Defending New York Computer Crimes

New York Computer Crimes are frequently investigated by local, state and federal law enforcement. Cybercrime is one of the fastest growing security threats in the United States. As our internet usage increases, so does the frequency of cyber crimes. New York Cyber Crimes are investigated by local, state and federal law enforcement agencies, who have developed a sophisticated way to investigate and prosecute these computer crimes. If you believe you are under investigation or if you have already been arrested for a New York Cyber Crime, you need to schedule a consultation with a top-rated New York Computer Crimes Attorney immediately.

Definitions Used in New York Computer Crimes

Before discussing specific Penal Law Charges relating to New York Cyber Crimes, it is important to briefly go over the definitions as they are used in Article 156, which is the Computer Crimes Section of the Penal Law.

Term	Legal Definition from Article 156 of the New York Penal Law
Computer	“Computer” is a device or group of devices which can automatically perform arithmetic, logical, storage or retrieval operations with or on computer data. Computer includes any connected or directly related device, equipment or facility which enables such computer to store, retrieve or communicate to or from a person, another computer or another device the results of computer operations, computer programs or computer data.
Computer Program	“Computer Program” is property and means an ordered set of data representing coded instructions or statements that, when executed by computer, cause the computer to process data or direct the computer to perform one or more computer operations or both and may be in any form, including magnetic storage media, punched cards, or stored internally in the memory of the computer.
Computer Data	“Computer Data” is property and means a representation of information, knowledge, facts, concepts or instructions which are being processed, or have been processed in a computer and may be in any form, including magnetic storage media, punched cards, or stored internally in the memory of the computer.
Computer Service	“Computer Service” is any and all services provided by or through the facilities of any computer communication system allowing the input, output, examination, or transfer, of computer data or computer programs from one computer to another.
Computer Material	“Computer Material” is property and means any computer data or computer program which: (a) Contains records of the medical history or medical treatment of an identified or readily identifiable individual or individuals. This term shall not apply to the gaining access to or duplication solely of the medical history or medical treatment records of a person by that person or by another specifically authorized by the person whose records are gained access to or duplicated; OR (b) Contains records maintained by the state or any political subdivision thereof or any governmental instrumentality within the state which contains any information concerning a person, as defined in subdivision seven of section 10.00 of this chapter, which because of name, number, symbol, mark or other identifier, can be used to identify the person and which is otherwise prohibited by law from being disclosed. This term shall not apply to the gaining access to or duplication solely of records of a person by that person or by another specifically authorized by the person whose records are gained access to or duplicated; OR (c) Is not and is not intended to be available to anyone other than the person or persons rightfully in possession thereof or selected persons having access thereto with his, her or their consent and which accords or may accord such rightful possessors an advantage over competitors or other persons who do not have knowledge or the benefit thereof.
Computer Network	“Computer Network” means the interconnection of hardwire or wireless communication lines with a computer through remote terminals, or a complex consisting of two or more interconnected computers.
Access	“Access” means to instruct, communicate with, store data in, retrieve from, or otherwise make use of any resources of a computer, physically, directly or by electronic means.
Without Authorization	“Without Authorization” means to use or to access a computer, computer service or computer network without the permission of the owner or lessor or someone licensed or privileged by the owner or lessor where such person knew that his or her use or access was without permission or after actual notice to such person that such use or access was without permission. It shall also mean the access of a computer service by a person without permission where such person knew that such access was without permission or after actual notice to such person, that such access was without permission. Proof that such person used or accessed a computer, computer service or computer network through the knowing use of a set of instructions, code or computer program that bypasses, defrauds or otherwise circumvents a security measure installed or used with the user’s authorization on the computer, computer service or computer network shall be presumptive evidence that such person used or accessed such computer, computer service or computer network without authorization.
Felony	“Felony” as used in this Article 156 – New York Cyber Crimes Article, means any felony defined in the laws of New York state or any offense defined in the laws of any other jurisdiction for which a sentence to a term of imprisonment in excess of one year is authorized in this state.

Unauthorized Use of a Computer

Under New York Penal Law Section 156.05, it is a crime to use someone else’s computer without permission. This New York Computer Crime has the following elements:

1. Knowing
2. Use or access of a computer, computer service, or computer network, without authorization.

Before you start thinking that accessing your roommate’s computer to print something will lead do a criminal charge, stop. New York Unauthorized Use of a Computer charges are typically filed when there is a sinister, and not an innocuous purpose for using someone else’s computer.

Penalties and Sentencing for Unauthorized Use of a Computer

Under New York Law, Unauthorized Use of a Computer is a class A misdemeanor. As such, this New York Computer Crime is punishable by up to 1 year in prison, or up to three years probation. Additionally, sentences of time served, conditional discharge, unconditional discharge, and community service are all possible sentences for this New York Cyber Crime.

Computer Trespass

Computer Trespass is a more serious charge than Unauthorized Use of a Computer. New York Computer Trespass requires an additional element of either (1) intent to commit, attempt to commit or further the commission of a felony, or (2) knowingly gaining access to computer material.

Elements of New York Computer Trespass

Under New York Penal Law Section 156.10, the charge of Computer Trespass has these elements:

1. Knowingly
2. Uses, causes to be used or accesses a computer, computer service, or computer network without authorization, AND
3. Does so with an intent to commit or attempt to commit or further the commission of any felony; OR
4. Thereby knowingly gains access to computer material.

Penalties and Sentencing for Computer Trespass

This New York Computer Crime is a Class “E” Non-Violent Felony. As such, this charge is punishable by up to 1 1/3 to 4 years in prison. However, probation and conditional discharge are both authorized sentences for New York Computer Trespass charge.

Computer Tampering

Under New York Law, it is a crime to access a computer without authorization and either alter or delete the computer data. This crime is called Computer Tampering. There are four Computer Tampering Charges in the New York Penal Law. Specifically, these charges are:

• Computer Tampering in the First Degree
• Computer Tampering in the Second Degree
• Computer Tampering in the Third Degree
• Computer Tampering in the Fourth Degree

Computer Tampering in the First Degree is the most serious of these charges, while Computer Tampering in the Fourth Degree is the least serious. The difference in these charges is explained below.

Computer Tampering in the Fourth Degree

Computer Tampering in the Fourth Degree is codified in New York Penal Law Section 156.20. This New York Computer Crime is the least serious of New York Computer Tampering Charges. With that being said, it is still a misdemeanor that can lead to a permanent criminal record as well as jail time.

Elements of Computer Tampering in the Fourth Degree

In order to convict someone of this New York Computer Crime, the prosecutor is required to prove these elements beyond a reasonable doubt:

1. First, a person must use, causes to be used, or accesses a computer, computer service, or computer network without authorization, AND
2. Intentionally alters in any manner or destroys computer data or a computer program of another person.

Penalties and Sentencing for Computer Tampering in the Fourth Degree

Computer Tampering in the Fourth Degree is a Class “A” Misdemeanor. As such, this New York Cyber Crime is punishable by up to 3 years probation or 1 year in prison. Practically speaking, however, New York Computer Tampering in the Fourth Degree charges can resolve themselves without any jail time. Such as with a sentence of conditional discharge or an unconditional discharge.

Computer Tampering in the Third Degree

New York Computer Tampering in the Third Degree, New York Penal Law Section 156.25, is similar to New York Computer Tampering in the Fourth Degree. However, this New York Computer Crime has additional elements.

Elements of New York Computer Tampering in the Third Degree

Computer Tampering in the Third Degree has the following elements:

1. Commission of Computer Tampering in the Fourth Degree, AND
2. Doing so with the intent to commit, attempt to commit, or further the commission of any felony; OR
3. Previous conviction of any New York Computer Crime under Penal Law Article 156, or Theft of Services under Penal Law 165.15(11); OR
4. Intentionally altering or destroying computer data or a computer program so as to cause damage over $1,000.

Theft of Services Conviction Necessary for Computer Tampering in the Third Degree Bump Up

Not all prior convictions for Theft of Services qualify as a bump up for Computer Tampering in the Fourth Degree to Computer Tampering in the Third Degree. The prior conviction must be for Penal Law 165.15(11).

New York Penal Law 165.15(11) states: 
A person is guilty of Theft of Services when with  intent  to  avoid  payment  by himself, herself, or another person of the lawful charge for use of any computer,  computer  service, or computer network which is provided for a charge or compensation he or she  uses,  causes  to be used, accesses, or attempts to use or access a computer, computer service, or computer network and avoids  or  attempts to  avoid  payment  therefor. 

Thus, although the Theft of Services under Penal Law 165.15(11) is not located in the New York Computer Crimes Section, it still relates to unlawful use of a computer, computer service or computer network.

Penalties and Sentencing for Computer Tampering in the Third Degree

This New York Computer Crime is a Class “E” Non-Violent Felony. As such, this charge is punishable by up to 1 1/3 to 4 years in prison. However, probation, conditional discharge and unconditional discharge are all potential sentences for this New York Computer Crime.

Computer Tampering in the Second Degree

New York Computer Tampering in the Second Degree under Penal Law Section 156.26, requires that the crime of Computer Tampering in the Fourth Degree be committed as well as the presence of one additional element.

Elements of Computer Tampering in the Second Degree

Under New York Penal Law Section 156.26, a person is guilty of Computer Tampering in the Second Degree, when:

1. S/he commits the crime of Computer Tampering in the Fourth Degree, AND
2. S/he intentionally alters in any manner or destroys any of the following:
   1. Computer data or a computer program so as to cause damages in an aggregate amount exceeding $3,000, OR
   2. Computer material that contains records of the medical history or medical treatment of an identified or readily identifiable individual or individuals and as a result of such alteration or destruction, such individual or individuals suffer serious physical injury, and he or she is aware of and consciously disregards a substantial and unjustifiable risk that such serious physical injury may occur.

Penalties and Sentencing for Computer Tampering in the Second Degree

Computer Tampering in the Second Degree is a Class “D” Non-Violent Felony. As such, this New York Cyber Crime is punishable by up to 2 1/3 to 7 years in prison. However, the following are possible sentences for Computer Tampering in the Second Degree under New York Penal Law Section 156.26:

• Determinate sentence of 1 year incarceration;
• Probation;
• Conditional discharge;
• Unconditional discharge.

Computer Tampering in the First Degree

Similarly to Computer Tampering in the Second Degree and in the Third Degree, Computer Tampering in the First Degree requires that the individual:

(1) Commits Computer Tampering in the Fourth Degree, AND

(2) Causes damage over 50,000 by intentionally altering in any manner or destroying computer data or a computer program.

Penalties and Sentencing for Computer Tampering in the First Degree

This New York Cyber Crime is a class “C” Non-Violent Felony. As such, this charge is punishable by up to 5 to 15 years in prison. However, sentences of probation or a conditional discharge are permissible on the Computer Tampering in the First Degree charge.

Unlawful Duplication of Computer Related Material

New York has criminal laws that prohibit unlawful copying of computer material when:

1. It relates to medical records of identifiable patients; OR
2. Causes an economic loss of $2,500; OR
3. It furthers the commission of a felony.

These New York Computer Crimes are known as Unlawful Duplication of Computer Related Material. There are two different New York Unlawful Duplication of Computer Related Material charges:

• Unlawful Duplication of Computer Related Material in the First Degree
• Unlawful Duplication of Computer Related Material in the Second Degree

Unlawful Duplication of Computer Related Material in the Second Degree

This New York Computer Crime, under New York Penal Law Section 156.29, has the following four elements:

1. When having no right to do so,
2. Copies, reproduces, or duplicates in any manner
3. Computer related material which contains records of the medical history or medical treatment of an identified or readily identifiable individual or individuals,
4. With an intent to commit or further the commission of any crime under this chapter.

Penalties and Sentencing for Unlawful Duplication of Computer Related Material in the Second Degree

This New York Computer Crime is a Class “B” Misdemeanor. As such, it can be punishable by up to 90 days in prison and can give you a criminal record. Additionally, sentences of probation, conditional discharge, unconditional discharge and time served are authorizes sentences for Unlawful Duplication of Computer Related Materials in the Second Degree.

Unlawful Duplication of Computer Related Material in the First Degree

Under New York Penal Law Section 156.30, a person is guilty of Unlawful Duplication of Computer Related Material in the First Degree when:

1. Having no right to do so,
2. S/he copies, reproduces or duplicates in any manner:
   1. Any computer data or computer program AND thereby intentionally and wrongfully deprives or appropriates from an owner thereof an economic value or benefit over $2,500; OR
   2. Any computer data or computer program with an intent to commit or attempt to commit or further the commission of any felony.

Penalties and Sentencing for Unlawful Duplication of Computer Related Material in the First Degree

Unlawful Duplication of Computer Related Material in the First Degree is a Class E Non-violent Felony. As such, this New York Computer Crime is punishable by up to 1 1/3 to 4 years in prison. However, sentences of probation, conditional discharge, or unconditional discharge are authorized sentences for Unlawful Duplication of Computer Related Material in the First Degree.

Criminal Possession of Computer Related Material

Criminal Possession of a Computer Related Material is a crime related to Unlawful Duplication of Computer Related Materials under New York Penal Law Section 156.30. This New York Computer Crime criminalizes the possession in any form computer data or computer program which was copied or obtained in violation of New York Penal Law Section 156.30. Possession of these materials must be with the intent to benefit the actor or a person other than the lawful owner of this property.

Penalties and Sentencing for Computer Related Material

Criminal Possession of Computer Related Material is a Class “E” Non-violent Felony. As such, this New York Computer crime is punishable by up to 1 1/3 to 4 years in prison. However, probation, conditional discharge and unconditional discharge are all authorized sentences for this New York Computer Crime.

Operating an Unlawful Electronic Sweepstakes

Under New York Penal Law Section 156.40, Operating an Unlawful Electronic Sweepstakes Charge has the following elements:

1. Knowing possession with the intent to operate, or place into operation, an electronic machine or device to:
   1. Conduct a sweepstakes through the use of an entertaining display, including the entry process or the reveal of a prize; OR
   2. Promote a sweepstakes that is conducted through the use of an entertaining display, including the entry process or the reveal of a prize.

Penalties and Sentencing for Operating Unlawful Electronic Sweepstakes

Operating an Unlawful Electronic Sweepstakes is a Class “E” Non-violent Felony. As such, this New York Computer crime is punishable by up to 1 1/3 to 4 years in prison. However, probation, conditional discharge and unconditional discharge are all authorized sentences for this New York Computer Crime.

Cyber Harassment

Cyber Harassment is a pattern of activity through the internet designed to antagonize, alarm, or intimidate another individual. Although Cyber Harassment is not a separate New York Computer Crime, it is frequently prosecuted under New York Penal Law Section 240.26, Harassment in the Second Degree and New York Penal Law 240.30, Aggravated Harassment in the Second Degree. New York legislation making Cyber Harassment a separate criminal offense, is yet to be enacted into law.

Harassment in the Second Degree (PL 240.26)

New York Cyber Harassment charges can be prosecuted under Penal Law 240.26(3), which has the following elements:

1. With intent to harass, annoy or alarm another person,
2. Engaging in a course of conduct, OR
3. Repeatedly committing acts which alarm or seriously annoy such other person, AND
4. Which serve no legitimate purpose

Aggravated Harassment in the Second Degree (PL 240.30)

Cyber Harassment can also be prosecuted as Aggravated Harassment in the Second Degree under New York Penal Law Section 240.30(1)(a) or 240.30(1)(b). The elements of these two New York Computer Crimes are explained below.

Elements of Aggravated Harassment in the Second Degree

Cyber Crime Under New York Penal Law 240.30(1)(a)

Under New York Penal Law 240.30(1)(a), a person is guilty of Aggravated Harassment in the Second Degree when:

1. With intent to harass another person, the actor:
2. Communicates anonymously or otherwise by computer or any other electronic means,
3. A threat to cause physical harm to, or unlawful harm to the property of, such person, or a member of such person’s same family or household, AND
4. The actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person’s physical safety or property, or to the physical safety or property of a member of such person’s same family or household.

Cyber Crime Under New York Penal Law 240.30(1)(b)

Under New York Penal Law 240.30(1)(b), a person is guilty of Aggravated Harassment in the Second Degree when:

1. S/he causes a communication to be initiated anonymously or otherwise, by computer or any other electronic means,
2. A threat to cause physical harm to, or unlawful harm to the property of, such person, a member of such person’s same family or household, AND
3. The actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person’s physical safety or property, or to the physical safety or property of a member of such person’s same family or household.

Penalties and Sentencing for Cyber Harassment

Harassment in the Second Degree (PL 240.26)

Harassment in the Second Degree is a violation. Although this charge can be punishable by up to 15 days in jail, oftentimes it is resolved without any jail time. For example, violations are often resolved with sentences of time served, conditional or unconditional discharge.

Aggravated Harassment in the Second Degree (PL 240.30)

Under New York Law, Aggravated Harassment in the Second Degree is a Class “A” misdemeanor. As such, this charge is punishable by up to 1 year in prison. However, practically speaking, Class “A” Misdemeanors are frequently resolved without any jail time – such as a conditional discharge, unconditional discharge, time served or probation.

Accessing Child Pornography

Another New York Computer Crime that is frequently prosecuted is the possession of Child Pornography. These charges can be prosecuted under both New York and federal law. The difference between New York State and Federal Charges are explained below.

Contact Top Rated New York Computer Crimes Attorneys

If you suspect that you are under investigation, or have already been arrested for a New York Computer Crime, you need experienced criminal defense counsel. Please call us at 212-729-9494 or contact us today for your free initial consultation.