Identity Theft in the Second Degree – New York Penal Law 190.79

Identity Theft in the Second Degree, pursuant to New York Penal Law 190.79, is an "E" felony punishable by up to four years in state prison. Because it is a felony, there are exponentially greater consequences to an arrest or conviction for Identity Theft in the Second Degree than Identity Theft in the Third Degree. You should discuss these ramifications in detail with your New York criminal defense lawyer. Whether you are investigated, arrested, indicted or standing trial in New York City (Manhattan, Queens, Brooklyn or the Bronx) or a suburban county such as Westchester or Rockland, it is critically important to not only have a basic understanding of the crimes of Identity Theft, but that your New York criminal defense attorney has real world knowledge and experience representing clients accused of these crimes.

Identity Theft in the Second Degree falls into four separate subsections as follows:

New York Penal Law 190.79(1)

You are guilty of NY PL 190.79(1) if you knowingly and with the intent to defraud assume another person's identity by, for example, using that person's personal identifying information to obtain money, goods, services or property or use their credit in an amount that exceeds $500. As noted on the main Identity Theft page and Identity Theft in the Third Degree page, "personal identifying information" is a specifically defined term in the New York Penal Law. It includes such personal information as social security numbers, drivers license numbers, dates of birth and debit card numbers.

An easy way to view this crime is if you use a credit card belonging to another person and sign off on a transaction in excess of $500 (maybe a few pairs of jeans at Bloomingdales), then this is a likely charge. It is important to keep in mind that there is the potential for a greater "D" felony "bump up" in this scenario. That is, if you sign a receipt in the name of the other person, then you may be committing a "D" felony of Forgery in the Second Degree (NY PL 170.10). If you commit a "D" felony while perpetrating any degree of Identity Theft, then the Identity Theft is automatically "bumped up" to a "D" felony as well (see Identity Theft in the First Degree - NY PL 190.80).

New York Penal Law 190.79(2)

Subsection two of Identity Theft in the Second Degree is very similar to the first subsection. The major difference is that instead of getting goods or services in excess of $500, your actions cause a financial loss to that person in an aggregate of $500.

New York Penal Law 190.79(3)

If you commit the crime of Identity Theft and at the same time commit another felony or attempt to commit another felony (or acts as an accessory), then you have violated subsection three of Identity Theft in the Second Degree.

An easier way to look at this subsection is as follows. You work in a store and you use your manager's social security number to log into a system to alter your hours worked so that you can get overtime. You then make a change into the records of the business. The purpose of this is to get another $1250 in pay. This is an attempted Grand Larceny in the Fourth Degree. Moreover, you may have also committed the felony of Falsifying Business Records in the First Degree and the identity fraud was a means to perpetrate it. Both of these crimes (Attempted Grand Larceny in the Fourth Degree and Falsifying Business Records in the First Degree) would likely "bump up" your misdemeanor Identity conduct to an "E" felony.

New York Penal Law 190.79(4)

The last subsection for Identity Theft in the Second Degree is another "bump up" crime. That is, if you commit the crime of Identity Theft in the Third Degree (New York Penal Law 190.78) and you have convicted in the last five years of any degree of Grand Larceny, Identity Theft, Unlawful Possession of Personal Identification Information or Unlawful Possession of a Skimmer Device, then your misdemeanor Identity Theft can be "bumped" up to an "E" felony. Interestingly, the legislature did not add the crimes of Forgery, Falsifying Business Records or Criminal Possession of a Forged Instrument to the list of crimes that can be used by prosecutors to "bump up" a misdemeanor offense to a felony.

The brief paragraphs above are evidence of the fact that Identity Theft in the Second Degree is a complex statute. Equally clear should be the fact that unless you are a New York criminal attorney who routinely has or currently is handling Identity Theft crimes, you can be easily overwhelmed by a prosecutor's arsenal. No criminal defense attorney can guarantee a particular outcome, but you should put yourself in the best position possible to challenge the evidence against you, ascertain your defense, and implement the best course of action to protect your future. Our two founding partners, Jeremy Saland and Elizabeth Crotty, have the real world experience not only as New York criminal defense lawyers, but as former Manhattan prosecutors who served in the Identity Theft Unit and the Investigation Division respectively.

Further information on Identity Theft crimes, laws and cases in the news can be found on the New York Criminal Lawyer Blog's Identity Theft Section.

Call our New York criminal defense attorneys at (212) 312-7129 or contact us online today.