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Credit Card Theft & Fraud in New York: Does the NY Penal Law Require Possession of Actual Credit Card to Establish Felony Grand Larceny or Criminal Possession of Stolen Property

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?

In the state of New York government prosecutors are required to prove all the elements of a charged crime beyond a reasonable doubt (who woulda’ thought!?). In the Matter of Luis C the Second Department Supreme Court: Appellate Division ruled that a conviction of Grand Larceny in the Fourth Degree and Criminal Possession of Stolen Property could not be sustained when the defendant never physically possessed a credit card. In Luis C the defendant, a juvenile, used his grandfather’s debit card number to purchase a pair of $150.00 shoes online. The defendant’s grandfather never gave him permission to use the debit card and only found out about this purchase when he went to the store and had his debit card declined for insufficient funds. The defendant in this case admitted that he used the debit card number to pay for the sneakers. However, there was no evidence that the defendant ever actually possessed the debit card.  This case is important because it represents a departure from prior case law.

The Court in Luis C held that Penal Law 155.30(4) (Grand larceny in the Fourth degree) and Penal Law 165.45(2) (Criminal Possession of Stolen Property in the Fourth degree) “only proscribe the theft and possession, respectively, of the physical card, not merely the numbers assigned to it.”  In order to arrive at this holding the Court examined the definitions present in the Penal Law and General Business Law 511[1], [9], and the Court carefully reviewed the legislative intent behind both statutes. Typically the theft of a credit card or debit card serves as an automatic enhancement in the classification of certain larceny and possession crimes. The reason for the automatic enhancement is that it is difficult to set a value on a physical credit card. The card itself is fairly inexpensive but the information that is held on the card is valuable. The legislature fixed the valuation problem by making the theft of a credit card a completed felony upon the initial taking of the card.

There is neither need to prove that an alleged thief used the credit card nor any need to prove the value of the card. Again, the possession of the credit or debit card is enough warrant the felony enhancement in New York State. In 1988 this standard was applied to debit cards as well. According to the Court, this enhancement can only be used when the card is physically taken not when the account information is the only thing stolen. The Court reasoned that there are other statutes that govern the theft of debit card numbers and credit card numbers. Specifically, these New York Identity Theft crimes (New York Penal Law 190.78, 190.79, and 190.80) range from an “A” misdemeanor to a “D” felony.

It is worth (and actually critical) to note that the Second Department’s decision in Matter of Luis C declined to follow the holding of the First Department in People v. Barden. In Barden the First Department upheld a conviction for Criminal Possession of Stolen Property in the Fourth Degree (NY PL 165.45(2)), when the defendant used credit card information on file with a hotel without the account holder’s authorization.

Obviously the laws surrounding felony credit card fraud are as serious as they are confusing. While possession of the debit card or credit card itself is definitely a felony, the same is not as clear for the numbers and account information. Arguably, it may not make that much of a difference as one’s exposure to a wrongful usage of a credit card may involve a New York Identify Theft crime and a heftier felony sentence of up to seven years. Regardless, educate yourself on the law should you face any of these offense.

To learn more about New York Grand Larceny, Criminal Possession of Stolen Property or Identity Theft crimes, review this blog, the NewYorkCriminalLawyerBlog, and follow any of the links above and below.

Saland Law PC is a New York criminal defense firm located in New York City. Representing clients through the New York City and suburban region, the New York criminal lawyers and partners at Saland Law PC collectively served as Manhattan and Federal prosecutors prior to representing the accused.

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