New York Criminal Lawyer Blog

Manhattan District Attorney Cyrus Vance landed himself a solid indictment yesterday. If the number of charges are actually any indication of how solid an indictment is, the 106 counts against Nefertit Garnett and 80 counts against Zoe Walmsely are very telling. Charged with Grand Larceny in the Second Degree, Identity Theft in the First Degree, Criminal Possession of a Forged Instrument in the Second Degree, Scheme to Defraud in the First Degree, and Attempted Grand Larceny in the Second Degree, the defendants are each alleged to have stolen in excess of $100,000 from Chase bank using the identifying information of numerous people.

According to the press release:

"...the defendants conducted multiple bank transactions in their victims’ accounts, including withdrawals, deposits, and the cashing of forged checks. At least one of the victims was impersonated by both GARNETT and WALMSLEY, who each conducted fraudulent bank transactions using the same victim’s name. The investigation is continuing to determine whether there may be further connections between the two defendants."

"GARNETT is charged with identity theft for impersonating at least seven individuals. She conducted at least 35 transactions involving her victims’ bank accounts between October 6, 2009 and March 30, 2010."

"According to her indictment, WALMSLEY is charged with identity theft, for impersonating at least eight different victims. She conducted at least 28 transactions involving those victims’ accounts between February 24, 2009 and March 8, 2010."

Grand Larceny in the Second Degree is a "C" felony punishable by up to 15 years in state prison. Identity Theft if the First Degree, Criminal Possession of a Forged Instrument in the Second Degree and Attempted Grand Larceny in the Second Degree are each "D" felonies punishable by up to 7 years in state prison. Scheme to Defraud is an "E" felony punishable by up to 4 years in state prison. For further information on these crimes follow the highlighted links. For additional information on other Penal Law offenses as well as recent legal decisions and case in the news, please go to the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com

Crotty Saland LLP is a New York criminal defense firm representing clients throughout out the New York City region. Jeremy Saland, one of the two former Manhattan prosecutors who founded the firm, served in the Identity Theft Unit Major Case Section, the predecessor of the current Cyber Crime and Identity Theft Bureau.

Before the dawn of identity theft laws, the crime of Criminal Impersonation, pursuant to New York Penal Law sections 190.25 and 190.26, was the weapon of the assistant district attorney to prosecute fraud crimes related to one's identification or persona in New York. This entry will address the crime of Criminal Impersonation in Second Degree (NY PL 190.25) and Criminal Impersonation in the First Degree (NY PL 190.26). A second entry will address legal decisions applicable to these laws.

Criminal Impersonation in the Second Degree - New York Penal Law 190.25

A person is guilty of Criminal Impersonation in the Second Degree when he:

(1) Impersonates another person. This impersonation must be accompanied by an intent to obtain a particular benefit or, in the alternative, to defraud another person. Although often charged as Theft of Services, pursuant to New York Penal Law 165.15, if one uses a metrocard, for example, of a student or senior citizen, the crime of NY PL 190.25 may be charged.

2. Again, with the intent to benefit or defraud another person, a person pretends to be a representative of a particular organization and acts in that capacity. The type and size of that organization does not matter.

3. (a) A person acts and pretends to be a public servant and, without authority, wears that particular uniform or shield, etc. of that public servant. In the alternative, that person, wrongfully expresses by action or words that he or she is the public servant or acting o their behalf; and (b) acts with intent to induce that person to submit to such pretended or false official authority for the purpose of obtaining funds or to cause the targeted person to act under the fraudulent authority or reliance on the fake public servant.

4. Impersonates another person online with the intent to defraud or obtain a benefit. In the alternative, that person pretends to be a public servant through electronic or online communication to induce that person to follow the authority of the fake public servant or to act in reliance on this pretense.

Criminal Impersonation in the Second Degree is a class A misdemeanor punishable by up to one year in jail.

Criminal Impersonation in the First Degree - New York Penal Law 190.26

A person is guilty of Criminal Impersonation in the First Degree when:

1. He or she acts similar to NY PL 190.25(3) except that the person pretends to be a police officer or a federal law enforcement officer or wears or displays without authority, any uniform, badge or other insignia; and

2. That person acts with the intent to induce another to submit to such pretended official authority or otherwise to act in reliance upon said pretense and in the course of such pretense commits or attempts to commit a felony; or

3. Pretending to be a licensed doctor, physician or other person authorized to issue a prescription, he or she communicates to a pharmacist an oral prescription which is required to be reduced to writing.

Criminal Impersonation in the First Degree is a class E felony punishable by up to four years in state prison.

For further information on the crimes of Criminal Impersonation, please read the second installment of this "primer." Not a direct transcription of the law, a reading of the actual statute and consultation with an experienced New York criminal defense lawyer is necessary to understand the nuances of the statutes as well as the potential criminal defenses that may be available to you.

Founded by former Manhattan prosecutors, Crotty Saland LLP is a New York criminal defense firm representing clients throughout the New York City region.

Only days ago, I published an entry regarding the new Cybercrime and Identity Theft Bureau in the Manhattan District Attorney's Office. Having served as a member of that bureau's predecessor, the Identity Theft Unit, during my seven years as a prosecutor under Robert Morgenthau, I commented on the necessity of such a unit despite my adversarial role as a New York criminal defense attorney. I don't think anyone could argue the significance of this expanded bureau as schemes involving Identity Theft and Computer Crime continue to flourish in New York and beyond.

Although the most recent arrests and allegations stem from the Queens County District Attorney's Office, the purpose of such a unit or bureau has once again been made clear. According to the Queens County District Attorney's Office, twelve individuals, including five employees at PC Richards and Sons, have been arrested and indicted in a fraudulent credit card "bust out" scheme. The 92 count indictment charges Raza Chaudry, Reema Chaudry, Tahir Chaudry, Azadar Chaudry, Zishan Chaudry, Shaheen Akhtar. Hemet Adnand, Mathew Alli, Mohammad Aslam, David Francis, Benzy Jonny and Sheikh "Naveed" Zaheer with crimes including Grand Larceny, Criminal Possession of a Forged Instrument, Falsifying Business Records and Offering a False Instrument for Filing. Although they are not charged with the technical crime of Identity Theft, it is alleged that the "bust out" scheme involved stolen social security numbers. According to the Queens District Attorney's Office, a search warrant resulted in the recovery of "Pakistani passports belonging to several of the defendants and bearing multiple names and dates of birth, blank Social Security cards, Canadian and New York driver’s licenses and binders containing in excess of 300 credit cards."

Briefly, a "bust out" scheme involves transactions on a credit car where the credit card is "swiped" and a transaction is completed. The credit card company pays the merchant for the transaction or purchase. There are numerous variations going forward. For example, a "collusive merchant" may be aware that the card swiped is fraudulent. However, the merchant will get paid by the credit card company and claim he sold the items and he should not be at a loss because he did not know the card was fraudulent. Therefore, the merchant keeps the money from the alleged legitimate transaction without selling anything and shares the fee with fake buyer.

Another variation is alleged in this case. It appears that fraudulent checks were used to increase credit lines on credit cards. In an example of this, an individual takes out a credit card in another person's name without their permission, or in some circumstances pays that person to use their information. Sometimes legitimate transactions are made thereby raising the credit of the card over time. At some point a payment is made to the credit card, but with a bad check. Because of relaxed regulations, once the check hits the account and before there is a determination that the check is "good," the credit card company credits the account in the amount of the check. Therefore, there is a window of time before the check bounces that the credit card balance is falsely lowered. During this time, the fraudster can make further purchase. Once the credit card company realizes is, the items are gone. This cycle often continues with fake checks until a credit card with a limit of $5,000 is "busted out" in the amount of $25,000. Often times these schemes are not one or two credit cards, but a network of individuals with dozens or hundreds of credit cards. As a prosecutor in Manhattan, I led a similar investigation with the Secret Service into a particular scheme involving well north of 100 credit cards with "bust out" fraud in the multiple millions.

Continue reading "Queens Identity Theft & Credit Card "Bust Out" Scheme Results in Indictment of Five PC Richards Employees" »

According to a Manhattan District Attorney's Office press release, the New York County District Attorney has announced the formation of another "new" bureau. District Attorney Vance's Cybercrime and Identity Theft Bureau technically ratchets up the current Identity Theft Unit to formally add the investigation and prosecution of cybercrime. In reality, many of the prosecutors assigned to the Major Case Section of the Identity Theft Unit had already been investigating and prosecuting these crimes. However, District Attorney Vance is taking the necessary steps to expand the unit into a bureau. Additionally, District Attorney Vance is increasing the number of prosecutors who will "specialize" in this area while further training them in this dynamic area of criminality and law.

From the perspective of law enforcement, a bureau such as this is a much needed arm of the District Attorney's Office. The original unit, founded by two outstanding attorneys and prosecutors no longer with the office, was on the forefront of cybercrime and identity theft investigations when it was created in 2004. Having been one of the original prosecutors assigned to the Identity Theft Unit and the Major Case Section upon their respective creations, I not only learned from these two prosecutors and obtained training in forensics and the investigation of computer crimes, but witnessed firsthand the ease by which these crimes were perpetrated and the creativity of those who sought to benefit from this criminality. The transition of this unit into the new bureau not only displays District Attorney Vance's recognition of the magnitude of these types of crimes, but is a testament to the dedication, work and efforts of the two founders of the unit as well as those currently working there, to bring the Manhattan District Attorney's Office into the new era of identity theft and cybercrime investigations.

As a criminal defense attorney in New York with extensive experience in these types of crimes, I recognize I will have an adversarial role with the bureau representing my clients and zealously advocating for them regardless of the fraud they stand accused of. Despite this adversarial relationship, from the perspective of an everyday New Yorker, I also acknowledge that District Attorney Vance is doing a service to Manhattan and beyond by taking the old unit into the next generation of cybercrime and identity theft investigations.

For more information on Identity Theft and Computer crimes please follow the respective links.

Crotty Saland LLP is a New York criminal defense firm representing clients throughout the New York City region. Crotty Saland LLP was founded by two former Manhattan prosecutors.

Manhattan District Attorney Cyrus Vance, Jr. announced the arrest and indictment of Steven Mandala, a former stockbroker with the Maxim Group and Merrill Lynch. According to the District Attorney's Office, Mr. Mandala stole $780,000 from Merill Lynch after he allegedly told Merrill Lynch that he was not only a partner at Maxim Group (he was merely an employee stockbroker making $100,000), but that he was in charge of managing $300 million of clients' assets. As a result of his work with Maxim Group, prosecutors allege that Mr. Mandala claimed he generated $1.5 million in revenue. Due to Mr. Mandala's claims, alleged "improvements" to his resume, and his assertion he was compensated in the neighborhood of $765,000 a year by Maxim Group, Merrill Lynch hired the stockbroker and advanced Mr. Mandala $780,000. As a result of his chicanery, which was somewhat less successful, Mr. Mandala was charged with Grand Larceny in the Second Degree, Money Laundering in the Second Degree, Identity Theft in the First Degree, Criminal Possession of a Forged Instrument in the Second Degree and Falsifying Business Records in the First Degree.

Despite Mr. Mandala's alleged claims that he managed $300 million and generated $1.5 million in revenue, it is alleged that Mr. Mandala not only rarely went to work, but that he brought in only $20,000 in new business. During he approximately two months as an employee at Merrill Lynch, it is alleged by prosecutors that Mr. Mandala deposited the $780,000 into his parents' account and purchased a Ferrari under his father's name. Mr. Mandala's employment came to an end when he allegedly sent an email to Merrill Lynch indicating that he was not only resigning, but that all his personal effects should be discarded.

Unfortunately for Mr. Mandala, Merrill Lynch employees did not toss all of his "stuff" and an investigation revealed numerous credit cards in the name of Mr. Mandala's girlfriend in the office. Digging further, prosecutors ascertained that tens of thousands of dollars were allegedly billed to these credit cards without the true owner's knowledge.

Although Mr. Mandala faces up to fifteen years in state prison on the counts relating to Grand Larceny and Money Laundering, seven years in state prison on the counts relating to Identity Theft and Criminal Possession of a Forged Instrument, and four years in state prison on the count relating to Falsifying Business Records, one thing truly stands out. Beyond the alleged magnitude of the theft, were was Merrill Lynch's due diligence? Who failed to verify or confirm Mr. Mandala's history and experience? How does anyone - especially a firm entrusted with clients' hard earned money - fail to contact the prior employer or spend a few dollars on a background check? Where is the oversight? Stop me before I get on a roll...

Crotty Saland, LLP is a criminal defense firm representing clients in white collar criminal cases ranging from alleged embezzlement in the tens of thousands of dollars to multi-million dollar tax fraud schemes. Prior to starting Crotty Saland, LLP, both founding partners served in the Manhattan District Attorney's Office's Trial Division as well as the Special Prosecutions Bureau and Identity Theft Units.

You have been arrested with a print out of checking account numbers or a list of maiden names of ten different people. Although it is crumpled up in your wallet, you had not actually used the information or attempted to use that information. Well, is the mere possession of that personal information a violation of New York Penal Law Section 190.81, Unlawful Possession of Personal Identification Information?

Pursuant to NY PL 190.81, Unlawful Possession of Personal Identification Information:

A person is guilty of Unlawful Possession of Personal Identification Information in the Third Degree 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 or unique biometric data that is a fingerprint, voice print, retinal image or iris image of another person knowing such information is intended to be used in furtherance of the commission of a crime defined in this

Unlawful Possession of Personal Identification Information in the Third Degree is a class A misdemeanor punishable by up to one year in jail.

Now that you have a general understanding, or at least definition, of the crime of Unlawful Possession of Personal Identification Information in the Third Degree, you are ready for more legal analysis after the jump...

Continue reading "Unlawful Possession of Personal Identification Information (NY PL 190.81, 190.82 & 190.83) & Your Criminal Defense: Does New York Law Require the Use of the Personal Information?" »

According to the Westchester County District Attorney's Office, Yves Archin, a home health aide working for a 79 year old woman who recently passed away, was arrested by Ardsley (Westchester County) detectives. It is alleged that Ms. Arching perpetrated Identity Theft and other crimes on an unwitting woman under her care who had suffered from a stroke. According to news sources, Ms. Archin not only used the now deceased woman's credit cards, but opened up fraudulent accounts using her personal information. As a result, it is alleged that Ms. Archin charged approximately $59,000 at stores including Neiman Marcus, Bloomingdales and Target.

According to various news websites, the defendant is charged with Identity Theft in the First Degree (NY PL 190.80). Moreover, Ms. Archin is charged with Grand Larceny in the Second Degree (NY 155.40) for the aggregation of her alleged thefts that exceeded $50,000 and Scheme to Defraud in the First Degree (NY PL 190.65(1)(c). Grand Larceny in the Second Degree is a "C" felony punishable by up to 5 to 15 years in state prison. Identity Theft in the First Degree is a "D" felony punishable by up to 2 and 2/3 to 7 years in state prison while Scheme to Defraud is an "E" felony punishable by up to 1 and 1/3 to 4 years in state prison.

It is interesting to note that the Scheme to Defraud statute was amended in 2008 to include the defrauding of one or more "vulnerable elderly person." According to New York Penal Law 260.30(3) a "vulnerable elderly person” means:

"[A] person sixty years of age or older who is suffering from a disease or infirmity associated with advanced age and manifested by demonstrable physical, mental or emotional dysfunction to the extent that the person is incapable of adequately providing for his or her own health or personal care."

While I have not seen the complaint or indictment (if in fact she has been indicted), something is missing from the various reports. Regardless of the subsection, Scheme to Defraud requires that a defendant have the intent to defraud either ten or more people or more than one person. Although only one person need to be identified, at least two people need to be the target of the scheme. It may be that there is another alleged victim or target or that there is an error in the reporting of this offense or charging of this crime by law enforcement. Unfortunately for Ms. Archin, this potential error would only apply to the Scheme to Defraud in the First Degree, the lowest level offense she is facing.

Founded by two former Manhattan prosecutors, Crotty Saland LLP is a criminal defense firm representing clients throughout the New York City region. Jeremy Saland, one of our attorneys, has extensive experience and training in Identity Theft related crimes having served in the Identity Theft Unit and Major Case Section upon its creation by Robert Morgenthau.

Crotty Saland LLP, a Manhattan based white collar criminal defense firm representing clients throughout the New York City region, is pleased to announce another tremendous result for a client in the arena of fraud and theft allegations. Our client, charged on two separate dockets, allegedly defrauded approximately $35,000 from one individual and approximately $35,000 from a second individual. Prosecutors charged our client with twenty-five felonies in the two criminal court complaints including Grand Larceny in the Third Degree (NY PL 155.35), Forgery in the Second Degree (NY PL 170.10), Criminal Possession of a Forged Instrument in the Second Degree (NY PL 170.25) and Identity Theft in the First Degree (NY PL 190.80). Prosecutors alleged that our client stole these monies through drafting checks without permission and using credit cards, including a corporate business card, without authority to do so.

Despite the large value of the alleged theft, approximately $70,000 between two people, Crotty Saland LLP attacked the veracity of one of the complainants as well the length of time between the incident and the reporting of the theft. Moreover, investigation revealed that this complainant may have been trying to "hide" money from his spouse. After further investigation and challenging the prosecution regarding their ability to prove the $35,000 theft beyond a reasonable doubt, prosecutors dismissed all of the charges.

Although we were not as successful with the second felony case as we were with the first case, Crotty Saland LLP negotiated a tremendous disposition on the second matter as well. In the second case, prosecutors agreed to a misdemeanor plea for Petit Larceny (the "shoplifting" statute) as well as Criminal Possession of Stolen Property. Although the complainant and prosecutors presented us with documentation for a significant portion of the $35,000 as well as a signed stipulation by our client that she in fact owed these monies, we successfully argued that despite the admission and documentation, the facts of the case would establish that the complainant was not being forthright. Even if true, the value of the alleged loss was exaggerated and our client signed the agreement under duress. Fortunately, through our investigation and diligence, we were able to corroborate our position thereby weakening the ability of the prosecution to prove the theft and the loss amount beyond a reasonable doubt. After all of our efforts working with our client for over a year to avoid a felony or jail, the court sentenced our client on the misdemeanor plea to three years of probation (no jail) and $20,000 in total restitution.

As this client learned, each case is unique and requires its own analysis and defense. Whether it takes one month or one year, some felony fraud cases can be negotiated to a lesser offense while others ultimately may not. Furthermore, some cases may require a trial to prove one's innocence where a real risk may be present of a conviction and accompanying jail. Whatever result you are seeking and whether or not it is actually attainable, it is imperative that your counsel be a knowledgeable and a zealous advocate who keeps you informed throughout the process as it unfolds.

He may have loved the book, theatrical performance or even the movie, but Manhattan District Attorney Robert Morgenthau is not a fan of real life Oliver Twists. According to reports, the New York County District Attorney's Office unsealed a 639 count indictment involving the arrests of 15 alleged pickpocket crew members. The defendants, including Arthur Franklin, Jospeh Simms, Vincent Franklin, James Mannix, Kathleen Miller, Carol Dibitetto, Larry Ford, Kandra Lysland, Tina Barboza, Mary Bennett and Yvonne Harris are alleged to have stolen over $600,000 and compromised at least 60 bank accounts. The 639 count indictment includes numerous felonies such as Grand Larceny, Identity Theft, Criminal Possession of a Forged Instrument, Conspiracy, Scheme to Defraud, Attempted Grand Larceny, Forgery and Criminal Possession of Stolen Property. It is interesting to note that prosecutors did not charge the defendants with Enterprise Corruption. While there could be numerous reasons, it is possible that the crew had no ascertainable structure, but was alleged to be more consistent with a loose knit band of thieves. Regardless, the scheme is purported to have operated for at least one year before the arrests and indictments.

According to the District Attorney's Office, vigilant investigators at Chase Bank reviewed video surveillance of fraudulent transactions and noticed a common theme of women wearing wigs and glasses. Further investigation revealed that Arthur Franklin, Vincent Franklin and Joseph Simms were present either inside or outside the bank when the transactions occurred. Chase Bank put the dots together when they learned that many of the victims of the fraudulent bank transactions were also victims of pickpockets.

More than merely a pickpocketing crew that made a quick buck, some of the defendants are alleged to have worked at a Pennsylvania collections agency where victims' personal information including addresses, social security numbers and dates of birth were harvested and provided to other defendants. With this information, the defendant then conducted their fraudulent transactions. At times, the defendants are alleged to have created fake identifications to appear as if they were in rightful owners of the accounts. All in, the defendants are accused of stealing $600,000 of which $74,000 in cash was recovered in a search warrant along with 200 stolen credit cards in another search warrant.

The defendants have been indicted on various charges, including Conspiracy in the Fourth Degree, Grand Larceny in the Second Degree, Identity Theft in the First Degree, Scheme to Defraud in the First Degree, Grand Larceny in the Third Degree, Attempted Grand Larceny in the Third Degree, Criminal Possession of a Forged Instrument in the Second Degree, Grand Larceny in the Fourth Degree, Attempted Grand Larceny in the Fourth Degree, Identity Theft in the Second Degree, Attempted Identity Theft in the Second Degree, Criminal Possession of Stolen Property in the Fourth Degree, Criminal Possession of Stolen Property in the Fifth Degree, Forgery in the Second Degree, Petit Larceny, Criminal Possession of a Controlled Substance in the Seventh Degree and Criminal Possession of Marijuana in the Fifth Degree.

Grand Larceny in the Second Degree is a class C felony, which is punishable by up to 15 years in prison. Identity Theft in the First Degree, Criminal Possession of a Forged Instrument in the Second Degree, Grand Larceny in the Third Degree, and Forgery in the Second Degree are class D felonies, which are punishable by up to 7 years in prison. Conspiracy in the Fourth Degree, Scheme to Defraud in the First Degree, Attempted Grand Larceny in the Third Degree, Grand Larceny in the Fourth Degree, Identity Theft in the Second Degree, and Criminal Possession of Stolen Property in the Fourth Degree are class E felonies, which are punishable by up to 4 years in prison.

Crotty Saland, LLP is a New York based criminal defense firm representing clients throughout the metropolitan area. The two principals, Elizabeth Crotty and Jeremy Saland, have extensive experience as both criminal defense attorneys and as former Manhattan prosecutors having served in the Special Prosecutions Bureau and Identity Theft Unit respectively.

The Manhattan District Attorney's Office issued a press release involving the arrest and indictment of Adeniyi Adeyemi, a computer technician employed by the Bank of New York Melon. The 138 count Identity Theft and Grand Larceny indictment accuses the defendant of stealing the identities of 150 bank employees while perpetrating a $1.1 million dollar fraud. The fraud and thefts were alleged to have transpired from 2001 through 2009.

It is alleged that the victims of these crimes were many co-workers of Mr. Adeyemi who worked in the information technology group of Bank of New York Melon. According to the Manhattan District Attorney's Office, Mr. Adeyemi "opened over 30 bank and brokerage accounts in their identities with several financial institutions, including E*Trade, Fidelity, Citi, Wachovia, and Washington Mutual. These accounts served as dummy accounts for the purpose of receiving stolen funds. Mr. Adeyemi then stole money from the bank accounts of charities and non-profit organizations and funneled it into the dummy accounts, later withdrawing the stolen funds or transferring them to a second layer of dummy accounts."

Much of the money that Mr. Adeyemi is alleged to have stolen was used to purchase goods and ship them to Nigeria as well as to cover his personal expenses such as rent and credit card bills. Moreover, it is alleged that Mr. Adeyemi purchased $100,000 in USPS money orders after transferring funds through the fraudulent accounts.

According to the District Attorney's Office, the police executed a search warrant at Mr. Adeyemi's apartment on April 30, 2009. There, "investigators found dozens of Bank of New York employees’ credit reports on his computer, along with many other documents containing personal identifying information of more than 150 Bank of New York employees. In a storage locker Mr. Adeyemi rented, the investigative team found notebooks containing hundreds of names, social security numbers, account numbers, and other personal data, along with numerous credit cards in Bank of New York employees’ names. Investigators also recovered $30,000 in cash from Mr. Adeyemi’s apartment. Mr. Adeyemi was arrested in the course of the search warrant execution, and has remained in custody since.

The Grand Jury indicted Mr. Adeyemi on one count of Grand Larceny in the First Degree (punishable by up to 8 and 1/3 to 25 years in prison), 138 counts of counts of Identity Theft in the First Degree (punishable by up to 2 and 1/3 to 7 years in prison), one count of Money Laundering in the First Degree (punishable by up to 8 and 1/3 to 25 years in prison), one count of Computer Tampering in the First Degree (punishable by up to 5 to 15 years in prison), two counts of Money Laundering in the Second Degree (punishable by up to 5 to 15 years in prison), three counts of Grand Larceny in the Second Degree (punishable by up to 5 to 15 years in prison), two counts of Scheme to Defraud in the First Degree (punishable by up to 1 and 1/3 to 4 years in prison), and one count of Unlawful Possession of Personal Identification Information in the Second Degree (punishable by up to 1 and 1/3 to 4 years in prison).

Certainly, it is not favorable to the defendant that a search warrant executed at his home revealed an abundance of personal information belonging to employees of the Bank of New York Melon. Moreover, the defendant's IP address was likely tracked to a particular provider and then ultimately to his account (or an account used by him.) Certainly, others could have had access to his account and computer. Additionally, there are legal arguments to be made and potential challenges to the search warrant. However, regardless of the approach to this case, Mr. Adeyemi has a long road ahead of him and needs to decide the best defense to the accusations and implement that defense immediately.

Crotty Saland, LLP is a white collar criminal defense firm founded by two former Manhattan prosecutors. Jeremy Saland, has extensive experience prosecuting and defending Identity Theft crimes having served in the Identity Theft Unit and the Major Case Section when the unit was founded by Robert Morgenthau.

Follow us on Twitter at DefenseLawyerNY

Throughout New York City, from Manhattan and the Bronx to Queens and Brooklyn, prosecutors have seen an enormous increase in crimes relating to Identity Theft pursuant to New York Penal Law sections 190.78, 190.79 and 190.80. This increase in related crimes has resulted in extensive investigations and indictments of single individuals as well as global organizations such as the Western Express Cybercrime Group and its members Viatcheslav Vasilyev, Vladimir Kramarenko, Egor Shevelev, Dzimitry Burak and Oleg Kovelin. As a former Manhattan prosecutor who was the most senior ADA assigned to the Identity Theft Major Case Section upon that unit's creation, I not only have extensive experience prosecuting and building cases against those accused of Identity Theft crimes, but representing those charged with these offenses as well. Before discussing scenarios involving these offenses, this entry will deal specifically with the crime of Identity Theft in the Third Degree (NY Penal Law 190.78) and the relevant underlying definitions. Future entries will address Identity Theft in the Second (NY Penal Law 190.79) and First Degree (NY Penal Law 190.80).

Here we go...

§ 190.77 Offenses involving theft of identity; definitions.

1. For the purposes of sections 190.78, 190.79 and 190.80 of this article "personal identifying information" means a person's name, address, telephone number, date of birth, driver's license number, social security number, place of employment, mother's maiden name, 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, taxpayer identification number, computer system password, signature or copy of a signature, electronic signature, unique biometric data that is a fingerprint, voice print, retinal image or iris image of another person, telephone calling card number, mobile identification number or code, electronic serial number or personal identification number, 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.

2. For the purposes of sections 190.78, 190.79, 190.80, 190.81, 190.82 and 190.83 of this article:

a. "electronic signature" shall have the same meaning as defined in subdivision three of section three hundred two of the state technology law.

b. "personal identification number" means any number or code which may be used alone or in conjunction with any other information to assume the identity of another person or access financial resources or credit of another person.

Now for the actual crime of Identity Theft in the Third Degree (PL § 190.78) after the jump...

Continue reading "Identity Theft in the Third Degree & Your Criminal Defense: A Legal Definition and Application of New York Penal Law 190.78" »

As a follow up to my earlier post, the Manhattan District Attorney's Office has announced a 227 count indictment of 18 individuals in an identity theft and check fraud scheme. As I correctly noted in the original post, these defendants are alleged to have perpetrated a scheme involving the crimes of Grand Larceny, Criminal Possession of a Forged Instrument, Identity Theft, Conspiracy, Unlawful Possession of Personal Identification Information and Scheme to Defraud. As a former Manhattan prosecutor who was one of the first assigned to the Identity Theft Unit upon its creation, I know the Identity Theft Unit will vigorously and thoroughly prosecute the alleged offenders. Depending on the individual and their applicable charges, the defendants face up to 25 years in state prison.

The defendants include:

Jasper Grayson, a/k/a “Lyte,” James Malloy, a/k/a “Sal” and a/k/a “Sah,” Lamott Matthews a/k/a “L,” Allahson Clay, a/k/a “Reefy,” Albert Paulin, a/k/a “AB,” Lance Paulin, a/k/a “LA,” Alvin Joseph, a/k/a “Scooter," Edward Johnson, Jr., a/k/a “Big Mike,” Larry Garcia, a/k/a “Spanish Larry,” Raymond Penn, a/k/a “Charlie,” Raven Moses, Sheena Poindexter, Renece Razor, Ilaura Walker, Keisha Polonio, Christopher Deboer, Tauheed Mitchell and Kelly Snider.

Prosecutors allege that:

"[T]he defendants obtained personal and bank account information belonging to 500 identity theft victims and used it primarily to manufacture thousands of counterfeit checks. By fraudulently cashing and depositing the counterfeit checks, the defendants stole over $1.4 million from one bank’s accounts and substantial additional sums from other banks. Victims of this scam included private individuals, corporations, religious institutions, hospitals, and schools, as well as city and state government agencies."

It is further claimed that:

"The defendants regularly acquired the necessary data to generate counterfeit checks with the help of bank employees recruited to participate in the operation. These employees, often tellers, had access both to the banks’ computer systems and to large numbers of valid checks processed during legitimate customer transactions. In return for cash payments, the recruited tellers photocopied valid customer checks and printed out copies of customer profiles, which contained the customers’ names, addresses, social security numbers, bank account numbers and account balances."

"Search warrants into two locations associated with the defendants revealed "a desktop computer, blank check stock, stolen customer profiles from various banks, payroll stubs, copies of legitimate checks, hundreds of counterfeit checks, ledgers with names of [individuals who cashed fraudulent checks] and amounts stolen on various dates, check-making software, fake state identification cards and credit cards issued in the names of identity theft victims."

As is the case for each of these defendants, those charged with a crime are innocent until proven guilty. An indictment is not evidence of guilt. However, it is imperative to recognize that an indictment is extremely significant and points towards an intense legal battle ahead for each of these defendants. Regardless of the crime, you should always retain experienced criminal counsel to fight to protect your rights, liberty and integrity. Crotty Saland, LLP is ready and able to do just that.

The white collar criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP have learned that the Manhattan District Attorney's Office will announce the indictment today of 18 people, including accused ring leader James Malloy, in an alleged counterfeit check fraud scheme that utilized forged NYPD checks to perpetrate a multi-million dollar theft.

According to media reports, up to 40 people may have been arrested. It is alleged that the scheme operated by having an individual deposit a forged check into a bogus account. A teller, who was in on the scheme, allegedly provided the fraudsters with accurate account and check information to enable the fraudsters to create the fake checks and deposit them. In all, it is alleged that hundreds of checks were drawn off the accounts of about 20 companies.

When James Malloy was arrested and a search warrant was executed at his home, sources have stated that they found hundreds of counterfeit checks as well as the profiles of customers at banks and the magnetic paper to create the forged checks.

Although the Manhattan District Attorney's Office has not issued a press release and an indictment has not been unsealed as of the time this entry was drafted, I anticipate that some of the charges these individuals will face may include Grand Larceny, Forgery, Criminal Possession of a Forged Instrument, Falsifying Business Records, Identity Theft, Conspiracy and potentially Enterprise Corruption depending on the structure of the organization. More importantly, depending on which charge these people face and their criminal history, a sentence of state prison is a very real possibility.

To better understand the above mentioned charges and to educate yourself on the law, feel free to review the blog and its entries as they apply to Fraud Related Offenses, Identity Theft and White Collar Crimes.

*** UPDATE ***

As a NY criminal defense attorney and a former Manhattan prosecutor under Robert Morgenthau, I have defended or supervised numerous multi-million dollar investigations into Identity Theft, Credit Card Fraud, Forgery, Criminal Possession of a Forged Instrument, Grand Larceny, Falsifying Business Records and related fraud schemes. In fact, prior to starting Crotty Saland, LLP, I was assigned to the elite Identity Theft Unit when it was created by DA Morgenthau in the Manhattan District Attorney's Office. In that capacity I received extensive training and hands on experience in the "trenches" and "front line" of Identity Theft and related crimes.

It comes as no surprise to me that another fraud scheme has reared its head and was ultimately broken up in Queens today. According to the Queens District Attorney's Office, Operation Plastic Pipe Line began in 2007 and resulted in the multiple hundred count indictment for Enterprise Corruption and the arrest of dozens of people. It is alleged that this ring, led by Wole "Shola" Ogunwen, used multiple "cells" to defraud banks and steal the personal identification of thousands of people. In the last year alone, it is alleged that the financial loss exceeded twelve million dollars. To perpetrate the crime, these cells would use counterfeit credit cards, set up fake accounts, withdraw funds from banks and purchase products to be shipped overseas. With strong ties to Nigeria, it is further claimed that this ring operated on a global level.

As a former prosecutor and a criminal defense attorney experienced in these crimes, I know that this twenty one month Identity Theft investigation was likely supported by members of federal and state law enforcement who conducted surveillance, issued subpoenas, executed search warrants and worked relentlessly. I also know that these defendants need to retain experienced criminal counsel or the situation they find themselves in will go from bad to worse.

Consult with your NY criminal defense attorney...credit card and check fraud in New York routinely involves an enormous spectrum of crimes including Criminal Possession of a Forged Instrument, Identity Theft, Falsifying Business Records and Grand Larceny. While these are only a few of the associated crimes in NY, your criminal defense attorney should have the experience and training to navigate you through them. As I recently explained in Part I of this segment, while some of the crimes associated with credit card and check fraud are "only" misdemeanors, some of the offense are much more serious. For the purpose of this entry, I will deal with credit card and check fraud as it relates to a specific theory or subsection of Identity Theft.

To best understand the crime of Identity Theft I am going to pose a hypothetical scenario. In this scenario you go to Kmart with your roommate's debit/credit card. While there, you purchase $20 worth of "stuff," sign her name on the receipt, and take off. Although you did not have her permission you figure its only $20 and it was pretty darn easy...heck, the lady at Kmart didn't even check the signature or your identification.

So...what crimes did you just commit? Without explaining each offense in detail, here is the list of some of the potential crimes: Criminal Possession of Stolen Property in the Fourth Degree ("E" felony) for possessing a stolen credit card since you did not have your roommate's permission, Forgery in the Second Degree ("D" felony) for signing your roommate's signature, Falsifying Business Records in the First Degree ("E" felony) for causing a false entry to be entered into the records of Kmart while you are committing another crime, Petit Larceny ("A" misdemeanor) for stealing the "stuff" and last, the subject of this entry, Identity Theft in the Second and First Degrees ("E" and "D" felonies respectively). And you though that was too easy...

Identity Theft in the First Degree is committed when: a person "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 commits or attempts to commit a class D felony or higher level crime or acts as an accessory in the commission of a class D or higher level felony." Identity Theft in the Second Degree differs in that the felony need only be an "E" felony.

Stepping back for a moment, the Identity Theft charge is "bumped up" to a "D", or "E", felony merely because that while committing the lesser Identity Theft you attempt or commit a "D" felony or greater. To put this in perspective, if you stole $20 worth of things from a store the crime would be a misdemeanor Petit Larceny. Once you add in the credit card that is stolen and you sign that person's name without permission or authority the crime has been "bumped up" to an "E" and / or "D" felony because of the Forgery relating to the signature and the Criminal Possession of Stolen Property relating to the stolen credit card.

While this scenario is an oversimplified description of one particular theory of Identity Theft, it is important to see how serious credit card fraud can be even where the offense seems relatively small. Imagine how much more serious the case would be if the value of the property was greater or multiple credit cards were used in an ongoing scheme. The above scenario is not meant as a guide to the charges you will face or what you should or should not do (well, you should certainly not intentionally defraud anyone!!!!), but at a minimum shed light on those potential charges. Whatever the charges may be, protect yourself and your rights by retaining counsel who not only has handled these matters throughout New York, but has the experience and training as both a criminal defense attorney and former prosecutor. While the best way to avoid getting accused of Identity Theft is to refrain from the conduct described above or any criminal activities, you are always presumed innocent until proven otherwise and you should have someone at your side who is willing and able to advocate for you.

If you are accused of credit fraud in New York, be prepared to spend a significant time with your criminal defense attorney so he or she can outline the potential criminal charges and consequences you may face. The list of crimes is vast...Identity Theft, Forgery, Criminal Possession of a Forged Instrument, Grand Larceny, Falsifying Business Records and many more. As a a former Manhattan prosecutor who was one of the original members of the Identity Theft Unit when the unit was first created, I can tell you that the the crimes relating to credit card fraud are actively and aggressively being pursued every day by members of both state and federal law enforcement.

Credit card fraud comes in various "shapes" and "sizes." From the possession of a stolen credit card or a fake credit card to the use of a credit card that has already been revoked. Depending on whether the credit card is used or attempted to be used, the crimes that may be charged can spiral further into major felonies with serious terms of imprisonment.

Before diving into the gravity of credit card "bust outs," "carding" or other more serious offenses, this entry will deal with a more "simple crime" that most people probably don't even know exists. As stated above, you may be accused of credit card fraud if you merely use a credit card that is in fact revoked and you know that it was revoked.

According to Penal Law 165.17, you are guilty of Unlawful Use of Credit Card, Debit Card or Public Benefit Card "when in the course of obtaining or attempting to obtain property or a service, [you] use or display a credit card, debit card or public benefit card which [you] know to be revoked or canceled." This crime is an "A" misdemeanor punishable by up to one year in jail.

While this offense is on the lower level of crimes relating to credit card fraud, that does not mean that it should be taken lightly. In fact, if you successfully obtain property that is equal to or in excess of $1,000, $3,000 or $50,000, Unlawful Use of a Credit Card is the least of your worries. Now, prosecutors can charge you with Grand Larceny - a felony.

Due to the seriousness of this crime and the potential to unwittingly perpetrate related offenses, if you are accused of credit card fraud seek out criminal defense attorneys with real experience in this area. You may have a valid defense that needs to be explored by criminal defense attorneys who know how to fight these charges. A simple question right out of the gate for Unlawful Use of a Credit Card is did you know that the card was revoked or canceled? If so, how is the prosecution going to prove this charge beyond a reasonable doubt? Is there evidence that you tried to use the card before? Did the credit card company mail you a notice? If not, then it may be that your actions, albeit irresponsible, are not criminal. Whatever the case may be, an experienced criminal defense attorney can put forth the strongest and most credible challenge to make sure that your rights, liberty, and integrity are maintained.

NY criminal defense attorneys should be on notice. The crimes of Identity Theft, Grand Larceny, and Unlawful Possession of Personal Identifying Information have new “friends.” NY criminal defense attorneys and every day citizens should be aware that as of November 4, 2008, New York added additional crimes to the NYS Penal Law. These new offenses, Unlawful Possession of a Skimmer Device in the First and Second Degrees, directly relate to using skimmers to perpetrate certain fraud crimes.

Pursuant to Penal Law 190.85, a person is guilty of Unlawful Possession of a Skimmer Device in the Second Degree when “he or she possesses a skimmer device with the intent that such device be used in furtherance of the commission of the crime of identity theft or unlawful possession of personal identification information.”

Pursuant to Penal Law 190.86, a person is guilty of Unlawful Possession of a Skimmer Device in the First Degree when “he or she commits the crime of unlawful possession of a skimmer device in the second degree and he or she has been previously convicted within the last five years of” Identity Theft, Grand Larceny, Unlawful Possession of Personal Identifying Information or Unlawful Possession of a Skimmer Device.

To better understand what constitutes a skimmer device the criminal law defines such a device as any device “designed or adapted to obtain personal identifying information from a credit card, debit card, public benefit card, access card or device, or other card or device that contains personal identifying information.”

While nobody wants to be the guinea pig to be the first person charged under this new statute, if you find yourself charged with Identity Theft, Grand Larceny, Unlawful Possession of Personal Identifying Information or Unlawful Possession of a Skimmer Device you should retain counsel with real world experience in these matters. Assigned to and as an originating member of the Manhattan District Attorney’s Office’s Identity Theft Unit upon its creation, Jeremy Saland, along with Elizabeth Crotty, has the knowledge and experience to fight these charges. We, at Crotty Saland, LLP, are ready to work alongside you to protect your rights, liberty and integrity.

As a former prosecutor in the Manhattan District Attorney's Office and one of the founding members of the Identity Theft Unit assigned to the unit after it's creation, I investigated large scale Identity Theft, Forgery, Grand Larceny and related crimes in amounts that exceeded millions of dollars both in the United States and elsewhere. Now, as a NY criminal defense attorney, it continues to be readily apparent that the amount of theft and the number of victims impacted by Identity Theft continues to grow in an unprecedented manner and speed.

In fact, only yesterday, eleven people, both in the United States and other nations, were indicted for allegedly stealing more than 40 million credit and debit card numbers form companies including the TJX Companies. Three of those men, Albert "Segvec" Gonzalez, Christopher Scott and Damon Patrick Toey, allegedly hacked into the wireless networks of the TJX Companies (TJ Maxx, Marshall's, Office Max, Barnes and Nobles, and more), and installed "sniffer" programs that captured credit card numbers, debit card numbers and even passwords. Like many individuals who operate this kind of scheme, the numbers, in part, were allegedly sold online and overseas where they were used by third parties and resulted in significant financial loss.

Due to the potential for impacting so many people and causing financial devastation, Identity Theft and fraud related crimes are investigated thoroughly and aggressively by skilled and experienced prosecutors and law enforcement officers on both the state and federal levels. Here in NY, many of those prosecutors and law enforcement officers have received, and continue to receive, hands on training in the means by which Identity Theft, Money Laundering, Forgery, and related fraud crimes are perpetrated and investigated.

While the scope and amount of the alleged criminal scheme conducted by these men may be larger than the "average" case, if you find yourself in any predicament involving the crimes relating to Identity Theft, you should not merely retain any criminal attorney, but a NY criminal defense attorney who has real training and experience defending and prosecuting these crimes.

It does not matter if you are being prosecuted in Manhattan, Bronx, Brooklyn, Queens, White Plains, Mt. Vernon or Yonkers - the law is clear on Forgery and Criminal Possession of a Forged Instrument. Either it is or it is not.

Sounds simple enough, but unfortunately, it may take an experienced criminal defense attorney to ascertain whether the crime prosectors are charging you with is supported by the law. Turning our attention to Forgery and Criminal Possession of a Forged Instrument as it specifically relates to genuinely authorized writings or documents issued by an agency or other person, it is important to note that what seems like a crime often is not.

At bottom, if a person possesses or creates (“creates” in this context means completing by supplying the information and not actually making a new item) this type of instrument using a fictitious name or alias, there is no crime of Forgery or Criminal Possession of a Forged Instrument. The easiest way to understand this rule is if a person, let us say Samuel Clemens, possesses a New York State Driver’s License. In this hypothetical, Mr. Clemens uses his “pen name” (alias or fictitious name) as the listed name on the legitimately issued license. In other words, Mr. Clemens’ license reads “Mark Twain.”

Dealing with the first element, it is clear that this type of instrument is one that is authorized and issued by an agency, i.e., the New York State Government and DMV. Looking at the second issue as discussed above, since the name on the license does not belong to someone else, but is an alias (Mark Twain was the pen name of Samuel Clemens), there is no Forgery or Criminal Possession of a Forged Instrument because supplying an alias is permissible.

Obviously, each case must be reviewed to see if this rule applies, but it really should be just that simple. Unfortunately, prosecutors sometimes misunderstand this rule, dig their heels in, and possibly proceed with their cases.

In New York, Forgery (Penal Law 170.05, 170.10 and 170.15) is a crime that seems obvious and straightforward, but is often far from it. As the most senior member of the first prosecutors assigned to the Manhattan District Attorney's Office Identity Theft Unit and currently a criminal defense attorney, I “lived,” “ate” and “breathed” Forgery, Identity Theft, Money Laundering and other fraud investigations.

The mistake that a criminal defense attorney must look out for is if a prosecutor, from down in the Bronx up to White Plains in Westchester County, is charging Forgery where the document that is allegedly forged is not a genuinely issued document. In other words, the instrument is bogus and fabricated. For example, if an individual creates a New York, Connecticut and New Jersey combination state identification card in their own name, then no Forgery can exist because, in part, such an identification does not exist or establish any rights for the holder. Although this is an outrageous example, the underlying issue is that the forged document or writing cannot be a wholly fabricated or fictitious and in the person’s name.

Generally, whenever the instrument is wholly fake and fabricated by a defendant, forgery cannot be charged. If a person drafts a will or deed that is fake and signs a fake name there is no Forgery. If a counterfeit will or deed is signed with the defendant’s alias there is not Forgery. However, a Forgery can be charged where a defendant uses another’s real name on that bogus will or deed because a real person’s signature is being forged.

This general analysis, along with court decisions and case law, is one that any criminal defense attorney should be armed with and ready to use for your benefit. In the event you are charged with the crime of Forgery, this legal challenge may be an avenue for your vindication.

You are charged in Manhattan with Identity Theft (Penal Law Sections 190.78, 190.79, and 190.80) or Unlawful Possession of Personal Identification Information (Penal Law 190.81, 190.82 and 190.83), but you reside in Brooklyn and the alleged criminal transactions occurred in the Bronx, White Plains and Yonkers. Well, how is the Manhattan (New York County) District Attorney’s Office prosecuting you for these crimes if you never stepped one foot in that jurisdiction? The answer, albeit not a pleasing one, is simple.

Criminal Procedure Law Section 20.40(4)(l) permits any county to prosecute an offense of this nature if any of the offense took place in that county regardless of whether the defendant was actually present there. Moreover, if the victim who suffered financial loss resided in that county at the time of the criminal transaction, then the county where the victim resided would also be able to prosecute a defendant even if the defendant was never present. Lastly, even if the victim suffered no loss, whatever county the victim resided in at the time his or her personal identifying information was used would also be a viable location to bring the criminal action against the defendant. For example, if a victim’s credit card is used online to purchase clothes from Bloomingdales in NY, the victim resided in the Bronx at the time his or her information was used, and the defendant used the information on his computer in Queens, each county would be able to prosecute the defendant for the crime of Identity Theft.

As a former prosecutor under Robert Morgenthau with the Manhattan District Attorney’s Office, Jeremy Saland was one of the original prosecutors assigned to the Identity Theft Unit upon its creation and worked under a state grant to prosecute this crime. Due to the complexity of these crimes it is important to obtain counsel with significant real hands on experience in these areas of law and not merely someone who has limited involvement. It takes an aggressive and skilled attorney to find any possible issues relating to evidence and procedure that may assist you in getting the best possible disposition in this type of matter.