Third Degree Identity Theft: NY Penal Law 190.78
Repeat the following two words as many times as you need. Identity Theft. A crime that makes people angry, shutter with fear, sigh with disgust and lash out in frustration, the visceral reaction to Identity Theft crimes in New York is shared not only by regular law abiding people, but the courts, prosecutors and police who are sworn to uphold the law. Whether your friends and family will support you upon an arrest for Third Degree Identity Theft, New York Penal Law 190.78, is a personal matter, but your employer and licensing agency as a realtor, broker-dealer, nurse or other professional is quite a different story. For that matter, a potential Crime Involving Moral Turpitude, aka, CIMT, immigration, ICE and Homeland Security will not merely frown upon your arrest for PL 190.78, but the least of your concerns will be getting pulled from the line when flying into New York from your home country. Instead, your visa, for example, may not be renewed or potentially revoked. At bottom, whether you step one foot in a jail cell on Rikers Island or elsewhere, you are given a Desk Appearance Ticket for PL 190.78 and released from a precinct, or your criminal defense lawyer is doing his or her best to expedite you through the arraignment process in a New York criminal court in Queens, Brooklyn, Manhattan or the Bronx, Third Degree Identity Theft is a misdemeanor crime that should not be underestimated in its direct penalties and collateral consequences.
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You are guilty of Third Degree Identity Theft, New York Penal Law 190.78, if you knowingly and with the intent to defraud, assume the identity of another person. More than that, you must also present yourself as that other person, act as that other person, or use personal identifying information of that other person and as a result, pursuant to NY PL 190.78(1), obtain money, goods, property or services, use credit in the name of that other person, or cause a financial loss to that other person. Even if you do not obtain any service, goods, etc., if you hold yourself out as this other person by assuming his or her identity as addressed here and commits a class “A” misdemeanor crime or higher, you are also guilty of Third Degree Identity Theft pursuant to NY PL 190.78(2). A convoluted statute with many scenarios criminalized, be warned. If damages or losses exceed $500.00 or $2,000.00 respectively, or you are involved in other felony activities, expect to have quite a different conversation with your Identity Theft lawyer or criminal defense attorney. In such scenarios the District Attorney can charge you with the class “E” or “D” felonies of Second Degree Identity Theft and First Degree Identity Theft respectively. Instead of up to one year in jail and three years probation for your PL 190.78 conviction, a judge can sentence you to up to four or seven years in prison and five years probation.
Your criminal lawyer should, and in fact must, take the time to full understand the evidence and allegations associated with your Third Degree Identity Theft arrest regardless if you were given a Desk Appearance Ticket for PL 190.78 or you were dragged through the criminal justice system. One of the reasons, as addressed above, is the slight and relatively insignificant difference between misdemeanor and felony Identity Theft. If this becomes an issue in your case, your criminal defense lawyer needs to have a complete grasp on your case’s potential trajectory and how to stop matters going from bad to worse.
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Outside of the “regular” defenses your criminal defense lawyer may pursue from the failure of the police to read you’re your “rights,” the legality of your arrest and search, how you are connected to a fraud if committed remotely, etc., there are also statutorily defined defenses to Identity Theft in the Third Degree codified in the New York Penal Law. These affirmative defenses found in New York Penal Law 190.84 are limited, but protect underage kids using personal identifying information to purchase alcohol or tobacco or gaining access to a club or bar. Although not statutorily defined, an area that may be ripe for you defense is exploring whether the information you possessed of another person is considered “personal identifying information” not based on your perception, but as a matter of law.
Misdemeanor Third Degree Identity Theft is far from trifle. It is instead debilitating from the onset of an arrest. Don’t allow yourself to be overrun by allegations and the perception of guilt. Take the initiative to identify your strongest defense and the best defense lawyer to implement the same. When there is no substitute for advocacy, knowledge and experience, you can count on the New York criminal lawyers and former Manhattan prosecutors at Saland Law.
Call us at 212.312.7129 or contact us online today to speak with our New York attorneys and former Manhattan prosecutors.