What Is Aggravated Identity Theft in New York?

Aggravated identity theft in New York can involve state charges, federal charges, or both. These cases may center on the alleged use of another person’s identifying information, whether the alleged victim falls within New York’s aggravated identity theft statute, or whether federal prosecutors can connect the identity information to a qualifying felony.

At the Law Offices of Jason Bassett, P.C., Suffolk County criminal defense lawyer Jason Bassett helps clients facing serious identity theft, fraud, and federal criminal allegations. He can help determine which law applies, what prosecutors must prove, and whether the evidence supports the aggravated identity theft charge.

This guide covers aggravated identity theft under New York and federal law, including New York Penal Law § 190.80-a, federal predicate offenses under 18 U.S.C. § 1028A, the difference between § 1028 and § 1028A, possible penalties, consecutive sentencing, and defenses that may apply. Contact the Law Offices of Jason Bassett, P.C. at (631) 259-6060 to schedule a consultation.

How Does New York Define Aggravated Identity Theft?

Under New York Penal Law § 190.80-a, a person is only guilty of aggravated identity theft when he or she knowingly and with intent to defraud assumes the identity of another person while knowing that the person being impersonated is a member of the armed forces deployed outside of the continental United States.

The charge also requires more than $500 in value obtained or financial loss caused under the servicemember’s identity. That threshold, combined with the deployed servicemember element, separates aggravated identity theft from other New York identity theft offenses.

New York treats identity theft in tiers, and aggravated identity theft sits at the top alongside the first-degree offense. The main distinctions are:

• Identity theft in the second degree under Penal Law § 190.79: a Class E felony.
• Identity theft in the first degree under Penal Law § 190.80: a Class D felony involving higher value thresholds or specified predicate conduct.
• Aggravated identity theft under Penal Law § 190.80-a: a Class D felony requiring the deployed military victim element and the $500 threshold.

Aggravated identity theft is categorized as a Class D felony. If the court imposes a felony prison sentence for a Class D felony, the maximum term cannot exceed seven years. The actual sentence depends on the facts of the case, the defendant’s history, and the sentencing options available under New York law.

Key Takeaway: In New York, aggravated identity theft is a Class D felony distinguished by two key requirements: a deployed military victim and more than $500 in value or financial loss.

If you have been accused under New York Penal Law § 190.80-a, attorney Jason Bassett can review the evidence before any plea is discussed.

What Are the Predicate Offenses Under Federal Law?

18 U.S.C. § 1028A does not stand alone. It applies only when a person, during and in relation to a qualifying federal felony, knowingly transfers, possesses, or uses, without lawful authority, a “means of identification” of another person. A “means of identification” includes a name, Social Security number, date of birth, driver’s license number, passport number, or any other identifier used to identify a specific individual.

The qualifying felonies, called predicate offenses, are listed in subsection (c). They cover a broad range of federal conduct, including:

• Theft of public money, property, or rewards under 18 U.S.C. § 641, bank officer or employee misconduct under § 656, and theft or embezzlement from employee benefit plans under § 664.
• False personation of citizenship and false statements in connection with the acquisition of a firearm.
• Any provision in Chapter 47 relating to fraud and false statements, other than § 1028A itself or § 1028(a)(7).
• Any provision contained in Chapter 63, which covers federal fraud offenses.
• Nationality, citizenship, passport, and visa offenses under Chapters 69 and 75.
• Immigration-related offenses and obtaining customer information by false pretenses under the Gramm-Leach-Bliley Act.

A separate and more severe version applies to terrorism. Under § 1028A(a)(2), knowingly transferring, possessing, or using another person’s means of identification, or a false identification document, during and in relation to a felony listed in 18 U.S.C. § 2332b(g)(5)(B) carries a mandatory five-year term instead of two years.

What Is the Difference Between § 1028 and § 1028A?

These two statutes are often confused, but they punish different conduct. 18 U.S.C. § 1028 is the general identity fraud statute. It covers producing, transferring, or possessing false identification documents and the unlawful use of another person’s identification, and it carries its own range of penalties depending on the conduct.

18 U.S.C. § 1028A is different because it adds a separate mandatory sentence when another person’s means of identification is unlawfully transferred, possessed, or used during and in relation to a qualifying federal felony.

Because § 1028A carries a mandatory consecutive sentence, the charge can substantially increase a defendant’s total exposure. The added sentence does not replace the punishment for the underlying felony; it is imposed in addition to that sentence.

If federal prosecutors have added a § 1028A count to a qualifying federal fraud charge in your case, Jason Bassett can explain how much additional exposure that creates.

Can You Face Both State and Federal Charges?

Under the dual sovereignty doctrine, state and federal governments are treated as separate sovereigns, and a single course of conduct can result in charges under both New York Penal Law § 190.80-a and 18 U.S.C. § 1028A. A prosecution in one system does not automatically bar a prosecution in the other.

In practice, the same conduct, such as using a deployed servicemember’s credit information in a fraud scheme that crosses state lines or uses interstate or foreign wire communications, can draw the interest of both Suffolk County prosecutors and federal authorities in the Eastern District of New York. Which sovereign proceeds often depends on the dollar amounts, the predicate offense, and whether federal jurisdictional elements are present.

The real concern is how the two cases may affect overall exposure. When state and federal authorities are both involved, coordinated defense strategy matters because decisions in one forum can affect the other.

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What Are the Penalties for Aggravated Identity Theft in New York?

The penalties differ sharply depending on whether the case proceeds under New York law, federal law, or both.

New York State Penalties

Aggravated identity theft and first-degree identity theft are Class D felonies in New York. If the court imposes a felony prison sentence for a Class D felony, the maximum term cannot exceed seven years. Depending on the facts, the defendant’s history, and the authorized sentencing options, probation or another non-prison disposition may be possible in some cases.

In addition to possible incarceration, a felony fine may apply. For a New York felony, the fine generally may not exceed the higher of $5,000 or double the defendant’s gain from the crime.

Federal Penalties Under 18 U.S.C. § 1028A

The sentencing structure for federal aggravated identity theft differs from most federal offenses. Instead of a range, the crime carries a fixed term: 24 months for a standard predicate felony and 60 months when the crime is connected to federal terrorism. The term is served consecutively to any other sentence, and the court may not place the defendant on probation under § 1028A(b)(1).

USSC FY2024 data shows that 575 cases involved § 1028A, with an average total sentence of 54 months and a 99.0% imprisonment rate. The same data shows that 16.2% of § 1028A sentences involved substantial assistance departures, with an average sentence reduction of 57.8%. These numbers may matter when a defendant is evaluating whether cooperation could affect the sentencing strategy.

Element	New York (§ 190.80-a)	Federal (§ 1028A)
Classification	Class D felony	Separate federal offense requiring a predicate felony
Prison term	Up to 7 years if prison is imposed	Mandatory 24 months, or 60 months if terrorism-related
Sentence structure	Discretionary range	Fixed; consecutive to underlying sentence
Probation available	Possible when authorized by New York sentencing law	Prohibited under § 1028A(b)(1)
Fines	Up to the higher of $5,000 or double the defendant’s gain	Fines are typically driven by the underlying predicate felony
FY2024 outcome data	N/A	Avg. 54 months; 99% imprisoned

Key Takeaway: New York penalties can include up to seven years in prison and a felony fine of up to the higher of $5,000 or double the defendant’s gain, with probation possible in some cases. Federal penalties under § 1028A are fixed, mandatory, consecutive, and exclude probation. USSC FY2024 data shows the average federal sentence in these cases was 54 months.

How Does Consecutive Sentencing Work in Federal Cases?

Under 18 U.S.C. § 1028A(b), the court must impose the § 1028A term consecutively. No term of imprisonment under this section may run concurrently with any other term, including the sentence for the felony during which the means of identification was transferred, possessed, or used. This means the § 1028A term is imposed in addition to the sentence for the underlying offense.

The statute also bars the court from reducing the sentence for the underlying felony to offset the § 1028A term. In other words, a judge cannot reduce the predicate sentence to offset the impact of the mandatory consecutive term. There is one narrow exception: under § 1028A(b)(4), when a defendant is convicted of multiple § 1028A counts at the same time, the court has discretion to run those counts concurrently with each other.

Consider a concrete example. A defendant convicted of wire fraud and sentenced to three years receives a mandatory two-year § 1028A term that runs consecutively, producing a total of at least five years. The two years cannot overlap with the wire fraud sentence, and the wire fraud sentence cannot be reduced to make room for it.

What Defenses Apply to Aggravated Identity Theft Charges?

Several defenses may apply, including lack of knowledge or intent, authorization-related issues, unlawful searches or other constitutional violations, mistaken identity, and challenges to the predicate felony in federal cases. The right defense depends on the facts and on whether the case is in state or federal court.

Lack of Knowledge or Intent

Knowledge and intent can be contested in aggravated identity theft cases. Under New York law, prosecutors must prove the defendant knowingly and with intent to defraud assumed another person’s identity and knew the person was a deployed member of the armed forces. In federal cases, prosecutors must prove the defendant knowingly transferred, possessed, or used another person’s means of identification, without lawful authority, during and in relation to a qualifying federal felony.

This knowledge requirement is significant under federal law. In Flores-Figueroa v. United States, the Supreme Court held that the government must prove the defendant knew the means of identification belonged to another real person. In Dubin v. United States, the Court also narrowed § 1028A by requiring the misuse of another person’s means of identification to be at the crux of what makes the underlying offense criminal. These rules can support a defense when the evidence does not show the required knowledge or the required connection between the identification and the predicate felony.

Consent or Authorization Issues

Permission to use another person’s identification does not automatically defeat an aggravated identity theft charge. Under federal § 1028A, the issue is whether the defendant used the identification “without lawful authority” during and in relation to a qualifying felony. In the Second Circuit, that issue may include identification obtained with consent but used for an unlawful purpose. 

A New York charge requires a separate state-law analysis because § 190.80-a focuses on whether the defendant knowingly assumed a deployed servicemember’s identity with intent to defraud and met the more-than-$500 value or loss threshold.

Unlawful Search or Constitutional Violations

Defendants can challenge the admissibility of evidence obtained through illegal searches, seizures, or other violations of their constitutional rights. For example, if law enforcement conducted an unlawful search of a suspect’s residence and found incriminating evidence, the defense may argue that the search violated the suspect’s Fourth Amendment rights. This issue arises frequently in identity theft cases that involve computers, phones, or cloud-stored data, and if the court suppresses the evidence, it becomes more difficult for the prosecution to prove its case.

Mistaken Identity

Mistaken identity refers to the possibility that the defendant has been wrongfully accused and someone else committed the conduct. This defense may be supported by alibi evidence, account records, device records, location evidence, witness testimony, or other proof showing that the defendant did not use, transfer, possess, or assume the identifying information at issue.

Challenging the Predicate Felony (Federal Cases)

Because § 1028A depends on a qualifying predicate felony, challenging the underlying charge can directly affect the aggravated identity theft count. If the predicate felony cannot be proven, the § 1028A count may fail as well.

Key Takeaway: Strong defenses may include attacking the knowledge element under Flores-Figueroa, suppressing unlawfully obtained evidence, and challenging the underlying federal charge that supports the § 1028A count.

Legal Help for Aggravated Identity Theft Charges in New York

Aggravated identity theft allegations can create serious consequences, especially when the case involves related fraud charges, federal prosecution, or a mandatory consecutive sentence under federal law. The right defense approach depends on the specific charge, the alleged use of identifying information, and the evidence prosecutors are relying on.

Attorney Jason Bassett can review the allegations, examine whether the state or federal elements are supported, and identify potential defenses based on the facts of the case. He can also address issues involving digital evidence, predicate offenses, plea negotiations, and sentencing exposure.

To discuss your case, contact the Law Offices of Jason Bassett, P.C. at (631) 259-6060. Our office is located at 320 Carleton Ave # 4200, Central Islip, NY 11722. We serve clients throughout Suffolk County and Long Island. 

Frequently Asked Questions

What makes identity theft “aggravated” in New York?

In New York, aggravated identity theft involves the alleged use of a deployed servicemember’s identity and more than $500 in value obtained or financial loss caused.

Is aggravated identity theft a felony in New York?

Aggravated identity theft is a Class D felony in New York. If a prison sentence is imposed, the maximum term is seven years.

What is the mandatory sentence for federal aggravated identity theft?

For a standard § 1028A conviction, the mandatory sentence is 24 months. For a terrorism offense covered by § 1028A(a)(2), the mandatory sentence is 60 months.

Can a judge give probation instead of prison for § 1028A?

Section 1028A does not allow probation for a federal aggravated identity theft conviction under that statute.

Can I be charged under both New York and federal law?

The same conduct may lead to separate New York and federal charges if each system’s legal requirements are met.

What if I didn’t know the identity I used belonged to a real person?

Lack of knowledge or intent may be an important defense issue in a federal case. Under Flores-Figueroa, prosecutors must prove the defendant knew the means of identification belonged to another real person.

Does cooperating with prosecutors reduce my sentence?

Cooperation may affect sentencing in some federal cases, especially if it leads to a substantial-assistance departure. It does not automatically reduce a sentence.

How is aggravated identity theft different from regular identity theft in New York?

Regular New York identity theft charges do not require a deployed servicemember victim. Aggravated identity theft is narrower because it adds the deployed military victim element and the more than $500 threshold.