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Identity Theft and Related Offenses

The attorneys at Galluzzo & Johnson 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.

Identity Theft

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 a person’s
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 A misdemeanor
  • 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. PL 190.20.

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).

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