Identity theft is the illegal use of someone else’s personal identifying information in order to obtain money or credit.
In 1998, the Identity Theft and Assumption Deterrence Act was enacted. This act prohibits “knowingly transferring or using without lawful authority, a means of identification of another person with the intent to commit or to aid or abet, any lawful activity that constitutes a violation of federal law, or that constitutes a felony under applicable state or local law”
Under 18 USC 1028A, aggravated identity theft mandates that, if convicted, a defendant must be sentenced to an additional two years in prison over and above any time served for other offenses. This offense carries a maximum term of 15 years imprisonment, a fine, and criminal forfeiture of any personal property used or intended to be used to commit identity theft.
The Types of Identity Theft
Identity theft may include criminal, medical, and financial identity theft.
Identity theft involving criminal activity occurs when a criminal misrepresents him or herself as another person during an arrest. A criminal may do this to avoid a summons, prevent the discovery of a warrant issued, or avoid arrest or conviction.
Medical identity theft occurs when someone identifies himself or herself as another to obtain free medical care.
Financial identity theft occurs when someone uses another person’s identity or information to obtain credit, goods, services, or benefits.
Identity theft can include the theft of names, Social Security Numbers, credit card numbers, birth dates, or any other identifying characteristic. Identity thieves may obtain personal identifying information in several ways. Some of the identity theft crimes stem from criminals searching for discarded electronics, public record searches, stolen credit cards, credit card skimming, shoulder surfing, or computer hacking using computer viruses. Criminals may retrieve discarded pre-approved credit cards in the mail and try to activate them without the victim’s knowledge.
Identity theft facilitated by the Internet has drastically increased with thieves commonly using computer technology to obtain the personal information of victims. Many fall victim to unsolicited emails that promise benefits in exchange for your data.
With enough identifying information, a criminal may be able to conduct a wide range of crimes such as:
- Applying for loans and credit cards
- Withdrawing money from bank accounts
- Using credit cards or obtaining other goods for which the criminal would be denied if he or she were to use his or her real name
Third-Degree Identity Theft NYPL §190.78
A person has committed third-degree identity theft when they have knowingly and intentionally defrauded another person, presented themselves as someone else, acted like another person, or used identifying information of another person.
An individual may also be charged with third-degree identity or information theft if they obtain goods, money, and other services using someone else’s name and cause someone else financial loss.
A person who is convicted of Identity Theft in the third degree may face up to 1 year of jail time. Alternatively, they may be sentenced to probation for up to 2 or 3 years. Even if the defendant does not have a criminal record, alternative resolutions like an Adjournment in Contemplation of Dismissal or a plea to a non-criminal offense are not commonly offered as in other misdemeanor cases to those convicted of identity theft. A skilled attorney may be able to help the defendant explore alternative sentencing options.
Second-Degree Identity Theft NYPL §190.79
A person has committed second-degree identity theft if they have defrauded another person, presented themselves as that other person and obtained goods or services using the other person’s information.
A person may also be charged with second-degree identity theft if they use credit in someone else’s name in excess of $500, and cause someone financial loss in excess of $500.
A person may also be charged with second-degree identity theft or information theft if they commit the crime of identity theft in the Third Degree but has a conviction within the preceding 5 years for any degree of identity theft, grand larceny, Unlawful Possession of Personal Identification, or Unlawful Possession of a Skimmer Device.
Second-Degree identity theft crimes may carry a sentence of 1 to 4 years in prison for a first-time offender, but there may be alternative punishments available.
First-Degree Identity Theft NYPL §190.80
A person has committed first-degree identity theft if they assume the identity of another person and cause someone else financial loss of $2000. If they also use credit in the name of another person in excess of $2000 or obtain money and goods valued at more than $2000, they may be charged with first-degree identity theft.
If a person commits the crime of identity theft in the Second Degree, but has a conviction within the preceding 5 years for any degree of identity theft, Grand Larceny, Unlawful Possession of Personal Identification, or Unlawful Possession of a Skimmer Device.
A conviction of first-degree identity theft may be sentenced up to 7 years in prison, but there may also be alternative sentences such as probation, a split sentence of up to 6 months in jail, or a straight conditional discharged
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Third-Degree Unlawful Possession of Personal Identification §190.81
A person must possess specific personal information listed in the statute with the knowledge that it will be used for a crime.
The form in which you posses this information, whether in written form or encrypted on a cell phone, does not matter. The quantity of personal identification information, such as having one voice print or 249 retinal images, does not affect the severity of the offense unless it exceeds 250 or more, which could lead to increased criminal charges.
Second-Degree Unlawful Possession of Personal Identification NYPL §190.82
A Second Degree of Unlawful Possession of Personal Identification Information offense can be considered a felony if a person possesses 250 or more pieces of personal information such as names, addresses, social security numbers, or credit card details without legal authority. This elevates the offense from a misdemeanor to a much more severe crime, punishable by imprisonment or large fines.
First Degree Unlawful Possession of Personal Identification NYPL 190.83
First Degree Unlawful Possession of Personal Identification Information is a serious crime, and its severity varies depending on the circumstances. To be charged under any subsection of this law, a person must violate Second Degree of Unlawful Possession of Personal Identification Information, as specified in NY Penal Law 190.82.
If a person intends to commit a Second Degree of Identity Theft and supervises at least three accomplices, prosecutors can seek an indictment for a First Degree of Unlawful Possession of Personal Identification under NY Penal Law 190.83(1).
If a person has been convicted of certain crimes such as Grand Larceny and other offenses under NY Penal Law Article 190.80, within the previous 5 years of violating Second Degree Unlawful Possession of Personal Identification Information, the District Attorney can upgrade their offense to NY Penal Law 190.83(2)
NY Penal Law 190.83(3) applies when a person possesses 250 pieces of personal identification information and supervises at least two accomplices, knowing that the information belongs to a member of the armed forces outside the “lower 48”. This offense is classified as a felony.
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