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May 29, 2014

The New York Court Of Appeals Leaves Ambiguity In What Gain Is Required

By Michael H. Joseph

With identity theft becoming an increasingly common occurrence, and a steadily increasing number of prosecutions for this crime occurring in New York, the law continues to be in a state of flux as to what benefit is required for a person to be convicted of this crime. Our White Plains criminal defense attorneys and New York criminal defense lawyers are seeing an increase in the prosecution of these types of crimes. The crime of criminal impersonation as defined by New York’s Penal Law § 190.25 is committed when a person impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another. Another common crime which is often charged along with criminal impersonation is identity theft in the second degree. Identity theft in the second degree, as defined by New York Penal Law § 190.79 (3) occurs when a 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. One big difference between the two is the identity theft in the second degree requires an actual or attempted felony, whereas, criminal impersonation only requires a benefit to the actor or injury to another.

While there are certain obvious examples of a benefit, such as obtaining money or property, like in the case of applying for a credit card and obtaining goods, there are less obvious scenarios where prosecutions are being pursued. The majority of the criminal impersonation prosecutions have involved monetary fraud or interference with government operations such as impersonation of a governmental employee, or impersonation to obtain a personal benefit, such as impersonating a victim and telling authorities that they want to drop the charges. Other examples include using a family member’s name or social security number to apply for a loan or in the case of undocumented aliens using a family member’s identification to get employment that they were lawfully forbidden from obtaining (borrowing papers).

In a recent case, the Court of Appeals held that the terms injury and defraud are not limited to tangible harms such as financial harms which involve the filing of a false instrument. The Court recognized that if the fraud impacts the State’s power to fulfill its governmental responsibilities that is sufficient. But the Court also cautioned that the terms “injure” and “benefit” cannot be construed to apply to any injury or benefit, no matter how slight, but that an injury to reputation is within the “injury” as defined by Penal Law § 190.25. For many people, such as professionals, celebrities and those with academic careers the value of their reputations is often equivalent to a property interest. The Court of Appeals went on to recognize that the Legislature intended that the law’s scope be broad enough to capture acts intended to cause injury to reputation. Therefore, under this interpretation, a criminal defendant can be convicted of criminal impersonation in the second degree if they impersonates another with the intent to cause a tangible, pecuniary injury to another, including injury to a professional reputation or with the intent to interfere with governmental operations.

 
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