Court of Appeals Gets “Cleaned Up,” and Also Decides an Identity Theft Case

When a thief, or these days a hacker, steals your credit card and uses it, most people call that identity theft.  The New York criminal statutes, however, haven’t been so clear about whether the use another’s personal identifying information, such as their name, bank account, or credit card number, is enough to show that the criminal has assumed the person’s identity. The Appellate Division, First Department has said that merely using another’s personal information, without more conduct actually assuming the person’s identity, isn’t enough for an identity theft conviction. The Fourth Department, on the other hand, disagreed and said that it was.

The Court of Appeals, resolving this conflict, held in People v Roberts (No. 42) and People v Rush (No. 43) that the statutory language of the identity theft statute is clear: use of another’s personal identifying information alone is sufficient for a conviction.  The statute, Penal Law §§ 190.79 and 190.80, is pretty clear. It provides that a person is guilty of identity theft:

“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]).

Using the personal identifying information of another person is enough for a conviction. As Judge Rivera writing for the majority put it:

To establish identity theft in the first or second degree, the People must establish as the mens reathat the defendant knowingly and actually intended to defraud by the actus reusof assuming the identity of another. The statute expressly limits the manner by which a defendant assumes the identity of another to three types of conduct: by presenting oneself as that other person, acting as that other person, or using that other person’s personal identifying information.3Contrary to defendants’ argument, the requirement that a defendant assumes the identity of another is not a separate element of the crime. Rather, it simply summarizes and introduces the three categories of conduct through which an identity may be assumed. In other words, the “assumes the identity of another” language is the operational text that sets forth the actus reusof identity theft, while the three types of acts listed are the legislatively-recognized methods by which a defendant satisfies that element (Opn, at 12).

But what’s really the most important part of this opinion is not what’s in the majority, but what’s in Judge Wilson’s separate opinion concurring in part and dissenting in part. On page 6 of Judge Wilson’s writing, he does something that has never before been seen in a Court of Appeals opinion. He uses the citation signal “cleaned up”:

What’s (cleaned up), you ask? Created by Jack Metzler (@SCOTUSPlaces on Twitter), it’s a now relatively established way for attorneys to indicate in their writing that they’ve altered the form of a quote without changing its substance, and without the overly cumbersome parenthetical that you used to have to include, like (citations, quotations marks, and alteration omitted). It can also be used to eliminate unnecessary string cites to citing or quoting authority in the case you’re citing or quoting. Jack’s piece explaining the need for and use of (cleaned up) can be found here.

With Judge Wilson’s use of “cleaned up,” the Court of Appeals joins a long list of other Courts across the country, including the Fifth Circuit and others, adopting this new approach to clarifying legal writing. Now, it’s time for New York to formally adopt it in the Tan Book to make this exciting event a staple in appellate work and opinions across the entire state.

The Court of Appeals’ opinion can be found here.

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