By now everyone who provided a credit card to Ashley Madison, a real name or an address knows that hackers have exposed their personal information. Sure, what the hackers did was wrong and illegal, but there is little to nothing anyone one of us can do about that. Instead, the issue is now how do you protect yourself from would be fraudsters and criminals who have sifted through the information posted online? What if one of these individuals contacts you? Demands money? Threatens you? Is there any recourse? What, if any, crimes have been committed? Does it matter that the information is arguably public since it has been posted? This blog entry will attempt to answer some of these questions from the perspective of the New York Penal Law. Federal violations will be discussed at a later time.
Petit Larceny, New York Penal Law 155.25, is one of the most common theft crimes charged in New York, prosecuted by Assistant District Attorneys, and defended by New York criminal lawyers. Like its sister offense of Criminal Possession of Stolen Property in the Fifth Degree, New York Penal Law 165.40, this misdemeanor “shoplifting” crime is one that prosecutors can very easily draft in an accusatory instrument (called a criminal court complaint or information). In fact, in New York City’s boroughs of Manhattan, Brooklyn and Queens, there is fairly boilerplate language that is found in most complaints. Of grave concern to criminal defense attorneys, however, is whether or not the boilerplate language that is plugged into these complaints is legally sufficient and not conlusory (are there enough factual allegations and not mere conclusory statements). Whether an accused finds himself or herself before a judge during an arraignment by way of Desk Appearance Ticket (commonly called a DAT or Appearance Ticket) or after spending 24 hours in the infamous Tombs should the information be legally insufficient an attorney can file a motion for dismissal.
Embezzlement cases in New York are often some of the most difficult crimes to defend for Grand Larceny lawyers and Embezzlement defense attorneys. Yes, every case is different, but Grand Larceny by Embezzlement often involves a “smoking gun” of a paper trail. In these cases, money is transferred out of an employer’s account and into the account of an accused. As a New York City and greater New York criminal defense attorney, it no longer surprises me to see people make these boneheaded and easily traceable transactions. Even worse, from a criminal defense perspective, as much as an accused may want to apologize for the infraction, admitting the indiscretion to the police, a detective or employer makes any criminal case that much stronger. From a personal and “human” side, we can all understand that people make mistakes and making a victim whole is what we should endeavor to do, but when you are accused of a crime you should always think things through before making any statement to any party.
No matter how long your criminal defense lawyer or criminal defense attorney has practiced in the courts of New York, every criminal trial he or she faces is unique and can have complex legal issues. During a criminal trial a defendant may be charged with multiple crimes and the jury may find the defendants guilty of, all, none or an assortment of crimes charges but not all of them. After the verdict is issued, a criminal defense attorney can argue that the verdict should be overturned for various reasons. Two potential ways your criminal lawyer can challenge a verdict is if the verdict is legally repugnant or legally insufficient.
A jury verdict is legally repugnant if the verdict is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury. The repugnancy claim can be a useful legal tool when the jury verdict is inconsistent with the elements of the crime and should be used to overturn inherently inconsistent verdicts. People v. Forde illuminates some of the issues that can arise when a legal repugnancy or a legal sufficiency claim is made.
Crimes involving the theft and wrongful use of credit cards and debit cards are the types of offenses that seem to escalate each year. Certainly, the ease by which one can steal or use a stolen credit card is undeniable. While many times it is one’s intent to steal a credit or debit card, it is not atypical for an alleged thief to be arrested for stealing a wallet, purse or pocket book and he or she is not only charged with a misdemeanor, but a felony as well. The reason for this is because in the State of New York from New York City (NYC) to the suburbs of Westchester County and well beyond, it is a violation of New York Penal Law 155.30(4), Fourth Degree Grand Larceny, New York Penal Law 165.45(2), Fourth Degree Criminal Possession of Stolen Property, to merely steal or possess a stolen credit card. You need not know that when you took a person’s bag from a bar in Manhattan or hotel in Brooklyn that the bag contained a credit card. Punishable by up to four years in prison, any criminal lawyer or larceny defense attorney will certainly explain that the consequences are grave upon arrest or conviction of PL 155.30 or PL 165.45.
With the brief fundamentals behind us, in the eyes of the law, does it make a difference if you possess the actual credit card as opposed to merely using the numbers for the account? In other words, for a judge or jury to find you guilty of a credit card or debit card crime as set forth in Grand Larceny in the Fourth Degree or Criminal Possession of the Fourth Degree, must you actually possess or steal that card?
Every element of every crime is equally important. Irrespective of the charge you face, prosecutors in New York City, Westchester County or anywhere else in the State of New York must prove each element beyond a reasonable doubt. This is no different if you you are charged with Grand Larceny as codified in Article 150 of the New York Penal Law or a violent offense of Assault as codified in Article 120 of the New York Penal Law. Addressing the former offense of Grand Larceny, one of the elements that an Assistant District Attorney must prove to a jury or a judge at trial is that the value of the alleged property you allegedly stole exceeds either $1,000.00, $3,000.00, $50,000.00 or $1,000,000.00. Simply, value is an essential element of any Grand Larceny crime that your criminal lawyer or criminal defense attorney will vigorously challenge. If a judge or jury agrees with you, as opposed to the prosecutor, then either the trial will end in an acquittal or a conviction for a lesser criminal offense. Where a case involves cash or money, your attorney’s task may be quite difficult, but how is value assessed (or challenged) when the value of the property in question is not easily quantified?
It certainly is not used in the everyday lingo of a non-lawyer and rarely used by those who are practicing attorneys, but asportation is a term that a New York criminal defense attorney or New York theft lawyer should be keenly aware of. More specifically, the importance of this term to a New York shoplifting defense attorney and an accused shoplifter cannot be understated. After all, if you are convicted of Petit Larceny (NY PL 155.25), this misdemeanor crime could land you in jail for up to one year whether the theft involved a $1 pack of gum or two pairs of Cole Haan shoes valued at $500.00 each. This blog entry will focus on asportation and its relevance to any shoplifting or related theft or larceny case in New York.
Whenever you get contacted by an investigator from the New York City Human Resources Administration (“HRA“), its is certainly an acceptable response to be concerned that you are or have been a subject of a potential criminal investigation. Maybe the Bureau of Fraud Investigation or another internal agency of the NYC HRA believes you lied or misrepresented your financial resources or employment when you obtained medical or other benefits. Maybe their is evidence of some other supposed wrongdoing. If accurate and correct, your conduct may have been willful. However, your actions may also may been the result of an honest mistake. Whatever reason the HRA is contacting you by phone or letter, its is critically important to understand your potential exposure and to learn how to protect yourself before you admit to any fraudulent act that can not only compound your situation in terms restitution, but also lead to a criminal prosecution by a District Attorney’s Office.
As a New York criminal attorneys who regularly defends clients against arrest, indictments, investigations and general allegations of theft and fraud, the most difficult cases we encounter are those that are supported by strong evidence of guilt (a/k/a potential proof beyond a reasonable doubt). For example, in a New York Grand Larceny by Embezzlement, a “paper” trail may lead directly to a client’s footsteps. If a crime was perpetrated on a computer, search warrants may reveal emails, log in information and even deleted files supporting the District Attorney’s Criminal Possession of Stolen Property or Forgery indictment. Whatever the crime and whatever the allegation, when evidence is overwhelming from a legal and factual standpoint, the mitigation defense is often the next weapon in your criminal lawyer’s arsenal. The following case result where our client was charged with the felonies of Scheme to Defraud in the First Degree (New York Penal Law 190.65), Grand Larceny in the Third Degree (New York Penal Law 155.35) and Grand Larceny in the Fourth Degree (New York Penal Law 155.30) demonstrates how effective the mitigation defense may be to avoid incarceration or a felony conviction.
It’s fairly irrelevant what you call it. Credit Card Fraud, Debit Card Fraud, Credit Card Theft, Debit Card Theft, Identity Theft…the fraudulent obtaining and use of credit card numbers and accounts is so drastic and commonplace, that barring the dollar amount hitting the tens of millions or more, this type of criminal activity is arguably becoming routine (are you listening Target?!). Most New York criminal lawyers would acknowledge that if you possess a stolen credit card or stolen debit card, you could very well face an arrest or indictment for Criminal Possession of Stolen Property in the Fourth Degree (New York Penal Law 165.45). Further, any competent New York criminal defense attorney recognizes that the theft of a physical credit card is chargeable as Grand Larceny in the Fourth Degree (New York Penal Law 155.30). The question that is an interesting one is what if the accused is smart enough not to possess the actual credit card or debit card? What if he or she merely possesses the account numbers? Simply, if you only possess credit card account numbers (or debit card), are you guilty of either Fourth Degree Grand Larceny (NY PL 155.30) or Fourth Degree Criminal Possession of Stolen Property (NY PL 165.45)?
As “luck” would have it, People v. Bodner, #2012-486, NYLJ 1202639616673, at *1 (Sup., RO, Decided January 15, 2014), addresses the exact issue discussed above. That is, if you merely possess a debit card number or credit card number (or steal the same), is your conduct the same in the eyes of the law whereby you can be arrested for Grand Larceny in the Fourth Degree or Criminal Possession of Stolen Property in the Fourth Degree as if you actually possessed the plastic itself?