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the name of an uninvolved third-party, without that person’s knowledge or permission, from which the funds were later withdrawn.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)

Breathalyzer Results After Two Hours; An Issue of Consent

Oftentimes, when individuals refuse to submit to a breathalyzer test, there are consequences they must be warned of by police. However, these consequences are not absolute. In People v. Odum (Ct. App. 5/3/2018) (Stein, J.) (5-2), the Court of Appeals held that because the breathalyzer test was not administered pursuant to Vehicle and Traffic Law § 1194, and the defendant’s consent to take the test was not voluntary, the results of the test were properly suppressed.

The defendant in this case was arrested on multiple charges, including operating a motor vehicle while under the influence of alcohol. More than two hours after his arrest, he was asked by police to submit to a breathalyzer test. When defendant said no, he was given “refusal warnings” as set forth in Vehicle and Traffic Law § 1194. In pertinent part, these warnings indicate that if defendant refuses to submit to breathalyzer testing, his driver’s license would be revoked, whether or not he was guilty, and his refusal would be entered into evidence against him in any trial proceedings from the arrest. Following these warnings, the defendant agreed to take the breathalyzer test.

At the threshold, the Court of Appeals held that because the breathalyzer test was not performed within two hours of the defendant’s arrest, and the requirements necessary to obtain a court order pursuant to the Vehicle and Traffic Laws were not met, the tests results were not admissible under the statutory scheme. The Court then proceeded to an analysis developed in People v. Atkins, which states that the test results may still be admissible if the defendant voluntarily consented to take the test because the two hour limitation has no application when the defendant expressly consents to the test.  At issue in this case was whether the warnings given for refusal to consent were legally accurate, and thus, whether the defendant’s consent was indeed voluntary.

The Court noted that pursuant to Vehicle and Traffic Law § 1194 (2)(f), evidence of refusal to take a breathalyzer test is admissible. There is no time limit expressly enunciated in this provision. However, the Court of Appeals focused on the language of Vehicle and Traffic Law § 1194(2)(a), because § 1194 (2)(f) refers back to this section, which authorizes the chemical test. Vehicle and Traffic Law § 1194(2)(a) provides in turn that a defendant is deemed to have given consent to a chemical breath test so long as the test is administered within two hours after such person has been placed under arrest for driving while intoxicated.

Therefore, the Court of Appeals held that “because the warnings given to defendant were at least partially inaccurate — i.e., as to the admissibility at trial of his refusal to submit to testing — the courts below properly suppressed the results of the breathalyzer test on the ground that defendant’s consent to take the test was involuntary.”

Chief Judge DiFiore dissented because she believed that the only holding consistent with precedent, the purpose of the statute, and the record before the court is that the statutory two-hour rule has no applicability to the refusal warnings provided to a motorist who consents to a breath test. (JC/LC)

Back in Business

After an almost seven year hiatus, the New York Criminal Law and Procedure Blog is back in business.  After becoming Associate Dean for Student Services, I took time off from blogging to focus on my “day job.”  A lot has happened since.  I went on to become Associate Academic Dean and, later, Vice Dean, where I was responsible for supervising nearly all of the “internal” operations of our school. I also got married and moved out to the wonderful community of Long Beach, NY. I recently stepped down from day-to-day administration, although I remain the Associate Dean for Assessment and Institutional Effectiveness and am the director of our Center for Trial and Appellate Advocacy.  Helping me with the blog are the Fellows of the Center.

The blog has a new look.  I’ve migrated it to WordPress (from TypePad).  The CTAA Fellows and I hope to post a few times a week on new cases, legislation, and news reports.  As always, I appreciate your feedback at  (LC)


In April, I was appointed Associate Dean for Student Services and given an important charge to develop a new, proactive, inclusive approach to career development. Unfortunately, the demands of this position have not left me with much time to devote to the blog. I am going to be taking a hiatus from posting for a while, so that I can devote my energy and time on career development projects. The blog’s archives will remain live, however. (LC)

New York Criminal Law in the News – Thursday, October, 27, 2011

  • Three likely Democratic Mayoral candidates boast they have been arrested for civil disobedience (New York Times)
  • At his fourth trial a man was found guilty for a 1996 double homicide (New York Law Journal)
  • One of the detectives in the Sean Bell shooting testified at his hearing (NY1)
  • A Long Island man was arrested after he punched his infant after he wouldn't stop crying (Newsday)
  • Some Staten Island residents who are frustrated with recent burglaries are preparing to arm themselves (Staten Island Advance)
  • Auto body shop helps police capture hit and run suspect (Buffalo News)
  • Upstate man shot in home invasion is recovering at the hospital (Democrat and Chronicle)
  • Police made more arrests in the fatal shooting that cost a mother of 13 her life (New York Post)
  • A 16-year-old was arrested and charged with burglarizing two homes (Syracuse)