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Identity Theft in the First Degree
The most serious of all Identity Theft crimes, Identity Theft in the First Degree (NY PL 190.80) is a "D" felony punishable by up to seven years in state prison. While prosecutors throughout New York City (Manhattan, Brooklyn, Queens and the Bronx) often investigate First Degree Identity Theft in conjunction with other frauds, an arrest or indictment for New York Penal Law 190.80 need not be part of a greater conspiracy. As former prosecutors in the Manhattan District Attorney's Office and as New York criminal defense lawyers, the criminal defense attorneys at Saland Law have in various capacities prosecuted, investigated, defended and represented individuals involved in "big" and "small" Identity Theft crimes. Regardless of the magnitude of the offense and how many co-conspirators are involved, Identity Theft in the First Degree does not change in its potential for serious ramifications to an accused.
New York Penal Law 190.80(1)Like both Identity Theft in the Third Degree (NY PL 190.78) and Identity Theft in the Second Degree (NY PL 190.79), the basic premise of the first subsection is as follows:
If you knowingly assume another person's identity, and you do so with the intent to defraud, you are on your way to satisfying the elements of Identity Theft in the First Degree. Beyond your intent and knowledge, you must also actually use that person's personal identifying information. As previously discussed in other sections addressing Identity Theft crimes, personal identifying information is specifically defined in the New York Penal Law and includes such basic information as dates of birth, social security numbers and debit card numbers. New York Penal Law 190.80(1) deviates from the lower degree offenses in that you must also use this personal identifying information to obtain goods, services, property or money in an amount exceeding $2,000.
If you buy a high end LED television for $2,500 with another person's credit card but without their permission or authority in order to defraud, then you have likely perpetrated Identity Theft in the First Degree. This example should illustrate how one does not need to be involved in a greater scheme to be guilty of this crime. In fact, if you were involved in a greater conspiracy, each time you perpetrated the crime would be a new offense that could have a sentence potentially running consecutive to each other incident.
New York Penal Law 190.80(2)Subsection two of Identity Theft in the First Degree is very similar to subsection one. However, instead of obtaining money, property, goods or services in excess of $2000, your actions must create a financial loss to that person in an aggregate of $2000.
New York Penal Law 190.80(3)Just as prosecutors have the ability to "bump up" a misdemeanor Identity Theft to a felony Identity Theft in the Second Degree, prosecutors can do the same for Identity Theft in the First Degree. If you commit any crime of Identity Theft and at the same time commit or attempt to commit a "D," then the level or degree of your Identity Theft can be "bumped" up to a "D" felony as well.
On of the most common means by which prosecutors "bump" up simple misdemeanor Identity Theft crimes is as follows. You go to Duane Reade, for example, and use a person's credit card to make a $5, $50 or $150 transaction. You sign the receipt or transaction record as if you were the rightful owner of the credit card. This completion of the transaction record likely constitutes the crime of Forgery in the Second Degree. Not only is Forgery in the Second Degree a "D" felony, your Identity Theft in the Third Degree is "bumped up" to an Identity Theft in the First Degree.
New York Penal Law 190.80(4)The fourth subsection for Identity Theft in the First almost mimics the language for Identity Theft in the Second Degree pursuant to New York Penal Law 190.79(4). If you commit Identity Theft in the Second Degree and in the past five years of you were convicted of any degree of Grand Larceny, Identity Theft, Unlawful Possession of Personal Identification Information or Unlawful Possession of a Skimmer Device, then your "E" felony Identity Theft (punishable by up to four years in prison) can be "bumped" up to the "D" felony Identity Theft (punishable by up to seven years in prison).
As with each degree of Identity Theft in New York, the laws and statutes can be confusing not only to the accused and his or her family, but to a criminal lawyer not versed in the various crimes and their distinct nuances. As we repeatedly note at Saland Law, no criminal attorney can guarantee a particular outcome. Fortunately, however, the New York criminal lawyers at Saland Law not only have the experience defending clients in Identity Theft crimes and related charges, but our founding partners served as prosecutors in the Manhattan District Attorney's Office There, Jeremy Saland served in the Identity Theft Unit. It is this experience that Saland Law will utilize to articulate what we believe is the strongest legal arguments and compelling mitigation to attempt to not only protect your liberty, but preserve your livelihood and integrity.
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.
