New York Identity Theft Defense Lawyers

Start with the exact charge, the alleged identity and the records.

New York identity-theft cases are not all the same. The prosecution may allege that someone assumed another person’s identity, possessed particular identifying information for criminal use, used a skimmer device, committed a related theft or fraud offense, or violated a separate federal statute. The complaint or indictment and its cited subdivisions determine what must be proved.

If investigators, a bank, an employer or an agency have contacted you, preserve the request and the underlying records. Keep the charging papers, warrants, property vouchers, account notices, messages and complete device or transaction records. Do not delete files, alter an account, contact an alleged victim to negotiate privately or give a substantive explanation before discussing the request with counsel.

Lebedin Kofman LLP defends fraud and identity-related allegations in New York City and Long Island. Call 646 663 4430 for an urgent inquiry, or request a free consultation. Urgent inquiries are available around the clock.

What New York identity theft requires.

Penal Law § 190.77 defines personal identifying information broadly. It includes information such as a name, address, date of birth, Social Security number, account or card number, password, electronic signature, biometric information, telephone identifier, medical information and health-insurance information. The existence of that information does not by itself establish identity theft.

Under § 190.78, a person commits identity theft in the third degree when, knowingly and with intent to defraud, the person assumes another natural person’s identity by presenting as that person, acting as that person or using that person’s personal identifying information and thereby reaches one of the statutory results. Those results include obtaining goods, money, property, services or credit; causing financial loss; or committing a class A misdemeanor or more serious offense.

The knowledge, intent, identity and resulting consequence are separate issues. A shared account, authorized access, mistaken data entry or possession of information does not automatically prove a knowing assumption of identity with intent to defraud. Conversely, the prosecution need not rely only on a forged physical card; the definition covers many forms of information and electronic use.

The three degrees use different thresholds and aggravating facts.

The word “aggregate” matters when the prosecution combines transactions. The source, timing and relationship among the alleged transactions should be tested rather than assuming every disputed charge belongs in one total. A qualifying prior-conviction route also requires examination of the actual prior judgment and the statutory lookback period.

Section 190.80-a creates aggravated identity theft. It applies when the statute’s identity-assumption and intent requirements are met, the person knows the individual is a member of the armed forces presently deployed outside the continental United States, and the conduct produces more than $500 in value or financial loss. It is a separate class D felony; ordinary identity theft is not aggravated merely because a service member is involved.

Identity theft is different from unlawful possession of identification.

Identity theft focuses on assuming another natural person’s identity and achieving a specified result. The unlawful-possession statutes focus on knowingly possessing particular categories of identifying information while knowing that the information is intended for use in furtherance of a crime under New York’s Penal Law. The prosecution still must prove the statutory knowledge; mere proximity to a device or record is not the complete offense.

Section 190.81 makes third-degree unlawful possession a class A misdemeanor. It concerns specifically listed information, including an account number or code, password, electronic signature or biometric information. Section 190.82 makes the offense second-degree, a class E felony, when the person possesses 250 or more items of that listed information and the required knowledge is proved.

First-degree possession under § 190.83 is a class D felony. One route requires second-degree possession, an intent to further second-degree identity theft and supervision of more than three accomplices. Another uses a qualifying conviction within five years. The armed-forces route requires an intent to further second-degree identity theft, supervision of more than two accomplices, and knowledge that the owner of the information is a service member presently deployed outside the continental United States. “More than” cannot be replaced with “at least” without changing the threshold.

Section 190.84 provides narrow affirmative defenses when the identifying information was used or possessed solely for specified age-related purposes: an under-21 alcohol purchase, an under-18 tobacco purchase, or misrepresenting age to enter an age-restricted place. These defenses do not create general permission to use another person’s information.

Skimmer-device charges have their own elements.

A skimmer allegation should not be collapsed into an identity-theft charge. Under Penal Law § 190.85, second-degree unlawful possession of a skimmer device requires possession with intent that the device be used to further identity theft or unlawful possession of personal identification. It is a class A misdemeanor. Under § 190.86, a qualifying conviction within five years raises the offense to first degree, a class E felony.

The physical item, its technical capability, who possessed it, the surrounding communications and the alleged intended use all require proof. A device’s presence at a location does not by itself answer who knowingly possessed it or what that person intended.

New York and federal identity offenses are not interchangeable.

Federal law can apply in some investigations, but two statutes commonly mentioned online should not be combined. 18 U.S.C. § 1028A addresses aggravated identity theft during and in relation to specified federal felonies. It generally requires an additional two-year prison term, with a five-year term for the terrorism provision, and contains rules governing consecutive sentences.

Section 1028 is a separate statute covering specified conduct involving identification documents, authentication features and means of identification. Its penalty provisions vary with the prohibited act and circumstances; the fact that one route can carry a maximum of fifteen years does not make fifteen years the penalty for every federal identity case and does not describe § 1028A’s mandatory additional term.

A federal case may also include wire fraud, bank fraud, access-device, conspiracy or other counts. The charging instrument, alleged predicate felony, interstate or federal connection and district determine the actual issues. See the firm’s federal criminal defense practice and white-collar defense practice.

Sentencing requires more than reading the felony letter.

For a class A misdemeanor, Penal Law § 70.15 sets a maximum definite jail term of 364 days, not one year. Under the ordinary felony framework in § 70.00, the maximum indeterminate term is four years for a class E felony and seven years for a class D felony. That does not mean a first-time defendant automatically receives a one-to-four-year sentence, and it does not predict an outcome.

The sentence depends on the conviction, prior record, concurrent or consecutive treatment of counts, negotiated disposition and any special state or federal rule. Eligible D or E felony cases can have alternatives not captured by a maximum-term chart. Related larceny, forgery, falsifying-records or possession counts may carry different exposure.

Restitution can be significant. Penal Law § 60.27 directs courts to consider restitution or reparation and specifically addresses losses caused by identity theft and specified unlawful-possession offenses, including qualifying costs or losses from adverse action taken against the victim. The amount and causal connection may be contested and, when required, addressed at a hearing.

Digital and financial evidence should be reviewed at the source.

Identity cases may be built from bank and merchant records, device extractions, IP or login records, application data, surveillance video, delivery information, handwriting or signature evidence, emails, texts and statements. A record associated with an account is not always proof of who performed a transaction. Attribution should be tested against access, timestamps, shared devices, authentication logs and the complete transaction history.

Criminal Procedure Law § 245.20 covers automatic discovery, including statements, electronic recordings, scientific reports, tangible objects, search-warrant materials and electronically created or stored information within the prosecution’s obligations. The defense should track what was collected, what was produced, how data was filtered and whether the source material supports the summary in a report.

• Identity and access: Who controlled the account, device, email address, phone number, location or payment method at the relevant time?
• Authorization: Was access authorized, shared, revoked, misunderstood or exceeded, and what contemporaneous records bear on that question?
• Intent: Do the complete communications and transaction sequence prove intent to defraud, or do they support a different explanation?
• Value and loss: Which transactions count, were charges reversed, and does the evidence support the alleged statutory aggregate?
• Collection and reliability: Was evidence preserved, extracted, attributed and authenticated accurately, and are material records missing?

Defense and suppression issues depend on the evidence.

Possible issues include mistaken identity, lack of knowing possession, lack of intent to defraud, authorized use, failure to prove a statutory result or threshold, unreliable attribution, an inapplicable prior conviction and the affirmative defenses in § 190.84. An explanation is not a defense merely because it is possible; it should be tested against records, witnesses and the elements of the exact count.

Searches of a phone, computer, residence, workplace, vehicle, cloud account or financial records may require analysis of the warrant, consent, scope and collection method. Statements and identification procedures may raise separate issues. New York’s suppression-motion statute, CPL § 710.20, identifies categories of evidence a defendant may move to suppress on supported grounds. Suppressing one item does not automatically end every charge.

Preserve originals and let counsel decide whether forensic review or an expert is appropriate. Do not reset a device, run cleanup software, move data between accounts or ask another person to change a record. Those actions can destroy useful context and create additional problems.

What to do after an investigation request or arrest.

1. Keep every page of the request, complaint, indictment, warrant, property voucher, release condition and court notice.
2. Identify response dates and the next court appearance. Do not assume an informal conversation pauses a deadline.
3. Preserve devices, accounts and complete records without editing or deleting them.
4. Write a private chronology for counsel and identify who had authorized access to the relevant systems or information.
5. Discuss police, prosecutor, bank, employer or agency contact with counsel before giving a substantive response.

Lebedin Kofman LLP meets clients through its Manhattan and Lynbrook offices. The court or agency handling the matter depends on the papers, not the consultation office. Bring the exact charge, county or federal district, custody status and nearest deadline to the first call. Related guidance includes grand larceny defense, insurance-fraud defense and falsifying-business-records defense.