At its basic level, the crime of Identity Theft consists of pretending to be another person in order to illegally obtain some sort of benefit or cause some sort of loss. In New York, the most common scenarios where Identity Theft is charged concern either the use of another person's credit or debit card without their permission, or pretending to be someone else to facilitate some other crime.
There are three degrees of Identity Theft under New York law, and the severity of the charge relates either to the amount fraudulently obtained, the amount lost by the victim, or the level of the secondary crime which that individual allegedly commits. It is important to note that when a prosecutor is basing the charge on the amount of money allegedly obtained or lost, they are required to show a concrete figure based on receipts, bank statements, etc. A prosecutor cannot merely allege that a credit or debit card was stolen and used at a fancy upscale establishment and therefore the amount obtained by the thief must be over the statutory threshold. Additionally, the prosecutor needs to show more than mere possession of bank cards which were reported stolen at the time the person is arrested. To charge Identity Theft, it is not even enough to show that the person was in possession of the cards, and the cards were fraudulently used after they were discovered stolen. The prosecutor must somehow show that the particular person charged was the same individual who assumed the identity of the card holder to make the illegal purchases. This can be done either with surveillance video from the store showing the person at the register attempting to make a purchase, or it can be proved circumstantially if the individual is discovered in possession of the property illegally purchased using the stolen card.
Frequently, when the prosecutor bases this charge on the use of a false identity to facilitate the commission of another crime, it relates to the actual fraudulent purchase and leads to a second count of Identity Theft for the same criminal transaction. For example, if a person uses a stolen credit card at a department store and buys five thousand dollars' worth of merchandise, they can be charged with the statute's subsection for obtaining a monetary benefit over a certain amount, but they can also be charged under the subsection for assuming a false identity to further commit a crime, in this case the crime being the Larceny (or theft) of the victim's money used to make the purchase. So for that one transaction, a person will likely be charged with the actual larceny, and two separate counts of Identity Theft. A smart prosecutor knows that the longer the list of felony charges which appear on a complaint or indictment, the more pressure a defendant will feel to make a plea deal favorable to the government.
With that in mind, the following are the three levels of Identity Theft, and what the prosecution must show in each case:Identity Theft in the Third Degree: NYPL § 190.78
This is the lowest level charge under the statute. The prosecutor is merely required to show that an individual presented him or herself out as someone who they are not, either to obtain any sort of monetary benefit or cause some sort of financial loss to the person who they claimed to be; or while assuming that false identity, the person committed a class A misdemeanor.
In this section, the prosecutor is only required to show that money was obtained or some sort of loss was incurred. There is no minimum requirement that needs to be proven.
Identity Theft in the Third Degree is a class A misdemeanor, punishable by up to one year in jail.Identity Theft in the Second Degree: NYPL § 190.79
In order to charge Identity Theft in the Second Degree, the prosecutor must show that the person who held him or herself out to be another individual either obtained a benefit that exceeded five hundred dollars, caused a loss of at least five hundred dollars to the person whose identity was assumed, or that using the identity of another person was used in the commission of a felony.
In practice, the major difference between Identity Theft in the Second and Third Degrees is that if a prosecutor can show that the five hundred dollar threshold is met, they can charge the more severe level of the crime.
Identity Theft in the Second Degree is a class E felony, punishable by up to three years in state prison.Identity Theft in the First Degree: NYPL § 190.80
Identity Theft in the First Degree is the most serious level of this type of crime. The prosecutor must show that over two thousand dollars was either obtained by the defendant or lost by the victim, or that the assumption and presentation of the false identity was done to commit a class D felony or higher.
Identity Theft in the First Degree is a class D felony, punishable by up to seven years in state prison.
While a prosecutor may claim that Identity Theft cases with surveillance video of an individual making purchases at a register are open and shut cases, the reality is often different. Frequently, the surveillance videos which prosecutors tout as irrefutable evidence are not as clear as they would lead you to believe, or only show the individual in the store, not actually making any purchases - scenarios we have used in real life cases to cause dismissal of criminal charges in New York. Hiring a top New York Identity Theft attorney to evaluate the evidence in an Identity Theft case is often the difference between accepting a bad plea deal and maintaining your freedom.
At the Law Offices of Jeffrey Lichtman, the experienced attorneys have defended countless Identity Theft cases and obtained extremely favorable results. In several cases, the prosecutors have started out extremely confident that the end result would be significant jail time, only to have the matters resolved in either a non-criminal disposition or a short probationary period based on the strategic dismantling of the government's case.
If you have been charged with Identity Theft, call us today at (212) 581-1001 for a free case evaluation.