Unlawful Possession of a Skimmer Device

Most states have legislation criminalizing the unlawful possession of a skimmer device. In New York, there are two criminal charges for Unlawful Possession of a Skimmer Device. Specifically, they are:

With the prevalence of credit card fraud, New York prosecutors now more than ever prosecute Unlawful Possession of Skimmer Device charges.

What is a Skimmer Device?

A skimmer device is a reader that is designed to obtain personal identifying information from a debit card or a credit card. Frequently, a skimmer device is surreptitiously installed over the face of the ATM or a legitimate point-of-sale card reader, and captures the magnetic strip of a credit card or a debit card as it is swiped.

Under New York Penal Law Section 190.85(2), a skimmer device as “a device designed or adapted to obtain personal identifying information from a credit card, debit card, public benefit card, access card or device, or other card or device that contains personal identifying information.”

Unlawful Possession of a Skimmer Device in the Second Degree

Under New York Penal Law Section 190.85(1), a person is guilty of Unlawful Possession of a Skimmer Device in the Second Degree when:

  1. S/he possesses a skimmer device,
  2. With the intent that such device be used in furtherance of the commission of the crime of identity theft or unlawful possession of personal identification information as defined in Section 190 of the New York Penal Law.

Penalties and Sentencing for Unlawful Possession of a Skimmer Device in the Second Degree

Unlawful Possession of a Skimmer Device in the Second Degree is a Class “A” misdemeanor. As such, this charge is punishable by:

  • Up to 1 year in prison;
  • Time served (even if time served is minimal);
  • Conditional Discharge (with conditions set by the court such as payment of a fine or completion of community service);
  • Unconditional Discharge (no conditions set by the court); OR
  • Probation.

Unlawful Possession of a Skimmer Device in the First Degree 

The charge of Unlawful Possession of a Skimmer Device in the First Degree is codified in New York Penal Law Section 190.86. Under New York Penal Law Section 190.86, a person is guilty of Unlawful Possession of a Skimmer Device in the First Degree when he or she:

  1. Commits the crime of Unlawful Possession of a Skimmer Device in the Second Degree AND
  2. Has been previously convicted within the last 5 years of any of these designated offenses:
    1. Identity Theft in the Third Degree (Penal Law Section 190.78),
    2. Identity Theft in the Second Degree (Penal Law Section 190.79),
    3. Identity Theft in the First Degree (Penal Law Section 190.80),
    4. Unlawful Possession of Personal Identification Information in the Third Degree (Penal Law Section 190.81),
    5. Unlawful Possession of Personal Identification Information in the Second Degree (Penal Law Section 190.82),
    6. Unlawful Possession of Personal Identification Information in the First Degree (Penal Law Section 190.83),
    7. Unlawful Possession of a Skimmer Device in the Second Degree (Penal Law Section 190.85),
    8. Unlawful Possession of a Skimmer Device in the First Degree as (Penal Law Section 190.86)
    9. Grand Larceny in the Fourth Degree (Penal Law Section 155.30),
    10. Grand Larceny in the Third Degree (Penal Law Section 155.35),
    11. Grand Larceny in the Second Degree (Penal Law Section 155.40) OR
    12. Grand Larceny in the First Degree (Penal Law Section 155.42).

Penalties and Sentencing for Unlawful Possession of a Skimmer Device in the First Degree

Unlawful Possession of a Skimmer Device in the First Degree is a Class “E” Non-violent Felony. As such, this charge is punishable by:

  • An indeterminate sentence of up to 1 1/3 to 4 years in prison;
  • A determinate sentence of 1 year jail or less;
  • A conditional discharge (with the conditions set by the sentencing judge);
  • An unconditional discharge (no conditions imposed by the court); OR
  • Probation.

Frequently Asked Questions about Unlawful Possession of a Skimmer Device

What is the Statute of Limitations for Unlawful Possession of a Skimmer Device?

New York’s statute of limitations depends on the severity of the charge. Unlawful Possession of a Skimmer Device in the Second Degree is a Class “A” Misdemeanor and therefore has a 2 year statute of limitations. Unlawful Possession of a Skimmer Device in the First Degree is a Class “E” Non-Violent felony, and thus has a 5 year statute of limitations. Certain time periods are excluded from the computations of time for the purposes of statute of limitations. Therefore, you should consult an attorney regarding your case specifics.

Can Unlawful Possession of a Skimmer Device Charges Be Prosecuted on the Federal Level?

Yes, in addition to prosecutions under Article 190 of the New York Penal Law, there is a federal statute that applies to possession of skimmer devices. Specifically, that federal statute is 18 U.S.C. Section 1029, titled Fraud and Related Activity in Connection with Access Devices. However, the conduct that 18 U.S.C. Section 1029 criminalizes is different than the New York State statutes.

What Conduct Does 18 U.S.C. Section 1029 Prohibit?

Under 18 U.S.C. Section 1029, it is unlawful to:

  1. Knowingly and with intent to defraud produce, use or traffic one or more counterfeit access devices;
  2. Knowingly and with intent to defraud traffic or use one or more unauthorized access devices during a one year period, and obtain a benefit of over $1,000 during that time period;
  3. Knowingly and with intent to defraud possess fifteen or more devices which are counterfeit or unauthorized access devices;
  4. Knowingly and with intent to defraud produce, traffic or have control, custody, or possession of device making equipment;
  5. Knowingly and with intent to defraud effect transactions with 1 or more access devices issued to another person or persons to receive anything of value which is over $1,000;
  6. Without authorization of the issuer of the access device, knowingly and with intent to defraud solicitation of a person for the purpose of either:
    1. Offering an access device, OR
    2. Selling information regarding or an application to obtain an access device.
  7. Knowingly and with intent to defraud use, produce or traffic or have control, custody or possession of a telecommunications instrument which has been modified or altered to obtain unauthorized use of telecommunications services;
  8. Knowingly and with intent to defraud use, produce or traffic, have control, custody or possession of a scanning receiver;
  9. Knowingly and with intent to defraud use, produce or traffic, have control, custody or possession of hardware or software, with knowledge that it has been configured to insert or modify telecommunication identifying information associated with or contained in a telecommunications instrument;
  10. Without the authorization, of the credit card system member or its agent, knowingly and with intent to defraud, causes or arranges for another person to present to the member for payment, one or more evidences or records of transactions made by an access device.

What Other Crimes Are Frequently Charged With New York Unlawful Possession of a Skimmer Device?

Frequently, New York Possession of a Skimmer Device is accompanied by other Identity Theft, Fraud, or Theft crimes. Specifically, this charge is often coupled up with:

1. Petit Larceny or Grand Larceny

If the skimmer device was successfully used to capture another individual’s credit or debit card information and then unauthorized transactions were made on that card, New York’s criminal possession of a skimmer device may be accompanied by Petit Larceny or Grand Larceny charges. The severity of the charge will depend on the value of the unauthorized purchases. Value under $1,000 constitutes Petit Larceny and value over $1,000 constitutes Grand Larceny.

2. Identity Theft

If as a result of the skimmer device, an individual assumes the identify of another person and makes financial transactions, identity theft may be charged along side with unlawful possession of a skimmer device. The degree of identity theft charged will depend on the financial loss or on the value of the wrongfully obtained benefit.

3. Unlawful Possession of Personally Identifiable Information

Another related crime is the unlawful possession of another individual’s personally identifiable information. This particular charge applies to the following information:

  • Financial services account number or code,
  • Savings account number or code,
  • Checking account number or code,
  • Brokerage account number or code,
  • Credit card account number or code,
  • Debit card number or code,
  • Automated teller machine number or code,
  • Personal identification number,
  • Mother’s maiden name,
  • Computer system password,
  • Electronic signature or unique biometric data that is a fingerprint,
  • Voice print, AND
  • Retinal image or iris image of another person.

The degree of the crime that will be charged will depend on the following factors:

  1. Number of personally identifiable pieces of information possessed;
  2. Number of individuals or accomplices supervised;
  3. Previous criminal records of similar convictions.

Contact Top Rated New York Criminal Defense Attorneys Today

If you have been charged with Unlawful Possession of a Skimmer Device, you need experienced criminal defense counsel by your side. Oftentimes, the recovery of a skimmer device can turn into a long-term investigation into other fraudulent activity. It is important to have counsel that knows how to defend these types of cases, and how to limit the government’s investigation into you. We have successfully defended countless fraud investigations in New York State and federal courts. Call us at 212-729-9494 or contact us today for your free initial consultation to find out if we are the right firm for you.