Category Archives: Penal Law

Does the “place of business” exception of possession of a firearm cover all employees?

Under Penal Law § 265.03, it is a Class C violent felony to possess an unlicensed firearm. However, New York’s Legislature crafted an exception for the possession of an unlicensed firearm in an individual’s home or “place of business;” if the exception applies, the offense becomes a misdemeanor. In People v. Wallace (Ct. App. 5/8/2018) (Feinman, J.) (6-1-0) the Court of Appeals held that lower courts should read the “place of business” exception narrowly. Accordingly, the court explained that this exception does not protect any employee who is caught with an unlicensed firearm while at work, rather it only protects those “who have a greater interest in protection of their premises, principal control over said premises, and a strong tie to the continued safety and security of their establishment and the goods and services they offer.”

This case stems from an incident where an assistant manager of a McDonalds in Buffalo shot himself in the leg after a gun in his pocket discharged. Upon arrest, the defendant was charged with CPW 2º.  Continue reading

Source Code and Unlawful Use of Secret Scientific Material

In 1967, the drafters of the New York Penal Law sought to ensure that a defendant who makes a copy of secret scientific material, but does not take the original, would still be subject to criminal sanctions even though the defendant has not technically committed larceny. In the digital age where nearly everything is electronically stored, this poses new issues for courts to grapple with. In People v. Aleynikov (Ct. App. 5/3/2018) (Fahey, J.) (7-0), the Court of Appeals, affirming the Appellate Division’s order, held that the defendant made a “tangible reproduction or representation” of source code when he uploaded the code to the hard drive of a German server and subsequently to his personal computer.

Defendant Aleynikov was a former Goldman Sachs’ employee who left the firm to work at a new startup company, Teza Technologies. The defendant, tasked with developing Teza’s high-frequency trading infrastructure and software from scratch, decided to download Goldman’s infrastructure codes to use them at Teza. After the breach was found, the defendant was arrested by FBI Agents and after waiving his Miranda rights, admitted to downloading Goldman’s source code to an unblocked German website where the defendant then downloaded the codes to his personal laptop. Continue reading

Identity Theft

In People v. Roberts (Ct. App. 5/3/2018) (Rivera, J.) (6-1), the Court of Appeals held that the statutory requirement that a defendant assume the identity of another person is not a separate element of the crime of identity theft, but merely introduces categories of conduct through which an identity may be assumed. Thus, a person is guilty of this relatively new crime (established in 2002) if he or she uses the personally identifying information of another.

The case was heard as a consolidated appeal from the conviction of two defendants, Kerri Roberts and Terrie J. Rush. Roberts was arrested after attempting to purchase $1,000 worth of merchandise from a sporting goods store in New York City using an American Express credit card printed with the name “Craig E. Jonathan.” Roberts also presented a New Jersey driver’s license bearing the same name, but featuring a photograph of Roberts himself. An investigation revealed that the credit card number had been issued to a person living near Buffalo, who had not given Roberts permission to use her card, and that Craig E. Jonathan was an entirely fictitious person. Roberts was charged with one count of Identity Theft in the Second Degree and two counts of Criminal Possession of a Forged Instrument in the Second Degree.  Roberts moved to dismiss the identity theft count on the grounds that he was pretending to be Craig E. Jonathan, not the credit card account holder. The trial court rejected Roberts’ motion and he was convicted on all counts. Roberts appealed, and the Appellate Division, First Department vacated Roberts’ Identity Theft conviction and dismissed that count of the indictment, but otherwise affirmed. The First Department reasoned that mere use of personal identifying information, such as a credit card number, is insufficient in and of itself to establish the crime of identity theft. The Court held that the People must prove both that the defendant used personal identifying information and assumed the victim’s identity. Since Roberts assumed the identity of the fictitious Craig E. Jonathan, rather than the identity of the credit card account holder, that element of the crime of identity theft was not satisfied.

Likewise, Rush was convicted based on her involvement in a scheme in which she deposited stolen and forged checks in a bank account opened under the name of an uninvolved third-party, without that person’s knowledge or permission, from which the funds were later withdrawn. The victim’s signature was forged on the back of each check deposited into the account, and the deposit slips listed the victim’s name and the unauthorized bank account number. Rush was convicted of one count of Identity Theft in the Second Degree and one count of Criminal Possession of a Forged Instrument in the Second Degree. Rush appealed, and the Appellate Division, Fourth Department, unanimously affirmed Rush’s conviction, holding that Rush’s use of the victim’s name and bank account number established that she assumed his identity within the meaning of the statute. Contrary to the First Department, the Fourth Department held that assuming the identity of another person is not a separate and discrete element that must be proved.

The relevant statute states that a person is guilty of First- and Second-Degree Identity Theft “when [such person] knowingly and with intent to defraud assumes the identity of another person by presenting [himself or herself] as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby . . . commits or attempts to commit [a felony]” (Penal Law §§ 190.79 [3]; 190.80 [3]).

The Court of Appeals pointed out that the Penal Law broadly defines “personal identifying information” to include the type of data commonly used in transacting commercial matters such as a “person’s name; address; telephone number; social security number; checking, savings, debit card, or credit card account number or code; signature,” or “any other name, number, code or information that may be used alone or in conjunction with other such information to assume the identity of another person” (Penal Law § 190.77 [1]).

The Court of Appeals focused on the statutory text in reaching its conclusion that actually assuming the identity of another is not a separate element that must be proven to support a conviction for identity theft. The Court reasoned that, because the statute says a person must “assume the identity of another person by presenting [themselves] as that other person, or by acting as that other person or by using personal identifying information of that other person,” the statutory text expressly defines the types of conduct by which a person assumes the identity of another (emphasis added). Therefore, because any of the statutorily enumerated types of conduct are ways in which an identity can be assumed, assuming the identity of another is not a separate and distinct element of the crime. Essentially, the majority concluded that use of personal identifying information, without more, establishes that a defendant assumed another person’s identity, provided the requisite mens rea is present.

The Court also rejected the defendants’ argument that the rule of lenity should apply in this case. The Court found that the statute was clear and that the overall legislative scheme and supporting legislative history confirm the clarity of the statutory language. The Court also rejected the argument that a split between the First and Fourth Departments is indicative of inherent ambiguity in the statute.

Judge Wilson wrote a spirited, separate opinion, concurring in part and dissenting in part. Judge Wilson concurred in the Court’s affirmance of defendant Rush’s conviction, but dissented from the Court’s reversal reinstating defendant Roberts’. (BJD/LC)

Broken nose, three chipped teeth do not constitute serious physical injury

In People v. Rosado (1st Dept. 10/4/2011), the issue for the court was whether the People proved the existence of a serious physical injury.  After he sustained the injuries, the victim underwent surgery on his nose.  The surgery was successful and, apart from a slight indendentation in the nose, he did not suffer any lasting effects.  The indentation did not qualify as a serious disfigurement because a "reasonable observer" would not find the "altered appearance distressing or objectionable."  In addition, the victim's three chipped teeth did not rise to the level of serious injury.  Accordingly, the Defendant's conviction was reduced to Assault 3º, a misdemeanor.  (LC)

AD1 affirms trial court order setting aside verdict

In People v. Rios (1st Dept. 9/22/2011), the previous manager of a building as well as the corporate owner, were found guilty of Criminally Negligent Homicide and Reckless Endangerment 2º.   The victims in the case were two firefighters who were killed while trying to extinguish the flames.  Two of the apartments had unsafe conditions.  The first had faulty wiring.  The second had an illegal partition.  The fire started in the first apartment and then spread.  The People's theory was that the conditions in the second apartment were the cause of the firefighters' deaths and that the manager had actual knowledge of them.

Following the conviction, the trial court set aside the verdict under CPL § 330.30, finding insufficient evidence of knowledge.  The First Department agreed with the decision.  "The inferences upon which the People rely are impermissibly speculative. Furthermore, the People called the building's superintendent, who testified that he knew about the partition in 4-L but never told Rios about it. Even if the jury discredited that testimony, such disbelief would not supply affirmative proof of the contrary proposition."  (LC)