal Identification Information in New York

What puts a person or entity at risk of prosecution?

According to the government website USA.gov, “[i]dentity theft happens when someone steals … personal information to commit fraud. The identity thief may use [the] information to fraudulently apply for credit, file taxes, or get medical services.”

A 2013 New York State White Collar Crime Task Force report notes that the growing problem of identity theft led the Legislature to establish two new crime categories in 2002:

Identity Theft; and
Unlawful Possession of Personal Identification Information.

What is Unlawful Possession of Personal Identification Information?

A person is guilty in New York of Unlawful Possession of Personal Identification Information when he or she has someone else’s private personal information and attempts to use it fraudulently to obtain merchandise or services.

Think of data such as bank account credentials, credit card numbers, pin numbers, or other metrics that enable the person to extract value from someone else in a criminal manner.

What are the possible charges?

Unlawful Possession of Personal Identification Information can range from charges in the third degree, which would be considered a class A misdemeanor, to charges in the first degree,aclass D felony. Crimes related to Unlawful Possession of Personal Identification Information are defined under New York Penal Codes § 190.81 – § 190.83.

Charges in either the first or second degreegenerally involve steeper penalties than third-degree charges. Second-degree charges usually stem from having at least 250 items of personal information in your possession. Unlawful Possession of Personal Identification Information in the first degree incorporates the second-degree charge, but on top of that you:

also supervised more than three accomplices in a potential crime or
have been convicted of other crimes within the last five years, including identity theft or grand larceny, among others

Examples of Unlawful Possession of Personal Identification Information

In the following section, we outline actions that might be interpreted as Unlawful Possession of Personal Identification Information. These examples indicate situations where charges might arise.

Example 1: Standing behind someone in line at the bank, you are able to see her personal information on an application that she is completing for a new credit card. You apply for a new credit card using her data. You likely are at risk of being charged with Unlawful Possession of Personal Identification Information.

Example 2: You forge someone else’s signature on a check that is imprinted with that person’s personal identification information and present the check at a bank, representing yourself as that other person. In addition to potential charges of forgery and possibly ID theft, you could also risk a charge of Unlawful Possession of Personal Identification Information.

The Legal Definition of Unlawful Possession of Personal Identification Information

As noted, N.Y. Penal Codes § 190.81 – § 190.83 outlines the legal definitions of various forms of Unlawful Possession of Personal Identification information.

An individual is legally guilty of the crime in the third degree when that individual knowingly possesses the codes or credentials for someone else’s financial services account, credit card, computer or something else from which value can be extracted. Such credentials can include, among other things, such as:

ATM and other login codes
Passwords
electronic signatures
biometric finger or voice prints
retinal or iris images

The individual also must have ‘intent’ to use this material in the commission of a crime.

Depending on how much personal ID is in your possession, the magnitude of the contemplated crime, or if you have already been convicted of another crime, charges could get higher. A charge of Unlawful Possession of Personal Identification Information in the third degree is bad.

What happens if the charge rises to another degree?

But if the charge rises to the level of the second or third degree, potential punishments couldget much worse.

In fact, although we outlined some of the differences that could lead to more severe charges above, it is worth elaborating here. You face a heightened charge – and steeper punishment that could include a longer prison sentence – If you:

unlawfully possess at least 250 pieces of personal ID, such as those described earlier (credit card data, banking metrics, passwords, etc…). This could lead to a charge of Unlawful Possession of Personal Identification Information in the second degree.

supervise more than three accomplices in the commission of the crime, or

have been convicted of any of the following crimes within the last five years:

Identity theft
Unlawful possession of personal identification information
Unlawful possession of a skimmer device, or
Grand larceny
have been convicted of identity theft in the third degree within the last five years

The latter could lead to a charge of Unlawful Possession of Personal Identification Information in the first degree. The difference between the third degree and first degree charges could mean six additional years in prison!

Elements of Unlawful Possession of Personal Identification Information

Below we outline the “elements” of Unlawful Possession of Personal Identification Information or what the prosecutor must prove to convict you of the crime successfully. Generally speaking, the following must be true for a defendant to be convicted in a trial for Unlawful Possession of Personal Identification Information in the third degree under N.Y. Penal Law § 190.81:

You must have knowingly had someone else’s credentials, codes or biometric authentication data
You intended to use the information to commit a crime

In other words, you misrepresented yourself as another person using the other person’s personal data in order to benefit in some way. By benefit, the law generally means obtaining goods or services fraudulently. Let’s delve a little deeper into these various elements.

Element #1: Knowingly possessing private data

The word knowingly is critical in this element. You must have ‘knowingly’ had possession of a person’s data. We’ll look at an example to better understand this.

For example, you gain possession of your neighbor’s credit card credentials and try to use that information to obtain services or goods using her name. You could be at risk of beingcharged with Unlawful Possession of Personal Identification Information.

Element #2: Intended to commit a crime

The prosecutor must also prove that you intended to use another person’s data in order to commit a crime.

Let’s say that while shopping, you see an acquaintance who is clearly in a rush. As she exits the store, she hands you her debit card and asks you to pay for her purchase. She whispers her pin number to you. Before you return her card, you use it to make a single purchase, intending to repay her when you return the card. In this case, you could argue that you did not intend to defraud the other person. Your intention was to repay her.

On the other hand, staying with the debit card example, let’s say you left the store with the debit card and kept it for a prolonged period, using it to charge multiple items. You could be at risk of a charge of Unlawful Possession of Personal Identification Information.

Related Offenses

Charges of Unlawful Possession of Personal Identification Information could be pursued in addition to or instead of certain other related offenses. Let’s take a look.

Related Offense #1: Unlawful possession of a skimmer device (second degree)

Unlawful possession of a skimmer device in the second degree, defined under N.Y. Penal Law S 190.85, says that you are guilty of this crime if you have a skimmer device and intend to use it to commit a crime of identity theft.

According to Black’s Law Dictionary, skimming is when “the numbers from a credit card are … recorded and then transferred to another card and used without the card holder’s knowledge.”

Related Offense #2: Unlawful possession of a skimmer device (first degree)

This crime laid out under N.Y. Penal Law S 190.86, incorporates the above mentioned second-degree charge but rises to the steeper level if you have been convicted of identity theft, unlawful possession of personal identification information, unlawful possession of a skimmer device or grand larceny charge within the past five years.

Unlawful possession of a skimmer device in the first degree is a class E felony.

Related Offense #3: Identity theft

Under N.Y. Penal Law § 190.78 – 190.80-a, someone is guilty of identity theft to a varying degree when that individual knowingly and intentionally presents himself or herself as someone else in an attempt to defraud the other person and benefit.

For example, in People v. Lee, the defendant allegedly obtained personal customer information at her job at a bank and subsequently used that information to make bank withdrawals. Lee was convicted of 13 counts of identity theft in the first degree, as well as grand larceny in the second degree and scheme to defraud in the first degree.

Related Offense #4: Forgery or criminal possession of a forged instrument

instrument

Essentially, an individual is legally guilty of forgery in the third degree, according to N.Y. Penal Law § 170.05, when he or she “falsely makes, completes or alters a written instrument” “with intent” to deceive.

Many times, the individual who commits forgery uses another person’s private data, which could lead to charges of Unlawful Possession of Personal Identification Information, as well as of forgery.

What are some of the essential and impactful cases?

To better understand when and how charges of Unlawful Possession of Personal Identification Information are imposed in New York, we present a few actual cases highlighted below.

In the case of People v Essalek

In searching the defendant for marijuana, the arresting officer alleged that he recovered seven pieces of paper from the defendant’s wallet, including three credit card numbers with expiration dates and security codes and a social security number.

Among other charges, the defendant was charged with Unlawful Possession of Personal Identification Information in the third degree.

In People v. M

The defendant was charged with using her boyfriend’s credentials to purchase a Dell computer on credit. The boyfriend denied that she had obtained his authorization in advance. She was charged with multiple counts of Attempted Identity Theft, Attempted Petit Larceny, and Attempted Possession of Personal Identification Information in the third degree.

In People v Lloyd

The police received information from an informant who claimed to be the defendant’s accomplice. The informant told them that she and the defendant devised a plan to use stolen identification cards in order to cash forged checks.

With a search warrant in hand, the police recovered various items used for printing checks, as well as a card skimmer device and many personal identification items. The defendant was charged with 12 counts of Unlawful Possession of Personal Identification Information in the third degree and one count of Criminal Possession of a Skimmer Device, among other charges.

What agencies detect, investigate, and prosecute these crimes?

According to Experian, a global consumer and business credit reporting services company, identity theft is on the rise. Experian notes the following:

14.2 million credit card numbers were exposed in 2017, which represented a sizable 88% increase compared to 2016.
In addition, nearly 158 million Social Security numbers were exposed that same year, a greater than an eight-fold increase from the prior year.
Moreover, consumers reported $905 million in total fraud losses in 2017, 21.6% more than they reported in 2016.

These metrics likely imply that government agencies and the judicial system will increasingly seek to investigate and prosecute Unlawful Possession of Personal Identification Information cases.

Many law enforcement agencies can get involved, such as:

The local police or county sheriff’s office.

Often, they can help collect evidence, including finding possible witnesses.
The police generally can use search warrants and subpoenas, among other tools, to advance an investigation.
Moreover, if the crime is sufficient to warrant it, other agencies might also get involved.
For instance, victims are encouraged to report identity theft to the Federal Trade Commission (FTC) and to other federal agencies, as well as to Credit Reporting Agencies and State Consumer Protection Offices if it is applicable.

Private companies also get involved at times.

For instance, in People v. M., we learned that the fraud investigation team of Dell got involved in uncovering information that led to charges being filed.
Ultimately, if charges are filed, they will generally be pursued by the Attorney General’s office or District Attorney.

What are the statutory penalties if you are convicted of this crime?

Penalties for Violating N.Y. Penal Law § 190.81 – 190.83:

Potential penalties are outlined below:

Third-degree Unlawful Possession of Personal Identification Information is generally charged as a Class A misdemeanor. It is punishable by:
up to 1 year in prison
a fine of up to $1,000 or

As noted, when charges rise to the level of first or second-degree unlawful possession of personal identification, penalties are usually steeper.

In fact, in the first degree, the charge can result in up to seven years in prison. There are several factors that determine penalties, including prior convictions or if you had a greater number of personal identification metrics in your possession. If you are a persistent felony offender, that might also be considered. The penalties outlined below provide a rough guideline.

Second-degree Unlawful Possession of Personal Identification Information is generally charged as class E felony. It is punishable by:
Up to 4 years in prison, or
Probation
A fine of up to $5,000 or
Up to twice the profit from the crime.

First-degree identity theft is generally charged as a class D felony, and penalties could include:
Up to 7 years in prison
A fine of up to $5,000 or
Up to twice the profit from the crime
Unlawful possession of a skimmer device in the second degree is a class A misdemeanor. Potential penalties can include:
Up to one year in prison, or
Probation
A fine of up to $5,000
Unlawful Possession of a Skimmer Device in the first degree is a class E felony. Punishment can include:
Up to four years in prison, or
Probation

What are some of the additional consequences of being convicted?

You do not want to have an Unlawful Possession of Personal Identification information conviction on your record. There are serious consequences that could hurt you for the foreseeable future – if not forever!

In addition to potential prison terms and fines as discussed above, a conviction often makes it difficult to find employment in the future and can put your state or federal licenses at risk, as well. Moreover, if you are convicted more than once, you are likely to be viewed by the judicial system as a repeat offender, which means charges can get even steeper.

In addition, there can also be a personal ramifications. In other words, people will generally be able to discover that you were convicted of the crime. Thus, the conviction might damage your reputation and your relationships with friends and colleagues.

Legal Defenses to Unlawful Possession of Personal Identification Information

Therefore, you should speak with an attorney to help you determine your best defense strategy. The legal defenses for the charges of Unlawful Possession of Personal Identification Information include the following age-related arguments:

You were under 21 when you obtained and used the identification information, and you used it strictly to buy beer or other alcohol;

You were under 18, and you used the identification information solely to buy cigarettes or other tobacco products; or

You were underage, and you used someone else’s personal information to enter a club or another venue that imposes restrictions based on age.

Another possible defense strategy is that you had no unlawful purpose in possessing another person’s identification information. Remember, the state must show intent to commit a crime.

Call us for help

The situations and cases in the discussion above show the complexity of the legal rules about these crimes and how steep punishments can be if you are found guilty. You do not want to face these charges on your own without professional help. Confronting the police or the prosecuting attorney on your own can be very intimidating.

This means that your best strategy is to seek legal assistance. To discuss your case in confidence with one of our experienced criminal defense attorneys or if you have any questions at all about N.Y. Penal Laws § 190.81 – § 190.83 and various Unlawful Possession of Personal Identification charges, do not hesitate to contact us.

We have defended clients against these charges many times before. We want to help you and have local criminal law offices in your area. Please know that everything we discuss your case will remain in the strictest confidence.

Sources / citations:

https://www.nysenate.gov/legislation/laws/PEN/190.82

https://www.new-york-lawyers.org/unlawful-possession-of-personal-identification-information.html

https://law.justia.com/cases/new-york/court-of-appeals/2018/42.html

https://law.justia.com/cases/new-york/appellate-division-second-department/2018/2016-04954.html

https://www.experian.com/blogs/ask-experian/identity-theft-statistics/

https://www.experian.com/blogs/ask-experian/identity-theft-can-land-a-fraudster-in-jail/

https://law.justia.com/cases/new-york/appellate-division-first-department/2016/3172-13-201.html

http://www.courts.state.ny.us/REPORTER/3dseries/2012/2012_51098.htm

https://www.new-york-lawyers.org/aggravated-identity-theft-new-york-penal-law-190-80-a.html

https://www.usa.gov/identity-theft

http://www.ncsl.org/research/financial-services-and-commerce/credit-card-skimming-devices-laws-and-legislation.aspx