Identity Theft and Related Offenses
The attorneys at Galluzzo & Arnone LLP are uniquely qualified to defend
individuals accused of identity-theft related crimes, as all three of
their attorneys are former members of the Identity Theft Unit at the Manhattan
District Attorney's Office. As such, they are intimately familiar
with the various law enforcement techniques used to investigate and prosecute
these matters, as well as some of the technically complex defenses that
can be successfully employed to defend against these charges.
Matthew Galluzzo in particular recently won a landmark appellate decision
in the Court of Appeals (New York's highest state court) in a case
involving complex allegations pertaining to an alleged international identity
theft ring and "cybercrime enterprise".
The case - People v. Western Express - involved complex questions of law
and legal culpability, and is now regularly cited by other judges and attorneys.
Article 190 of the Penal Law contains provisions dealing with identity
theft, false personation, usury, and “bad check” offenses.
Key Penal Law Provisions:
- Identity Theft in the third degree – PL 190.78, a class A misdemeanor
- Identity Theft in the second degree – PL 190.79, a class E felony
- Identity Theft in the first degree – PL 190.80, a class D felony
- Unlawful possession of personal identification information in the third
degree – PL 190.81, a class A misdemeanor
- Unlawful possession of personal identification information in the second
degree – PL 190.82, a class E felony
- Unlawful possession of personal identification information in the first
degree – PL 190.93, a class D felony
Identity Theft and related crimes are contained in Article 190 of the Penal
Law. These crimes can be and are often times charged with forgery and
related offenses as well as theft and related offenses. There is no typical
identity theft charge, and the statute has been used by prosecutors to
cover a wide array of conduct. Some activity that may not be thought of
as “identity theft” in common parlance may be covered by the
statute. A recent definition of identity theft found on Wikipedia defines
identity theft as “a term used to refer to fraud that involves someone
pretending to be someone else in order to steal money or get other benefits.”
Thus, a layperson’s view of the act of identity theft may suggest
the actual assumption of or use of a person’s identity to commit
theft of money. However, the definition of identity theft found in the
New York State Penal Law is arguably more expansive.
- There are three levels of identity theft. The first is the basic charge,
identity theft in the third degree:
- A person is guilty of identity theft in the third degree when he or she
knowingly and with intent to defraud assumes the identity of another person
by presenting himself or herself as that other person, or by acting as
that other person or by using personal identifying information of that
other person, and thereby [1.] obtains goods, money, property, or services
or uses credit in the name of such other person or causes financial loss
to such person or to another person or persons; or [2.] commits a class
A misdemeanor or higher level crime.
PL 190.78. The second-degree charge is similar to the misdemeanor, but
has a monetary threshold of $500, and can be used in cases where the identity
theft is used to commit another felony-level offense or in cases of third-degree
identity theft where the defendant has been convicted of third-degree
identity theft or other enumerated offense within the past five years.
PL 190.79. First-degree identity theft has a monetary threshold of $2000
and may apply to cases where the identity theft is used to commit a class
D felony or higher level crime, or in cases where the defendant commits
a second-degree identity theft having been convicted within the past five
years of third-degree identity theft or other enumerated offense. PL 190.80.
There are three parallel provisions detailing the crimes of unlawful possession
of personal identification information, that more or less correspond to
the three identity theft provisions just described. PL 190.81-83.
- The key definition necessary to understand the identity theft provisions
is that of“personal identifying information,” which includes
- name, address, telephone number, date of birth, driver’s license
number, social security number, place of employment, mother’s maiden
name, financial services account number or code, savings account number
or code, checking account number or code, brokerage account number or
code, credit card number or code, debit card number or code, automated
teller machine number or code, taxpayer identification number, computer
system password, signature or copy of a signature, electronic signature,
unique biometric data that is a fingerprint, voice print, retinal image
or iris image of another person, telephone calling card number, mobile
identification number or code, electronic serial number or personal identification
number, or any other name, number, code, or information that may be used
alone or in conjunction with other such information to assume the identity
of another person.
PL 190.77(1). Thus, the material that may be stolen can include things
that may not readily come to mind when considering a charge of “identity”
theft. Identity theft is a growing area of concern amongst law enforcement
in New York city. In order to combat the uptick in these types of crimes,
which are often committed with the use of sophisticated technology, the
Manhattan District Attorney’s office has created an Identity Theft
Unit that is charged with coordinating the prosecution of identity theft
and related crimes.
Other Fraud-Based Offenses in Article 190
- Issuing a bad check – PL 190.05, a class B misdemeanor
- False advertising – PL 190.20, a class A misdemeanor
- False personation – PL 190.23, a class B misdemeanor
- Criminal impersonation in the second degree – PL 190.25, a class
- Criminal impersonation in the first degree – PL 190.26, a class E felony
- Criminal usury in the second degree – PL 190.40, a class E felony
- Criminal usury in the first degree – PL 190.42, a class C felony
- Scheme to defraud in the second degree – PL 190.60, a class A misdemeanor
- Scheme to defraud in the first degree – PL 190.65, a class E felony
In addition to the increasingly popular identity theft offenses, Article
190 contains several other criminal provisions aimed at other kinds of
fraud. Issuing a bad check is a mostly self-explanatory and minor (class
B misdemeanor) offense that can be charged in cases of individuals who
willfully pass a check knowing that there are insufficient funds to cover
it. See PL 190.05. It is a complete defense to this offense, however,
if the payee is made whole within 10 days of the dishonor. PL 190.15.
A misdemeanor charge of false advertising may apply in cases where an individual
or business association makes a false or misleading statement in violation
of the “Truth in Lending Act,” with certain specified exceptions.
False personation charges may be filed where a person gives false identifying
information to a police or peace officer with the intent to prevent the
officer from “ascertaining such information.” PL 190.23.
Criminal impersonation, as opposed to false personation, involves the act
of impersonating another person, PL 190.25(1), or pretending to be a representative
of another person or organization, PL 190.25(2), with a view toward obtaining
some kind of benefit, or injuring or defrauding another person. This charge
would also apply to those who impersonate public servants. PL 190.25(3).
If, on the other hand, a person impersonates a police officer, physician,
or pharmacist, he or she may be charged with the felony of criminal impersonation
in the first degree. PL 190.26.
Criminal usury involves loaning money at a rate exceeding 25% per annum
or the “equivalent rate for a longer or shorter period.” PL
190.40. If the actor had a previous conviction for usury, or the offense
involved a “scheme or business of making or collecting usurious
loans,” the charge is elevated to a class C felony. PL 190.42.
- There are two levels of the scheme to defraud offense. The base offense
reads, in part, as follows:
- A person is guilty of a scheme to defraud in the second degree when he
engages in a scheme constituting a systematic ongoing course of conduct
with intent to defraud more than one person or to obtain property from
more than one person by false or fraudulent pretenses, representations,
or promises, and so obtains property from one or more of such persons.
- PL 190.60(1). In a prosecution for scheme to defraud, it is only necessary
to prove the identity of one of the persons from whom the defendant obtained
property. PL 190.60(2).