Aggravated Identity Theft in New York

Last updated on June 22, 2023

The increasing prevalence of aggravated identity theft in New York has drawn significant attention to the complexities and intricacies surrounding its legal implications. Allegations of this crime often result in severe penalties and extensive damage to the accused’s reputation. In such scenarios, where the stakes are incredibly high, the help of a strong defense attorney becomes crucial. Aggravated identity theft, with its tangled web of federal and state laws, demands an in-depth understanding of the legal framework and a keen eye for evidentiary detail. It is not a simple matter of “theft” as it might traditionally be understood, but a more complex interaction of privacy rights, digital forensics, and criminal intent.

This is where the experience of a New York identity theft defense lawyer becomes invaluable. These legal professionals can help not only in interpreting the intricate layers of the laws relating to identity theft but also in formulating robust defense strategies for the accused. Experienced New York criminal defense attorney Jason Bassett may be able to guide you through the potentially overwhelming process, providing counsel on your rights and possible courses of action. For anyone facing charges of aggravated identity theft in New York, call the Law Offices of Jason Bassett, P.C. at (631) 259-6060.

Definition of Aggravated Identity Theft

Aggravated identity theft is a more serious form of identity theft where the offender commits additional crimes or causes significant harm to the victim. It is a criminal offense in which an individual knowingly and intentionally acquires another person’s personal and identification information without consent and with the intent to commit a crime. In the context of aggravated identity theft, the criminal act goes beyond obtaining unauthorized access to the victim’s data and typically involves the offender using the stolen information to commit additional offenses, resulting in severe consequences for the victim.

Aggravated Identity Theft under New York State Law

Under New York Penal Law § 190.80-A, aggravated identity theft occurs when an individual intentionally and knowingly assumes someone else’s identity or uses their personal identifying information for fraudulent purposes. This offense becomes particularly serious if the perpetrator is aware that the person being impersonated is a member of the armed forces deployed outside of the continental United States. In such cases, if the perpetrator obtains goods, money, property, services, or uses credit exceeding a total value of five hundred dollars under the military personnel’s identity, or causes financial harm to the impersonated military member exceeding five hundred dollars, it constitutes aggravated identity theft.

Aggravated identity theft is categorized as a Class D felony. Those found guilty of this crime can receive a prison sentence ranging from one to seven years, depending on various factors such as the severity of the offense, the perpetrator’s previous criminal history, and any other relevant circumstances that may aggravate or mitigate the sentence.

It is worth noting that in certain situations, at the discretion of the judge and considering the specific details of the case, some offenders may be eligible for alternative sentencing options like community service or probation as alternatives to imprisonment.

New York identity theft defense lawyer

Aggravated Identity Theft Under Federal Law

The United States established the law of aggravated identity theft in 2004, as outlined in 18 USC 1028A. This law makes it illegal to utilize someone else’s identifying information under two circumstances. Firstly, it is prohibited when connected to specific federal crimes, and secondly, when linked to acts of terrorism.

According to Section 1028(a)(7), identity theft occurs when an individual intentionally acquires, possesses, or uses another person’s identification details without lawful permission, with the intention to assist, encourage, or commit any illegal activity that violates Federal law or qualifies as a felony under relevant State or local law.

Under the provisions of 18 USC 1028A, federal courts are required to impose a mandatory two-year prison sentence on the defendant, to be served consecutively after the sentence for the primary crime. The sentencing guidelines for such cases are provided in Section 1028(b). This law prohibits judges from allowing the sentences to run concurrently; instead, they must order the sentences to be served successively. Therefore, regardless of the sentence for the primary crime, an individual convicted of aggravated identity theft must serve an additional two-year term following the completion of the original sentence.

Moreover, federal law prohibits judges from reducing the sentence for the primary crime to accommodate the extra two-year sentence for aggravated identity theft. The only exception to this rule applies when a defendant has multiple convictions for aggravated identity theft. In such cases, each additional two-year sentence can be served concurrently, but only after the completion of the sentence for the primary crime.

Penalties for Aggravated Identity Theft

Aggravated identity theft occurs when an individual knowingly and intentionally uses another person’s identity to commit a felony under state or federal law. The penalties for aggravated identity theft vary and often depend on the specific facts of each case. 

New York State Penalties

Identity theft, categorized as a Class D felony when classified as a first-degree or aggravated offense, is a grave matter that carries significant legal consequences. These offenses are considered highly serious due to the immense impact they have on the lives of the victims. The law mandates strict punishments for such acts, including the possibility of imprisonment. In the most severe instances, individuals found guilty may face a maximum prison sentence of seven years, underscoring the gravity of these crimes and their potential long-term ramifications.

In addition to potential incarceration, substantial financial penalties are imposed on those convicted of identity theft. The exact amount of the fine, which can go up to $5,000, depends on the severity of the offense and the surrounding circumstances. Alternatively, if the defendant has profited substantially from their criminal actions, the fine may be doubled to match their ill-gotten gains. This provision aims to discourage potential offenders by ensuring that they could end up paying considerably more than what they unlawfully acquired.

Federal Penalties

The sentencing guidelines for aggravated identity theft, outlined in 18 U.S.C. 1028A, differ from those applied to most federal offenses. Instead of a range of potential sentences, this particular crime carries a fixed sentence. For a foundational felony offense, the punishment for federal aggravated identity theft is 24 months. However, if the crime is connected to federal terrorism, the penalty escalates to 60 months.

Additionally, it’s important to note that the prison term for aggravated identity theft is served consecutively with any other sentence. In other words, if an individual is convicted of federal aggravated identity theft along with another crime, they must first complete the sentence for the additional crime before serving the 24 or 60 months for Aggravated Identity Theft as stipulated in 18 U.S.C. 1028A.

This differs from the typical approach for multiple sentences in federal crimes, where sentences are usually served concurrently, meaning they are served simultaneously.

Defenses to Aggravated Identity Theft Charges

Aggravated identity theft is a serious crime with severe penalties. It occurs when someone knowingly uses another person’s identification with the intent to commit a felony or when someone illegally uses another person’s identification information to obtain something of value. Several defenses can be used to fight these charges, including lack of knowledge or intent, consent of the victim, police misconduct or constitutional violations, and mistaken identity. 

Lack of Knowledge or Intent

A vital element in prosecuting aggravated identity theft is proving that the accused had knowledge of the crime and intended to commit it. A defense attorney may argue that their client did not realize they were using someone else’s identifying information or did not have the intent to commit a crime while using the stolen identity.

For example, a person may have unknowingly received a credit card issued in someone else’s name and used it without realizing it belonged to another person. In this case, the defendant’s lack of knowledge or intent could be used as a viable defense against charges of aggravated identity theft. Additionally, if a person was coerced into committing the fraud or was unaware that what they were doing was a crime, it could be argued that they did not have the requisite intent.

Identity theft charges can be defended by proving that the alleged victim gave their consent for the use of their personal information. This defense requires evidence that the victim and the defendant had a mutual agreement, which allowed the defendant to use the victim’s identification. If a defendant can show a valid reason for using the victim’s identity and establish that the victim was aware of it, the charges may be dropped or reduced.

However, it is important to note that consent in these cases can be difficult to prove, as it often relies on the credibility of the parties involved. Furthermore, consent does not excuse the defendant from any fraudulent activities or illegal actions taken while using the victim’s identity.

Police Misconduct or Constitutional Violations

Another defense against aggravated identity theft charges involves addressing constitutional violations or police misconduct during the investigation or arrest process. 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. If the court agrees, the evidence could be suppressed, making it more difficult for the prosecution to prove its case.

Mistaken Identity

Mistaken identity refers to the possibility that the defendant has been wrongfully accused of committing aggravated identity theft, and someone else is the actual perpetrator. A defendant can argue that they have been mistakenly identified as the person who committed the crime, which could be supported by providing an alibi or disproving the prosecution’s claims.

In some cases, identity theft crimes can be committed by the true criminals using the defendant’s personal information rather than the victim’s. Demonstrating that this occurred can help eradicate the defendant of the criminal charge.

Defenses to Aggravated Identity Theft Charges Details
Lack of Knowledge or Intent Accused unaware or lacked intent to commit a crime using stolen identity.
Consent of the Victim Proving victim’s consent for use of personal information by defendant.
Police Misconduct or Constitutional Violations Challenging admissibility of evidence due to constitutional violations or police misconduct.
Mistaken Identity Defendant wrongfully accused, providing alibi or disproving prosecution’s claims.

Getting the Help of a Skilled New York Identity Theft Defense Lawyer

Aggravated identity theft is a complex offense with significant potential consequences, especially in a vast and interconnected city like New York. The allegations and subsequent legal proceedings surrounding this crime can be extremely intricate, placing the accused in a vulnerable position. 

In such situations, the importance of seeking the help of a competent criminal defense lawyer in New York cannot be emphasized enough. Skilled New York identity theft defense lawyer Jason Bassett may be able to advocate for you, offering counsel, and meticulously examining the prosecution’s case. Contact the Law Office of Jason Bassett, P. C. at (631) 259-6060 to schedule a consultation.

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