Identity Theft Defense Under PL 190.78 through 190.80

New York prosecutes identity theft under three graded statutes: Penal Law § 190.78, § 190.79, and § 190.80. The degree charged depends on the dollar amounts involved, the crimes allegedly committed using someone else's identity, and the defendant's prior record. A case that starts as a misdemeanor accusation over a few hundred dollars can become a felony indictment once prosecutors aggregate transactions or add related counts. If you have been arrested, received a desk appearance ticket, or learned that detectives want to speak with you about a fraud investigation, you should retain counsel before you say anything.

What the Statutes Require the Prosecution to Prove

Each degree of identity theft shares a common core. The prosecution must prove that you knowingly, and with intent to defraud, assumed the identity of another person. Under the statutes, a person assumes another's identity by presenting himself or herself as that person, by acting as that person, or by using that person's personal identifying information. Penal Law § 190.77 defines personal identifying information broadly: names, Social Security numbers, bank account and credit card numbers, PINs, electronic signatures, mother's maiden name, and similar data.

Assuming the identity is not enough on its own. The statute also requires a result. Depending on the degree, the prosecution must show that you obtained goods, money, property, or services, used credit in the other person's name, caused financial loss to that person or a third party, or committed another crime while acting under the assumed identity.

The Three Degrees and Their Penalties

Identity Theft in the Third Degree — PL 190.78

The base offense is a class A misdemeanor, punishable by up to 364 days in jail, three years of probation, and fines. It applies where a person assumes another's identity and obtains any goods, money, property, or services, uses credit in the other person's name, causes any financial loss, or commits a class A misdemeanor or higher offense under the assumed identity. There is no minimum dollar threshold. Using a roommate's debit card once for a $40 purchase can support this charge.

Identity Theft in the Second Degree — PL 190.79

The second degree offense is a class E felony, punishable by up to four years in prison. Probation and conditional discharges remain available for first offenders. The charge applies where the goods, services, or credit obtained exceed $500 in the aggregate, where the financial loss caused exceeds $500 in the aggregate, where the defendant commits or attempts a felony under the assumed identity, or where the defendant has a conviction within the previous five years for identity theft or certain related fraud offenses.

The aggregation language matters. Three separate swipes of a stolen credit card for $180 each total $540, which lifts a misdemeanor into felony territory even though no single transaction exceeded $500.

Identity Theft in the First Degree — PL 190.80

The first degree offense is a class D felony, punishable by up to seven years in prison. It applies where the aggregate amount obtained or the loss caused exceeds $2,000, where the defendant commits or attempts a class D felony or higher under the assumed identity, or where the defendant has a qualifying prior conviction. Opening a fraudulent line of credit and drawing $2,500 against it satisfies the threshold, as does using stolen identification to commit a class D grand larceny.

Aggravated Identity Theft — PL 190.80-a

A separate class D felony applies where the alleged victim is a member of the armed forces deployed outside the continental United States and the amount obtained or the loss caused exceeds $500 in the aggregate.

Charges That Travel With Identity Theft

Prosecutors rarely charge identity theft alone. Common companion counts include:

• Unlawful possession of personal identification information (PL 190.81–190.83): possessing another person's identifying data with intent to further a crime, ranging from a class A misdemeanor to a class D felony.
• Grand larceny (PL Article 155): where the value taken exceeds $1,000.
• Forgery and criminal possession of a forged instrument (PL Article 170): for signed documents, checks, and fabricated cards.
• Criminal possession of stolen property (PL Article 165): a stolen credit card, regardless of its balance, supports a class E felony count on its own.
• Scheme to defraud (PL 190.60, 190.65): where prosecutors allege a pattern involving multiple victims.

Identity theft allegations also surface in public benefits investigations, where an agency claims that benefits were obtained under another person's information or that household identity information was misreported. Those cases carry both recoupment and criminal exposure, and our benefits recoupment defense practice handles them from both angles.

Venue: You Can Be Prosecuted Where the Victim Lives

CPL 20.40(4)(l) gives identity theft cases an unusual venue rule. The case may be prosecuted in the county where the alleged victim resides, even if every act attributed to the defendant occurred elsewhere in the state. A person accused of using a Manhattan resident's card data can face charges in New York County despite never setting foot there. This rule shapes plea negotiations and trial strategy, and it sometimes gives the defense grounds to challenge venue where the connection is thin.

Deadlines and Procedure After Arrest

Several deadlines run from the moment of arraignment:

• CPL 180.80: If you are held in custody on a felony complaint, the prosecution must obtain an indictment or conduct a preliminary hearing within 120 hours (144 hours if a weekend or holiday intervenes), or the court must release you.
• CPL 190.50(5)(a): You have the right to testify before the grand jury if you serve written notice. In document-driven fraud cases, a well-prepared grand jury appearance can result in a dismissal or a reduced charge, but it carries risk and requires preparation.
• CPL Article 245: The prosecution must disclose its evidence on a statutory schedule, including bank records, surveillance footage, IP logs, and subpoenaed account data. Late or incomplete disclosure affects the speedy trial clock.
• CPL 30.30: The prosecution must be ready for trial within six months on a felony and 90 days on a class A misdemeanor, subject to excludable time. Identity theft cases often depend on slow-arriving records from banks and card processors, and 30.30 motions have force in these prosecutions.

Courts can also order restitution under PL 60.27, which becomes a central negotiating point where the complainant's primary interest is repayment.

Defenses We Raise

• Intent to defraud: The statute requires fraudulent intent. Authorized use of a family member's card, a genuine belief in permission, or a shared-account dispute between former partners negates the required mental state.
• Identity of the user: Digital evidence identifies a device or an account, not a person. Shared computers, spoofed IP addresses, compromised accounts, and household access all create reasonable doubt about who actually conducted the transactions.
• Valuation and aggregation: The line between misdemeanor and felony often rests on whether transactions were properly aggregated and valued. Attacking the math can knock a felony down to PL 190.78.
• Suppression: Statements taken in violation of Miranda, or searches of phones and computers conducted without a valid warrant, can be suppressed and take the core of the case with them.

Collateral Consequences

Identity theft is a crime of dishonesty. A conviction affects employment in banking and finance, security clearances, immigration status, and any position of trust. Licensed professionals face mandatory reporting duties and disciplinary exposure before their licensing boards, which we address through our professional license defense practice. Resolving the criminal case without a fraud conviction is often the single most important step in protecting a license or a career.

You can contact the Law Offices of Albert Goodwin by phone at 212-233-1233 or by email at [email protected].