Identity theft is a serious offense that can have long-term consequences. Once you have been convicted of ID theft, everything you do from them on will be called into question. It leaves a mark on you and your record, which stays with you for the rest of your life.
The circumstances don’t matter, only the outcome. If you are convicted, it could impact where you live, your ability to rent an apartment or buy a home, and where you can work.
ID theft investigations have become much more sophisticated with high-tech programs and the use of the internet for instant research and in-depth analyses. All it could take is one piece of evidence and it’s over.
But it doesn’t have to.
When you have a qualified, knowledgeable, aggressive criminal defense attorney in your corner it can be a game-changer.
Overview of ID Theft
ID theft occurs when a person uses someone else’s personal information without consent to benefit financially. This typically involves misrepresentations, false statements, deception, and fraud.
PII stands for Personal Identifiable Information. It is a crime to misuse a person’s PII – both personal and financial. Examples of PII include:
- Social security number
- Credit card numbers
- Driver’s license number
- Bank account information and associated PIN
Often this information is obtained via the internet which can result in added charges for cybercrime. In fact, internet purchasing scams and unsecured networks are two of the most common ways that a person can illegally gain access to someone’s PII and commit ID theft.
Some of the most common ways that ID theft crimes are committed include:
- Using counterfeit credit cards
- Forging a signature on a check
- Unauthorized use of someone else’s credit card to make an online purchase
- Using counterfeit driver’s license
- Forging a signature on a credit card or debit card purchase
- Submitting fraudulent credit card applications
Federal ID Theft Laws
Most cases of identity theft are handled at the state level. Typically, the federal government will only step in under a handful of circumstances such as the dollar amounts stolen are very high, many IDs are used in the commission of other crimes, and if the ID is government-issued to a federal employee.
Under federal law, ID theft is a predicate offense. This means that a person can only be charged with the crime of ID theft if they commit another crime first and in the process of committing that crime, they use the PII of another person.
18 USC 1028 is part of the Identity Theft and Assumption Deterrent Act of 1998. It was the first federal statute that directly addressed the crime of ID theft.
Makes it a crime to use a person’s personal or financial information without their permission.
Makes it illegal to use the PII that belongs to another person in a) connection with specified federal offenses or b) in relation to terrorism activities or offenses.
ID theft crimes:
- 18 USC 641 – Public money, property, or records
- 18 USC 656 – Theft, embezzlement, or misapplication by a bank officer or employee
- 18 USC 664 – Theft or embezzlement from employee benefit plan
- 18 USC 911 – Citizen of the United States
- 18 USC 922(a)(6) – Unlawful acts (firearms)
- Any crime from Chapter 47 – Fraud and false statements
- Any crime from Chapter 63 – Mail fraud and other fraud offenses
- Any crime in Chapter 69 – Nationality and citizenship
- Any offense in Chapter 75 – Passports and visas
- 15 USC 6821 – Privacy protection for customer information of financial institutions (obtaining customer information by false pretenses)
- Violations concerning willfully failing to leave the United States after deportation and creating a counterfeit alien registration card (e.g., see penalty provisions at 8 USC 1253 and 1306);
- Various immigration offenses (e.g., 8 USC 1321-1330); and
- False statements relating to Social Security programs (e.g., 42 USC 408, 1011, 1307(b), 1320a–7b (a), and 1383a).
Other Federal Laws that Address Identity Theft
Several other federal laws are designed to help victims of ID theft remove unauthorized charges from their credit reports as well as purge inaccurate information.
Identity Theft Assumption and Deterrence Act – Makes it a crime to commit fraud in connection with ID documents in several circumstances. Some are directly related to ID theft.
Identity Theft Penalty Enhancement Act – Establishes penalties for aggravated ID theft and changes provisions of ID theft under Title 18.
Fair Credit Reporting Act – Doesn’t address ID theft directly but helps victims in removing negative marks for unauthorized accounts or charges from their credit reports.
Fair and Accurate Credit Transactions (FACT) Act of 2003 – Prevents ID theft and helps the victim.
Fair Credit Billing Act – Not an ID theft statute but gives consumers the opportunity to obtain proof of charges and an explanation of charges that are fraudulent and helps them remove unauthorized charges from their accounts.
Electronic Fund Transfer Act – Not an ID theft statute but gives consumers the ability to challenge unauthorized transactions and have compromised accounts recredited or when an error has occurred.
New York ID Theft Laws
Under New York law, identity theft is the illegal use of a person’s PII and the use of that information to commit a crime. They may use it to fraudulently establish lines of credit, apply for loans, make purchases, obtain housing (approval for an apartment or rental home), or obtain employment.
New York ID theft has three degrees. The degree of the crime is based on the value that was lost or gained, whether it is money, property, services, or anything of value.
- Third-degree identity theft occurs when a person knowingly and with intent to defraud assumes the identity of another person and uses that identity to:
- Commit a Class A Misdemeanor or higher level crime
- Obtains services, money, goods, or property
- Uses credit
- Causes financial loss
- Second-degree identity theft occurs when a person knowingly and with intent to defraud assumes the identity of another person and uses that identity to:
- Commit a felony or act as an accessory to a felony
- The value that is lost or gained is in excess of $500
- Within the previous 5 years, they have had a prior third-degree ID theft conviction
- First-degree identity theft occurs when a person knowingly and with intent to defraud assumes the identity of another person and uses that identity to:
- Commit a Class D Felony or act as an accessory to a Class D Felony or higher
- The value that is lost or gained is in excess of $2,000
- Within the previous 5 years, they have had a prior second-degree ID theft conviction
- Aggravated identity theft occurs when a person knowingly and with intent to defraud assumes the identity of a person who is a member of the armed forces and has knowledge that the person is at that time deployed outside of the continental United States and uses that identity to:
- Obtains services, money, goods, or property or uses credit in the name of a member of the armed forces
- The value that is lost or gained is in excess of the aggregate amount of $500
- Causes financial loss to the member of the armed forces in the aggregate amount that exceeds $500
Other New York laws that pertain to identity theft include:
Penalties for Federal ID Theft Conviction
The penalties for federal ID theft are steep. It is a very serious crime. The sentence is further increased by how it is carried out. The majority of sentences for crimes are served concurrently, meaning at the same time.
In other words, if the defendant is sentenced to 2 years for the ID theft crime and 3 years for the crime it was connected to, they would serve 5 years – the 3 years for the crime, then the 2 for the ID theft.
18 U.S. Code § 1028 – Fraud and related activity in connection with identification documents, authentication features, and information
- Up to $1,000
- Maximum 15 years in prison
18 U.S. Code § 1028A – Aggravated identity theft
- Always involves two sentences – one for obtaining the PII for the ID theft and the second for using the information while committing another crime
- Minimum 2 years in prison
- Connected to a violent crime, for the purpose of drug trafficking, or a prior ID theft conviction
- Maximum 20 years in prison
- Connected to committing or aiding domestic or international terrorism
- Maximum 30 years in prison
- Each Aggravated ID Theft sentence is to be served consecutively to each other or any other sentence. The judge cannot reduce the sentence for the second crime to make up for the mandatory two-year sentence to be run consecutively to the first. The First Step Act does make allowance for early release after sentencing. Non-violent offenders may be able to earn 54 days of credit for each year that they serve on a federal sentence. This is not available if the secondary crime was violent, such as one involving terrorism.
Penalties for an ID Theft Conviction in New York
Your attorney can help you determine your potential sentence. This provides basic information on sentencing for ID theft. A person who has prior convictions will have a harsher sentence than a first-time offender.
For instance, a person who has been convicted of identity theft in the past may face jail time when a first-time offender would only have probation. Often certain elements of a case will also determine the punishment.
Keep in mind that this is only for the identity theft charge. It does not include any other charges that may be added.
New York Penal Law – Article 190
New York Penal Law § 190.78 – Identity theft in the third degree
- Class A Misdemeanor
- Maximum 364 days in jail
- Mandatory state surcharges
- Community service
New York Penal Law § 190.79 – Identity theft in the second degree
- Class E Felony
- Maximum 4 years in prison
New York Penal Law § 190.80 – Identity theft in the first degree
- Class D Felony
- Maximum 7 years in prison
New York Penal Law § 190.80-a – Aggravated identity theft
- Class D Felony
- Maximum 7 years in prison
Defenses for ID Theft
Your attorney will sit down with you and review your case to determine the best defense. Each case is different. These are some of the more common defenses of ID theft:
- The defendant had the authorization to use the credit or debit card
- Mistaken identity
- Lack of intent
- Illegal search and seizure
- Insufficient evidence
- Falsely accused
- The defendant was younger than 21 and was only using the ID to purchase alcohol – there was no other intended use
- The defendant was younger than 18 and was only using the ID to purchase tobacco products – there was no other intended use
- The defendant used or possessed another person’s PII or identification and was only using the ID to gain access to a place or venue with age restrictions
ID theft is a serious crime and as it grows in prevalence there is increased public outrage. If you are charged with identity theft you could find yourself being made an example in court by overzealous prosecutors looking to make a point. This is why you need a skilled, sharp attorney who will fight for you and make sure that have the best outcome possible for your case.
You need The Litvak Law Firm. Mr. Litvak will ensure that your rights are protected. He will sit with you and review your case to find the best defense and he will work hard to make sure that you have the best representation in the courtroom or outside of it. Whether you have been charged with ID theft or you suspect you are under investigation for the crime, you need legal representation now. Don’t wait until you are days away from your court date and scramble to find a criminal defense lawyer to represent you. Call at (718) 989-2908 for your free consultation today and be fully prepared for what comes next.