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Identity Theft Crimes: Is it Criminal to Possess a Credit Card Number without the Actual Credit Card

Identity Theft is an issue that affects more and more people in New York and the country every year. In this digital age, criminal charges relating to Identity Theft can become extremely complex and difficult to analyze. For example, can a person unlawfully “possess” someone’s credit card number without actually possessing the card itself? Is a person unlawfully assuming another person’s identity when they use a stolen credit card number? In New York, the answer to these questions was given in People v. Barden, 117 A.D.3d 216 (1st Dept. 2014) as “yes” and “no” respectively.

In Barden, the defendant was working with another businessman in a venture. On multiple occasions, the other businessman paid for the defendant to stay in hotels as part of the venture by supplying his credit card information to the hotels and giving them permission to charge the card, with certain spending limits. On one such occasion, the business associate agreed to pay for the defendant to stay at a Manhattan hotel for five days with an expense limit of $2,300. As a result, the business associate’s credit card information became linked with the defendant on the hotel’s computer system, and remained associated with the defendant even after that particular hotel stay. The defendant allegedly stayed at the hotel on subsequent occasions, billing the business associate’s credit card without his permission and even after their business relationship ended. Unauthorized charges eventually exceeded $10,000. The defendant continued to rack up charges with the hotel which eventually exceeded $50,000. After a jury trial, the defendant was convicted of Identity Theft in the First Degree, Criminal Possession of Stolen Property in the Fourth Degree, and lesser charges. He was sentenced to concurrent terms of 2 1/3 years to 7 years for Identity Theft, 1 1/3 to 4 years for Criminal Possession of Stolen Property.

The most critical issue raised by this case, especially in the modern era, is whether and how a person can “possess” stolen intangible property, such as a credit card number (not the card itself). The answer to this questions affects so much of how laws are enforced and how we interact with each other in this digital age. In the context of this case, it is relevant to both the Identity Theft and Criminal Possession of Stolen Property counts. The Court in Barden ultimately decided that yes, you can possess intangible property unlawfully in circumstances such as this. It is important to note that in Barden, the defendant never actually knew the credit card number. He only had access and use of it due to the hotel’s mistaken linking of that credit card number to the defendant’s account. Nevertheless, the Court held that this was sufficient to sustain a guilty verdict on these charges. The implications of this are obviously far-reaching. Anyone with use or access to to a credit card or other payment account online, say for an employer, must be vigilant in ensuring that they have permission for each and every transaction they make using that account, or risk prosecution for theft-related charges.

In answer the the second questions posed above, the Court in Barden held that it is not enough that a person used another’s credit card number unlawfully to establish that they were assuming that person’s identity. The intent to assume another’s identity is a critical element of the Identity Theft statute under the New York State Penal Law. Without proof of that intent, a prosecution for that crime cannot stand. The Court in Barden reasoned that the defendant, in this particular case, never demonstrated any intent to mislead or deceive anyone into believing that he was, in fact, this business associate. If the defendant had forged a signature and submitted a fake form authorizing further use of the credit card, the answer might be different. But here, the defendant never made such a representation, and instead continued to use the credit card number under the pretense that he had permission from the card-owner, not that that he was in fact the card-owner.

This last point is perhaps the most critical point with respect the necessity of having an experienced and knowledgeable criminal defense lawyer on such a case. It is easy for a prosecutor, a juror or a judge to conflate the ideas of using someone else’s credit card number or identifying information, and actually purporting to be that person. Understanding this difference, and being aware of the nuances of this criminal charge, is essential to a successful defense.

To learn more about New York Identity Theft crimes and other related offenses, follow the links found within this blog and at Saland Law PC is a New York criminal defense firm that represents Identity Theft and Criminal Possession of Stolen Property defendants in New York City and throughout Westchester, Rockland, Putnam, Dutchess and Orange Counties. Founded by two former Manhattan prosecutors, the New York criminal lawyers at Saland Law PC serve clients in all theft crime allegations.

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