A New York Criminal Lawyer said this case, tried to the Court without a jury, involves the confluence of criminal law, domestic relations, and consumer credit. Defendant is charged with multiple counts of Attempted Identity Theft and Attempted Petit larceny, as well as one count of Attempted Possession of Personal Identification Information in the Third Degree, all class B misdemeanors, as to which she moved at the end of testimony for a trial order of dismissal.
A Kings County Criminal lawyer said that Defendant is charged with charged with six counts of Attempted Petit larceny; six counts of Attempted Identity Theft; and one count of Attempted Unlawful Possession of Personal Identification Information in the Third Degree, all class B misdemeanors, for transactions between January 25, 2008, and June 9, 2009. After summations, Defendant moved for a trial order of dismissal contending, inter alia, that Defendant had no intent to defraud or to deprive the Complainant of property, and, thus, the People had not proven the charged crimes beyond a reasonable doubt.
A New York Criminal Lawyer said that on or about 2000, Defendants began a romantic relationship, and in 2001, Defendant gave birth to the a daughter moved in with Defendant in her apartment on Greene Avenue in Queens. In 2006, Defendant, together with the child moved to a different address on the same block, and, in July 2006, the defendant wrote a check for $800, to be used for rent. He continued to pay approximately half of the rent on the apartment until early 2008.
According to Defendant, her relationship was “on again, off-again,” which was similar to categorization of their time together. During much of this time, he worked for the New York City Parks Department, earning approximately $1000 every two weeks, according to his testimony, although it was not specified as to whether this was gross earnings or net of taxes and other deductions. Defendant was employed as a legal secretary during the times relevant to this case.
While the husband was living with Defendant, he also maintained a mailing address at his parents’ residence on Jefferson Avenue in Brooklyn. He testified that he received his mail at Jefferson Avenue, and not at Greene Avenue. It is undisputed that the wife was close with his family, and particularly with his father.
A Bronx Criminal Lawyer said the matters at issue in this case commenced in early 2008. Defendant was desirous of purchasing a computer, and , according to her testimony, she contacted in an attempt to open a credit account. Defendant had previously filed for bankruptcy protection, and the computer corporation declined to open or reopen an account for her. At or about the same time, according to Defendant, the wife ceased paying any portion of the rent on the Greene Avenue apartment.
In May 2009, Defendant commenced a proceeding in Family Court, and obtained an order of protection against the wife who had ceased paying voluntary child support. Subsequently, Family Court ordered him to pay child support of $300 per month, and the wife apparently complied with the Family Court support order.
A Brooklyn Criminal Lawyer said that meanwhile, payments on the computer ceased following the May 2009 payment of $150.3 Also during this time, the email address to which bills on the account were sent was changed in or about October 2008 from an e-mail account associated with the wife to one associated with Defendant.
A person is guilty of identity theft in the third degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby: 1. obtains goods, money, property or services or uses credit in the name of such other person or causes financial loss to such person or to another person or persons;
The key element in this case, intent to defraud, has no penal law definition, but its use in related contexts provides guidance for its definition. The New York Court of Appeals, in an appeal of a criminal possession of forged instrument conviction, has stated that an intent to defraud should be “for the purpose of leading another into error or to disadvantage.” The U.S. Supreme Court has indicated that “to defraud” means “wronging one in his property rights by dishonest methods or schemes, and usually signifying the deprivation of something of value by trick, deceit, chicane or overreacting.” Further, particularly relevant to this case, the statute clearly states that the use of another’s credit, not merely the receipt of tangible goods, is punishable under the statute.
A person is guilty of Petit larceny when he or she steals property. Larceny is defined as: “with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.”. Here, the elements of larceny would be satisfied if the Court finds that the People have submitted proof beyond a reasonable doubt that Defendant obtained goods in the name of the Complaint without his permission.
The relevant portions of Penal Law § 190.81 state that a person is guilty: when he or she knowingly possesses a person’s 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 of another person knowing such information is intended to be used in furtherance of the commission of a crime defined in this chapter.
The Court finds that the People have not proven Defendant’s guilt beyond a reasonable doubt as to the transactions prior to August 2008, when the wife left the Greene Avenue residence for the last time, and his relationship with Defendant came to an end, save for court proceedings and visitation with their daughter authorized by Family Court. Certainly as to the initial purchase of the computer in March 2008, and possibly as to some of the subsequent purchases, the wife and Defendant maintained a relationship, rocky as it may have been. defendant was a visitor, if not resident, in the Greene Avenue apartment and had ample opportunity to see and use the computer and other electronics purchased on the account from the computer company, and to be otherwise aware of the orders.
The Court finds it unnecessary to resolve this factual dispute. Rather, the Court holds that even crediting Defendant’s testimony, for the purposes of argument, that wife knew about the Dell account and gave Defendant permission to place the orders in his name, that authority terminated as a matter of law when Defendant, by her own testimony, threw the wife out of the house, and commenced a Family Court proceeding against V. N. to obtain an order of protection and support order.
The Court is also not oblivious to the monies earned by selling goods on credit. Here, the computer company charged 27.99 percent interest per annum.7 At $150 per month, the most that Defendant ever paid on the account, it would take more than42 months to pay off the balance, assuming no new purchases, and Dell would receive in interest payments an amount approximately 50 percent of the purchase price of the goods, had they been paid for in cash. At $100 per month, closer to the average monthly payment made by Defendant during the time she made payments, it would barely cover interest accrued, and take more than 115 months – almost ten years – to pay the balance, with no new purchases, resulting in interest payments far in excess of the principle. And, had the balance of the account stayed at $4000, either by means of additional purchases or if the account holder paid only enough to cover accrued interest, Dell would receive approximately $1120 per year in interest alone.
For the reasons set forth above, Defendant’s motion for a trial order of dismissal is DENIED in its entirety. Defendant is found not guilty of Attempted Petit larceny and Attempted Identity Theft for those counts relating to January 25, 2008, June 30, 2008, and July 28, 2008, but is found guilty on those counts relating to December 1, 2008, and June 5, 2009.
If you are a victim of theft of personal things, our Kings County Petit Larceny Attorneys will help you file a case against the thief. For other criminal cases which you may file against the offender, our Kings County Criminal Attorneys will help you.