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Use of Victim’s Personal Identifying Information Sufficient for Identity Theft Conviction

People v. Roberts

People v. Rush

2018 NY Slip Op 03172

New York Court of Appeals

Decided May 3, 2018



Issue: In People v. Roberts, whether under New York Penal Law § 190.79, a defendant can ‘assume the identity of another’ when he or she uses an innocent party’s credit card number but presents a fake credit card with a fictitious name along with an ID with the same fictitious name and defendant’s photo; in People v. Rush, whether a defendant is guilty of identity theft under the same statute, where the defendant opened a bank account under the name of an innocent party, deposited checks into that account, and then used a debit card to make withdrawals from the account.


Holding:  The Court of Appeals held that Roberts’ use of the innocent party’s credit card number was sufficient to establish identity theft even though he presented himself as a fictitious person, and Rush’s use of an innocent party’s identity to open a bank account was sufficient to convict her of identity theft even though she did not present the third party’s identification when she later made deposits or withdrew funds from the account. The Court further held that New York’s identity theft statute does not require the People to distinctly prove a defendant’s use of protected information and assumptive conduct.


Facts: Two defendants, Kerri Roberts and Terri Rush, were both found guilty of identity theft. Kerri Roberts attempted to use an American Express credit card with the imprinted name “Craig E. Jonathan.” At a store, Roberts presented the card along with a driver’s license with the same name on the credit card but with Roberts’ actual photo.


After Roberts’ failed attempt to convince the cashier to enter the card number manually when the card wouldn’t scan, he was apprehended outside by police, who discovered a piece of paper listing the numbers of several credit cards. The list included the credit card number, name, and billing address of the victim who corresponded to the fake card Roberts had attempted to use in the store. However, Roberts revealed and authorities confirmed that the identifying name “Craig E. Jonathan” was a fictitious person.


At trial, Roberts unsuccessfully moved to dismiss the identity theft charge, arguing that he was pretending to be a fictitious person and not the actual credit card account holder. The Appellate Division, First Department vacated Roberts’ identity theft conviction.


Defendant Rush was apprehended after officials discovered that she had deposited stolen and forged checks in a bank account opened under the name of an innocent third party, from which the funds were later withdrawn. Rush forged the victim’s signature on the backs of the checks and the deposit slips listed his name and the number of the unauthorized bank account. Rush was not required to show ID for these transactions.


Unlike the First Department on Roberts’ appeal, the Fourth Department affirmed Rush’s identity theft conviction, concluded that the use of the victim’s name and account number established that Rush assumed his identity within the meaning of the statute.



The First Department, in Roberts’ case, relied on its prior ruling in People v Barden, 117 AD3d 216, 225 (1st Dept. 2014). There, the Court held that evidence of the mere use of personal identifying information is insufficient to establish the crime of identity theft, and that, to prove its case, the People must establish that a defendant “both used the victim’s personal identifying information and assumed the victim’s identity.”


In Rush’s case, the Fourth Department refused to uphold the First Departments’ decision in Barden. That Court relied on its previous ruling in People v Yuson, 133 AD3d 1221 (4th Dept. 2015), in which the Court held that “the phrase ‘assumes the identity of another person’ is [not] a discrete element that must be proved.”


New York’s Identity Theft Statute

As of 2002, a person is guilty of first and second degree identity theft in New York

“when such person knowingly and with intent to defraud assumes the identity of another person by presenting [themselves] as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby . . . commits or attempts to commit [a felony]” (Penal Law §§ 190.79 [3]; 190.80 [3]).

 The Penal Law defines “personal identifying information” as data commonly used in transacting commercial matters such as a “person’s name; address; telephone number’ social security number; checking, savings, debit card, or credit card account number or code; signature,” or “any other name, number, code or information that may be used alone or in conjunction with other such information to assume the identity of another person.” (Penal Law § 190.77[1])


Contradicting Interpretations of the Statute

Apart from the defendant’s individual arguments, both argued that the Court of Appeals construe the statutory language that a defendant “assumes the identity of another person” as a separate element that must be proven by the prosecution in addition to proving that the defendant used the personal identifying information of another. To establish identity theft, the People must prove that the defendant knowingly and actually intended to defraud by the actus reus of assuming the identity of another.


The statute provides three categories by which a defendant ‘assumes the identity’ of another: by presenting oneself as that other person, acting as that other person, or using that other person’s personal identifying information. While the defendants argued that this portion of the statute should be interpreted as though ‘assuming the identity of another person’ is a separate element that must be proven in addition to the ‘use of personal identifying information,’ the Court determined that this interpretation is not what Legislature intended.


Contrary to the defendants’ proposed interpretation of the identity theft statute, the Court of Appeals held that the ‘assuming another’s identity’ portion of the statute functions as more of a summary of the three categories of conduct that sets forth the actus reus of identity theft.


Other Arguments of Rush and Roberts

Further, the Court of Appeals rejected Roberts’ assertion that he couldn’t be guilty of identity theft because he presented himself as a fictitious person. Identity theft concerns stealing the identity of law-abiding citizens by means of fraudulent use of personal information and identity. Attempting to “assume the victim’s identity by using her credit card number rather than her name” does not preclude a defendant from being found guilty of identity theft.


The Court was also unpersuaded by Rush’s argument that she couldn’t be guilty of identity theft because she didn’t present the victim’s identification when she made transactions at the bank. The fact that Rush fraudulently used personal identifying information to open the bank account in the first place establishes the actus reus element of identity assumption.

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