Identity theft is aggressively prosecuted by both New York State and federal prosecutors. Generally speaking, identity theft charge involves assuming another individual’s identity and engaging in financial transactions to obtain goods, services or credit in another person’s name. It is estimated that in 2018, over 14 million people were victims of identity fraud. New York has three Identity Theft Charges and one Aggravated Identity Theft Charge:

The difference in these charges and the sentencing exposure is explained below.

NY Identity Theft in the Third Degree (PL 190.78)

The least serious of these NY Identity Theft charges is Identity Theft in the Third Degree. This charge requires that:

  1. A person knowingly and with intent to defraud
  2. Assumes the identity of another person AND
  3. Obtains goods, money, property or anything of value in the name of such other person, OR causes a financial loss to such person, OR
  4. Commits a Class “A” Misdemeanor or a higher level crime.

Importantly, the commission of a Class “A” Misdemeanor must be a separate and distinct charge from the New York Identity Theft in the Third Degree. For example, this element is satisfied if Criminal Possession of Stolen Property or Petit Larceny is charged with this Identity Theft Charge.

Penalties and Sentencing for NY Identity Theft in the Third Degree

Identity Theft in the Third Degree is a Class “A” misdemeanor. As such, this charge is punishable by up to 1 year in prison, or up to three years probation. Practically speaking, however, these charges frequently resolve themselves without any jail time with sentences such as:

  • Time served (even if it’s just the time for arrest processing)
  • Conditional discharge (staying out of trouble for a certain period of time, or completing some community service)
  • Unconditional discharge (no conditions imposed by the court as part of the plea)

NY Identity Theft in the Second Degree (PL 190.79)

Identity Theft in the Second Degree is very similar to the charge of Identity Theft in the Third Degree. However, this charge had additional elements – such as the value of the property obtained must be over $500, or a felony must be committed. The elements of NY Identity Theft in the Second Degree are:

  1. A person knowingly and with intent to defraud
  2. Assumes the identity of another person AND
  3. Obtains goods, money, property or anything of value in the name of such other person valued at over $500, OR causes a financial loss of over $500 to such person, OR
  4. Commits or Attempts to commit a felony, or acts as an accessory to the Commission of the felony, OR
  5. Commits the Crime of Identity Theft in the Third Degree and has a previous conviction within the past 5 years for any of the following crimes:
    • Identity Theft in the Third Degree;
    • Identity Theft in the Second Degree;
    • Identity Theft in the First Degree;
    • Unlawful Possession of Personal Identification Information in the Third Degree;
    • Unlawful Possession of Personal Identification Information in the Second Degree;
    • Unlawful Possession of Personal Identification Information in the First Degree;
    • Unlawful Possession of a Skimmer Device in the Second Degree;
    • Unlawful Possession of a Skimmer Device in the First Degree;
    • Grand Larceny in the Fourth Degree;
    • Grand Larceny in the Third Degree;
    • Grand Larceny in the Second Degree; OR
    • Grand Larceny in the First Degree.

Penalties and Sentencing for NY Identity Theft in the Second Degree

Under New York Law, Identity Theft in the Second Degree is a Class “E” Non-violent Felony. As such, this NY Identity Theft Charge is punishable by up to 1 1/3 to 4 years in prison. However, sentences of probation, a determinate sentence of one year or less, conditional discharge, or unconditional discharge are also permissible for this charge.

NY Identity Theft in the First Degree (PL 190.80)

The most serious of New York Identity Theft charges is Identity Theft in the First Degree. This charge is similar to the other two identity theft charges. However, it requires either (1) a financial loss of over $2,000 or a commission or attempted commission of a Class “D” Felony, or a higher level crime. The elements of this NY Identity Theft charge are:

  1. Knowingly and with intent to defraud,
  2. Assuming the identity of another person AND
  3. Obtaining goods, money, property or anything of value in the name of such other person valued at over $2,000, OR causing a financial loss of over $2,000 to such person, OR
  4. Commits or Attempts to commit a Class “D” felony or a higher level crime, or acts as an accessory to the commission of the Class “D” felony or a higher level crime, OR
  5. Commits the crime of Identity Theft in the Second Degree and in the five preceding years has previously been convicted of:
    • Identity Theft in the Second Degree;
    • Identity Theft in the First Degree;
    • Unlawful Possession of Personal Identification Information in the Third Degree;
    • Unlawful Possession of Personal Identification Information in the Second Degree;
    • Unlawful Possession of Personal Identification Information in the First Degree;
    • Unlawful Possession of a Skimmer Device in the Second Degree;
    • Unlawful Possession of a Skimmer Device in the First Degree;
    • Grand Larceny in the Fourth Degree;
    • Grand Larceny in the Third Degree;
    • Grand Larceny in the Second Degree; OR
    • Grand Larceny in the First Degree.

Penalties and Sentencing for NY Identity Theft in the First Degree

NY Identity Theft in the First Degree is a Class “D” Non-violent Felony. As such, this particular charge is punishable by up to 2 1/3 to 7 years in prison. However, sentences of probation or conditional discharge are also possible for this charge.

Aggravated Identity Theft (PL 190.80-A) 

There is a separate Identity Theft charge that applies to cases where (1) the complainant is a member of the armed forces deployed overseas (2) the Defendant knowingly assumed that person’s identity. This charge is called Aggravated Identity Theft and is codified in New York Penal Law Section 190.80-A. Under this NY Identity Theft Charge, the prosecutor is required to prove the following elements:

  1. Knowingly and with intent to defraud,
  2. Assuming another person’ identity by presenting himself or herself as that other person, or by using that person’s personal identifying information, AND
  3. Knowing that such person is a member of the armed forces AND knowing that such person is presently deployed outside the continental United States, AND
  4. Obtains goods, money, property, services or anything of value or uses credit in the name of the member of armed forces in an aggregate amount of over $500; OR
  5. Causes a financial loss to the member of the armed forces in an aggregate amount of over $500.

Penalties and Sentencing for Aggravated Identity Theft

Aggravated Identity Theft is a Class “D” Felony. As such, this charge is punishable by up to 2 1/3 to 7 years in prison. However, sentences of:

  • Probation,
  • Conditional Discharge,
  • Determinate Sentence of 1 year of less,

Are all possible sentences for this New York Identity Theft charge.

Frequently Asked Questions Regarding NY Identity Theft Charges

Here are some answers to the frequently asked questions regarding New York Identity Theft charges.

Which Agency Investigates NY Identity Theft Charges?

Several agencies investigate New York Identity Theft charges. Specifically, the New York City Police Department, New York State Troopers, Federal Bureau of Investigations (“FBI”), U.S. Postal Inspectors and U.S. Secret Service. Both New York State prosecutors (District Attorneys’ Offices and New York State Attorney General’s Office) as well as federal prosecutors investigate and prosecute identity theft charges.

What is the Statute of Limitations for NY Identity Theft Charges?

The statute of limitations of New York Identity Theft charges depends on whether the charge is a misdemeanor or a felony. New York has a 2-year statute of limitations for misdemeanors and a 5-year statute of limitations for felonies. Here are the statutes of limitations broken up by charge:

New York Identity Theft ChargeSOL
Identity Theft in the First Degree (PL 190.80)5 years
Identity Theft in the Second Degree (PL 190.79)5 years
Identity Theft in the Third Degree (PL 190.78)2 years
Aggravated Identity Theft (PL 190.80-A)5 years
New York Identity Theft Statute of Limitations

If I Plead Guilty or Am Convicted of NY Identity Theft Charges, Will I Have to Pay Restitution?

Depending on the terms of your plea agreement, you may be required to pay back restitution. Additionally, if you are convicted at trial, a judge is able to issue an order for restitution to the victims of identity theft.

If I am convicted of New York Identity Theft Charges, can I apply to expunge or seal my conviction?

New York State does not have a legal method by which a conviction can be completely erased. This is called “expungement.” Rather, New York recently passed a law that allows certain convictions for non-violent lower level felony offenses to be sealed. Under New York Criminal Procedure Law 160.59, misdemeanors and non-violent felonies (Class “E” and “D” only) qualify. Therefore, your NY Identity Theft conviction would qualify for sealing under CPL 160.59, so long as you meet the other requirements.

Contact Top Rated Identity Theft Defense Attorneys

If you or a loved one have been arrested for NY Identity Theft Charges, you need top rated NYC Criminal Defense Attorneys by your side to handle the case. Contact us today to schedule your initial consultation.