Identity Theft

Identity Theft accusations are more and more common in the modern age. Only an experienced New York City Identity Theft Defense Lawyer can meet these accusations head on.

Identity Theft occurs when a person, acting with the intent to defraud, presents himself as another person, acts as that other person, or uses the personal identifying information of that person to obtain goods, money, property or services, or uses the credit of that other person.

"Personal Identifying Information" is very broad. It can include anything from a person's name, address, date of birth, etc. It can also include a person's credit card number, debit card number, his taxpayer ID number, etc. It's basically anything that could be used to identify a person.

Identity Theft arrests occur at an alarming rate, even in situations in which the police do not have the requisite proof to sustain a conviction. New York prosecutors aggressively pursue identity theft charges when they can because allegations of identity theft prevent New York courts from having the power to send the individual case to drug treatment court without the prosecutor's approval. This makes it harder to have a case dismissed. This is why one can find accusations of identity theft in situations in which charges have not historically applied. Identity theft charges are often broad in conjunction with other charges and it is not uncommon to have multiple people accused of being an "identity theft ring." There are, however, many defenses to the various forms of identity theft.

The most basic form of Identity Theft in New York is Identity Theft in the Third Degree. It is a class A misdemeanor punishable by up to one year in jail. The penalty for identity theft increases as you add aggravating factors. Below is an explanation of the three levels of identity theft in New York, what the government needs to prove to sustain a conviction, and what the applicable sanctions are for committing the specific offenses.

  • Identity Theft in the First Degree
Identity Theft in the First Degree is codified in New York Penal Code Section 190.80. It is usually brought in conjunction with other charges. Identity Theft in the First Degree is a class D felony. There is no minimum period of mandatory incarceration if a person with no prior felony convictions is convicted of either of this form of felony, however, the maximum period of incarceration is an indeterminate sentence of 2 1/3 - 7 years. An indeterminate sentence is one in which the person is sentenced to a range and the department of corrections determines how much of that range the person must serve before he is eligible for release. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 2 - 4 years and the maximum is 3 1/2 - 7 years. There is no period of mandatory parole after the person is released from custody.

There are four subsections for Identity Theft in the First Degree.

190.80(1)
For the government to sustain a conviction for Identity Theft in the First Degree (subsection 1), the government must prove the following four elements beyond a reasonable doubt. It must prove:
  1. the person assumed the identity of another person by presenting himself as that person, or by acting as that person, or by using the personal identifying information of that person;
  2. the person did so knowingly and with the intent to defraud;
  3. in doing so, the person obtained goods, money, property, other services, or used credit in the name of that other person; and
  4. the goods, money, property, other services obtained, or the credit used was in an aggregate amount of $2,000 or more.

190.80(2)
For the government to sustain a conviction for Identity Theft in the First Degree (subsection 2), the government must prove the following four elements beyond a reasonable doubt. It must prove:

  1. the person assumed the identity of another person by presenting himself as that person, or by acting as that person, or by using the personal identifying information of that person;
  2. the person did so knowingly and with the intent to defraud;
  3. the person thereby caused financial loss to another person; and
  4. the financial loss was in an aggregate amount that exceed $2,000.

190.80(3)
For the government to sustain a conviction for Identity Theft in the First Degree (subsection 3), the government must prove the following four elements beyond a reasonable doubt. It must prove:

  1. the person assumed the identity of another person by presenting himself as that person, or by acting as that person, or by using the personal identifying information of that person;
  2. the person did so knowingly and with the intent to defraud; and
  3. the person thereby committed or attempted to commit a class D or higher felony.

190.80(4)
For the government to sustain a conviction for Identity Theft in the First Degree (subsection 4), the government must prove the following two elements beyond a reasonable doubt. It must prove:

  1. the person commits the crime of Identity Theft in the Second Degree as the term is defined in New York Penal Code Section 190.79; and
  2. the person as within the past five years been previously convicted of Identity Theft in the Third Degree (190.78), Identity Theft in the Second Degree (190.79), or Identity Theft in the First Degree (190.80).

  • Identity Theft in the Second Degree
Identity Theft in the Second Degree is codified in New York Penal Code Section 190.79. It is usually brought in conjunction with other charges. Identity Theft in the Second Degree is a class E felony. There is no minimum period of mandatory incarceration if a person with no prior felony convictions is convicted of a class E (non-violent and non-drug) felony, however, the maximum period of incarceration is an indeterminate sentence of 1 1/3 - 4 years. An indeterminate sentence is one in which the person is sentenced to a range and the department of corrections determines how much of that range the person must serve before he is eligible for release. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 1 1/2 - 3 years and the maximum is 2 - 4 years. There is no period of mandatory parole after the person is released from custody.

There are four subsections for Identity Theft in the Second Degree.

190.79(1)
For the government to sustain a conviction for Identity Theft in the Second Degree (subsection 1), the government must prove the following four elements beyond a reasonable doubt. It must prove:
  1. the person assumed the identity of another person by presenting himself as that person, or by acting as that person, or by using the personal identifying information of that person;
  2. the person did so knowingly and with the intent to defraud;
  3. in doing so, the person obtained goods, money, property, other services, or used credit in the name of that other person; and
  4. the goods, money, property, other services obtained, or the credit used was in an aggregate amount of $500 or more.

190.79(2)
For the government to sustain a conviction for Identity Theft in the Second Degree (subsection 2), the government must prove the following four elements beyond a reasonable doubt. It must prove:

  1. the person assumed the identity of another person by presenting himself as that person, or by acting as that person, or by using the personal identifying information of that person;
  2. the person did so knowingly and with the intent to defraud;
  3. the person thereby caused financial loss to another person; and
  4. the financial loss was in an aggregate amount that exceed $500.

190.79(3)
For the government to sustain a conviction for Identity Theft in the Second Degree (subsection 3), the government must prove the following four elements beyond a reasonable doubt. It must prove:

  1. the person assumed the identity of another person by presenting himself as that person, or by acting as that person, or by using the personal identifying information of that person;
  2. the person did so knowingly and with the intent to defraud; and
  3. the person thereby committed or attempted to commit any felony.

190.79(4)
For the government to sustain a conviction for Identity Theft in the Second Degree (subsection 4), the government must prove the following two elements beyond a reasonable doubt. It must prove:

  1. the person commits the crime of Identity Theft in the Third Degree as the term is defined in New York Penal Code Section 190.78; and
  2. the person as within the past five years been previously convicted of Identity Theft in the Third Degree (190.78), Identity Theft in the Second Degree (190.79), or Identity Theft in the First Degree (190.80).

  • Identity Theft in the Third Degree
Identity Theft in the Third Degree is codified in New York Penal Code Section 190.78. It is usually brought in conjunction with other charges. Identity Theft in the Third Degree is a class A misdemeanor. A person convicted of a class A misdemeanor may be sentenced up to 1 year in jail.

190.78(1)
For the government to sustain a conviction for Identity Theft in the Third Degree (subsection 1), the government must prove the following three elements beyond a reasonable doubt. It must prove:
  1. the person assumed the identity of another person by presenting himself as that person, or by acting as that person, or by using the personal identifying information of that person;
  2. the person did so knowingly and with the intent to defraud; and
  3. in doing so, the person obtained goods, money, property, other services, or used credit in the name of that other person, or caused financial loss to that person.
190.78(2)
For the government to sustain a conviction for Identity Theft in the Third Degree (subsection 2), the government must prove the following three elements beyond a reasonable doubt. It must prove:
  1. the person assumed the identity of another person by presenting himself as that person, or by acting as that person, or by using the personal identifying information of that person;
  2. the person did so knowingly and with the intent to defraud; and
  3. the person thereby committed a class A misdemeanor or higher.
Identity Theft in any degree is a serious crime. If you, or a loved one, is the subject of any identity theft investigation or if you've already been arrested, do not hesitate to contact me for a free consultation.