Arguments to Establish Identity Theft By Michael Joseph on April 27, 2018

On March 22, 2018, the State’s Court of Appeals heard arguments on pair of cases concerning what evidence is necessary to establish identity theft.  It was argued that ‘assuming someone’s identity is a separate element that needs to be established in order to prove the crime of identity theft under the law.

In People v. Roberts, the  New York Appellate Division, First Department in 2016 reversed an identity theft conviction against Kerri Roberts for insufficient evidence. Roberts was arrested after he attempted to use a forged credit card in 2011.  The card Roberts used had a valid account number but bore a fictitious name, Craig Jonathan.  Roberts also had a forged driver’s license with his photo and Jonathan’s name. Roberts was convicted of second-degree identity theft and two counts of possession of a forged instrument, for which he was sentenced to three to six years in prison. The Appellate Division, reversed the identity-theft conviction because, it said, the use of personal identifying information alone is insufficient.  Here, while the proof was clear that defendant used the personal identifying information of the victim … there was no proof that he assumed the [victim's] identity. Instead, he assumed the identity of a fictitious person.  Hence, in order to establish the crime of aggravated identity theft, the people must show that a defendant knew that a form of ID they used actually belonged to another person.

Even though Manhattan District Attorney’s Office appealed the above case, to the state’s highest court stating that the evidence at trial “provided the jury with a legally sufficient basis to conclude that [the] defendant” assumed someone else’s identity by using someone else’s personal information.” Penal Law 190.79 and 190.80, both felonies, state that a defendant knowingly, and with intent to defraud, assumes the identity of another person by presenting him or herself as that other person, by acting as that other person, or by using the personal identifying information of that person to commit a crime. Because Roberts did not actually assume the identity of the victim, there was a gray area.

The State Court of Appeals also heard arguments in People v. Rush, in which a woman was accused of assuming the identity of another person, identified as S.L., by using his name to deposit forged checks into a fraudulent bank account that had been opened in his name by an unidentified man at a Rochester-area bank without S.L.’s knowledge. Terri Rush was convicted of first-degree identity theft and possession of a forged instrument for which she was sentenced to five years of probation.

Even though Rush’s criminal defense lawyers appealed the Appellate Division’s decision, arguing that she did not assume anyone’s identity when she deposited the fraudulent check, the Appellate Division, affirmed the conviction, saying that the defendant’s contention that the phrase “assumes the identity of another person” is a discrete element that has to be proved incorrect based on a previous ruling by the court. Our New York criminal defense attorneys have handled numerous identitiy theft cases and if you have been arrested and charged with identity theft, call our New York identity theft criminal defense lawyers today.

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