The People, Appellant,v.Kerri Roberts, Respondent.BriefN.Y.March 22, 2018To be argued by APL-2016-00204 JOHN VANG (15 minutes requested) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - KERRI ROBERTS, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT Robert S. Dean Attorney for Defendant-Respondent Center for Appellate Litigation 120 Wall Street New York, NY 10006 Tel (212) 577-2523 Fax (212) 577-2523 JOHN VANG Of Counsel JUNE 13, 2017 TABLE OF CONTENTS TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATUTE INVOLVED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Prosecution’s Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Motion For Trial Order of Dismissal. . . . . . . . . . . . . . . . . . . . . . . 5 Verdict.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Sentence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Appeal To the Appellate Division. . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 UNDER THE IDENTITY THEFT STATUTE, “ASSUMES THE IDENTITY OF ANOTHER PERSON” IS A DISCRETE ELEMENT THAT MUST BE SEPARATELY PROVED FROM, INTER ALIA, “USING PERSONAL IDENTIFYING INFORMATION OF THAT OTHER PERSON.”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. The statute is clear on its face: “assumes the identity of another” is a separate and distinct element of identity theft.. . . . . . . . . . . . . . 9 i B. The prosecution’s interpretation of the identity theft statute is inconsistent with its Legislative intent as reflected in the legislative history.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 C. If this Court concludes that the statute is susceptible to both interpretations, it should resolve doubts in favor of Roberts.. . . 27 D. Under the Appellate Division’s interpretation of the statute, evidence of identity theft was legally insufficient, because Roberts did not assume Kelly Fermoyle’s identity.. . . . . . . . . . . . . . . . . . . . . . . . 29 CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 WORD-COUNT CERTIFICATION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 ii TABLE OF AUTHORITIES STATE CASES Cohen v. Lord, Day & Lord, 75 N.Y.2d 95 (1989).......................................................................................... 10 People v. Barden, 117 A.D.3d 216 (1st Dept. 2014). ............................................................. Passim People v. Dethloff, 283 N.Y. 309 (1940).................................................................................... 11, 12 People v. Finnegan, 85 N.Y.2d 53 (1995).......................................................................................... 10 People v. Golb, 23 N.Y.3d 455 (2014)........................................................................................ 27 People v. Gottlieb, 36 N.Y.2d 629 (1975)........................................................................................ 27 People v. Harper, 75 N.Y.2d 313 (1990)........................................................................................ 27 People v. Roberts, 138 A.D.3d 461 (1st Dept. 2016). ............................................................. 3, 8, 29 People v. Thompson, 26 N.Y.3d 678 (2016).................................................................................. 27, 29 People v. Yuson, 133 A.D.3d 1221 (4th Dept. 2015)...................................................................... 9 Rosner v. Metropolitan Property and Liability Ins. Co., 96 N.Y.2d 475 (2001)........................................................................................ 10 iii FEDERAL CASES TRW Inc. V. Andrews, 534 U.S. 19 (2001). ........................................................................................... 11 United States v. Bass, 404 U.S. 336 (1971). ................................................................................... 28, 29 United States v. Santos, 553 U.S. 507 (2008). ......................................................................................... 28 STATUTES C.P.L. § 450.90(1). .............................................................................................. 2 McKinney’s Statutes § 231. .............................................................................. 10 Penal Law § 60.27. ............................................................................ 4, 19, 20, 24 Penal Law § 120.14. .......................................................................................... 13 Penal Law § 150.05(1). ..................................................................................... 13 Penal Law § 155.30. .......................................................................................... 24 Penal Law § 170.25. .................................................................................. 1, 6, 24 Penal Law § 178.26(1). ..................................................................................... 15 Penal Law § 190.25. .......................................................................................... 16 Penal Law § 190.77. .......................................................................... 4, 12, 16, 20 Penal Law § 190.78. .......................................................................... 9, 19, 20, 21 Penal Law § 190.79. .................................................................................. Passim Penal Law § 190.80.. ......................................................................... 9, 19, 20, 21 iv Penal Law § 190.81. .................................................................................. Passim Penal Law § 190.82. .................................................................................. Passim Penal Law § 190.83. .................................................................................. Passim Penal Law § 215.40. .......................................................................................... 14 Penal Law § 230.34. .......................................................................................... 15 OTHER AUTHORITIES New York Bill Jacket, 2002 A.B. 4939, Ch. 619.............................................. 18 New York Bill Jacket, 2008 S.B. 8376, Ch. 279. ............................................. 18 Senate Commission on Investigations, Taxation and Government Operations, “Identity Theft: Is Your Identity Safe?” at 3 (June 2000). ......................... 21-22 Sponsor’s Memorandum to the 2002 Legislation. N.Y. Spons. Memo, 2002 Ch. 619 . ................................................................................................................... 19 William C. Donnino, Practice Commentary, McKinney’s Cons. Laws of N.Y., Book 39, Penal Law § 190.77. .......................................................................... 16 v COURT OF APPEALS STATE OF NEW YORK ----------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : -against- : KERRI ROBERTS, : Defendant-Respondent. : ----------------------------------------------------------------------x PRELIMINARY STATEMENT By permission of Hon. Eugene F. Pigott, granted November 1, 2016, the People appeal from an order of the Appellate Division, First Department, dated April 7, 2016, that unanimously modified a judgment of the Supreme Court, New York County (Hayes, J.), rendered on June 7, 2013, convicting Kerri Roberts, after a jury trial of two counts of criminal possession of a forged instrument in the second degree (Penal Law § 170.25) and one count of identity theft in the second degree (Penal Law § 190.79(3)). Roberts was sentenced, as a second felony offender, to concurrent, indeterminate terms of three-to-six years on the forged instrument counts and two-to-four years on the lesser count. The Appellate Division vacated and dismissed the lesser count of identity theft. 1 On February 9, 2017, this Court assigned Robert S. Dean, Center for Appellate Litigation, as counsel. Mr. Roberts has not moved for a stay and is incarcerated pursuant to a different judgment. He had no co-defendants below. This Court has jurisdiction to entertain this appeal and to review the questions involved. See C.P.L. § 450.90(1). QUESTION PRESENTED Whether, under the identity theft statute, “assumes the identity of another person” must be separately proved from, inter alia, “using the personal identifying information of that other person.” Penal Law § 190.79. STATUTE INVOLVED Penal Law § 190.79(3) provides, in relevant part: A person is guilty of identify theft in the second degree when he or she 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 felony. SUMMARY OF ARGUMENT This People’s appeal concerns the sufficiency of second-degree identity theft, a lesser count of the indictment for which Kerry Roberts was sentenced to 2 a shorter, concurrent prison term. Specifically, Roberts was accused of, on April 27, 2011, tendering a forged credit card in an (ultimately unsuccessful) attempt at purchasing over $1,000 worth of sneakers and two hats at a Champs Sports store. The credit card number on that card belonged to Kelly Fermoyle, the complainant. However, the identity that Roberts assumed was “Craig E. Jonathan” (a nonexistent person), whose name was on the credit card and New Jersey driver’s license which he also tendered. Following a jury trial, Roberts was convicted of the top counts of criminal possession of a forged instrument in the second degree (D felonies) as well as identity theft in the second degree (an E felony). The Appellate Division, First Department modified Roberts’s judgment of conviction and dismissed the identity theft count as insufficient but otherwise affirmed the conviction. See People v. Roberts, 138 A.D.3d 461, 462 (1st Dept. 2016). Adhering to its prior decision in People v. Barden, 117 A.D.3d 216, 224 (1st Dept. 2014), rev’d on other grounds, 27 N.Y.3d 550 (2016), the First Department reasoned that the identity theft statute was ambiguous and susceptible to two interpretations. Applying the rule of lenity, the First Department ruled that assumption of identity is a discrete element that must be separately proved. On appeal to this Court, the People dispute the First Department’s interpretation. They assert that it is clear on the face of the statute that a defendant 3 automatically assumes the identity of another person by, as relevant here, using that person’s personal identifying information, or credit card number. However, the prosecution’s reading does not square with the language of the statute. Nor, importantly, does it accurately effectuate the Legislature’s intent. As is evident in the legislative history, and on the face of related statutes, such as Penal Law 190.77, which defines terms in the identity theft laws, and Penal Law § 60.27(4)(b), which authorizes restitution for victims of identity theft, the Legislature understood assumption of identity and, relevantly, use of personal identifying information to be related but distinct elements of the statute’s actus reus. Thus, each must be separately proved. In the alternative, on principles of lenity, ambiguities in the interpretation of this statute should be resolved in Roberts’s favor. STATEMENT OF FACTS1 Trial The Prosecution’s Case On April 27, 2011, at 9:30 P.M., security guards at a Champs Sports store on 42nd Street and Seventh Avenue in Manhattan alerted Gabriel Ortiz, the general manager, to Kerri Roberts, who appeared to be purchasing several pairs of shoes (A252). Ortiz instructed Tashira Orosco, cashier, to double-check 1 Numeric citations preceded by “A” refer to the appellant’s appendix. 4 Roberts’s identification and credit card, since it was a large purchase of eight pairs of shoes and two hats, amounting to $1,079.29 (A47-48). Roberts handed Orosco an American Express card and a New Jersey driver’s license, both displaying the name “Craig E. Jonathan” (A52). Orosco swiped the card but it was not reading; Roberts then asked her to manually punch in the numbers (A52-53, 97-98). Ortiz took the card and placed it under a black light to see if it was real (A256). He also compared it with another customer’s American Express card, and noticed discrepancies (A257, 313-14). Robert Curran, manager of investigations at American Express, opined that the credit card was counterfeit (A380, 383, 384- 89). The credit card number listed on the card belonged to Kelly Fermoyle (A330). Handing the card back to Roberts, Ortiz stated “you and I both know this card’s not good” and told Roberts to leave (A259). However, Roberts allegedly gave the card back to Ortiz, stating that it was his (A259). Ortiz signaled security guards to alert the police and prevent Roberts from leaving (A260, 278). Thereafter, police apprehended Roberts, recovering the forged credit card and state identification card (A116-18, 333, 460). Motion For Trial Order of Dismissal Defense counsel argued that the identity theft count was legally insufficient because the evidence established that Roberts “impersonated” Craig E. Jonathan, 5 not Kelly Fermoyle (A179-80, 495-96). Roberts presented a credit card and state identification card for Craig Jonathan, who was not a real person (A495). Counsel pointed out that the statute’s use of “that other person” which modifies the earlier language (assumes the identity of another “person”)(A495). Because Roberts, pretended to be Craig E. Jonathan, but did not also use his credit card number, the evidence was insufficient (A229, 495). The People argued that because Roberts used Kelly Fermoyle’s personal identifying information, he committed identity theft (A177, 178-79, 223). The court denied the motion (A502). Verdict Roberts was found guilty of the top two counts of criminal possession of a forged instrument in the second degree (Penal Law § 170.25) and the lesser count of identity theft in the second degree (Penal Law § 190.79(3))(A608-10). Sentence Roberts was sentenced as a second felony offender to concurrent terms of 3-to-6 years’ incarceration on the counts of second-degree criminal possession of a forged instrument, and 2-to-4 years’ on the identity theft count (A658-59). 6 The Appeal To the Appellate Division On appeal to the First Department, Roberts, relying on People v. Barden, 117 A.D.3d 216, 224 (1st Dept. 2014), argued, inter alia, that the identity theft conviction was legally insufficient absent evidence that he assumed Kelly Fermoyle’s identity. In Barden, the First Department ruled that legally sufficient evidence of identity theft requires proof both (1) that the defendant engaged in one of the enumerated methods (here, using the victim’s personal identifying information) and (2) thereby assumes the victim’s identity. Id. at 226-27. Barden involved a defendant who, falsely claiming a continued right to do so, charged room and other expenses to his associate’s credit card on file with the hotel. Id. at 222-23. Defendant Barden never claimed to be his business associate, and hotel employees knew that to be so. Id. Analyzing the identity theft statute, the First Department acknowledged that it was susceptible to two interpretations. On the one hand, the statute could be read to suggest that the words following the phrase “assumes the identity of another person” define it. Id. at 226. On the other, the statute could mean that those are the methods by which one can assume another’s identity, but that assumption of identity, in either event, must be the end result. Id. Although, as the court pointed out, it is difficult to imagine a situation where presenting oneself as 7 another would not result in the assumption of that person’s identity, assumption of identity is not necessarily accomplished when a person uses another’s personal identifying information, such as a credit card. Id. at 227. The First Department noted the absence of clear guidance on the matter in the legislative history. Id. at 225. But, attentive to the statute’s express purposes, the First Department interpreted the identity theft statute in accordance with the rule of lenity, ruling that assumption of identity is a discrete element of the offense. Id. at 226-27. Applying that rule in Roberts’s case, the First Department dismissed the identity theft count, finding that while Roberts used the complainant’s credit card number, there was no proof that he assumed her identity; instead, he assumed the identity of a fictitious person. See People v. Roberts, 138 A.D.3d 461, 462 (1st Dept. 2016). 8 ARGUMENT UNDER THE IDENTITY THEFT STATUTE, “ASSUMES THE IDENTITY OF ANOTHER PERSON” IS A DISCRETE ELEMENT THAT MUST BE SEPARATELY PROVED FROM, INTER ALIA, “USING PERSONAL IDENTIFYING INFORMATION OF THAT OTHER PERSON.” A. The statute is clear on its face: “assumes the identity of another” is a separate and distinct element of identity theft. At issue here is the core language of Penal Law § 190.79, which provides that a person commits “identity theft” when: he or she 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.2 The prosecution argues that “assumes the identity of another person” is not a discrete element of identity theft. Instead, the prosecution urges this Court to adopt the Fourth Department’s reasoning in People v. Yuson, 133 A.D.3d 1221 (4th Dept. 2015), that “assumes the identity of another person” is defined by the conduct that follows it, inter alia, using another’s personal identifying information, such as a credit card number (see AB 25-26). 2 The first- and third-degree identity theft statutes share this core language in common. See Penal Law §§ 190.78 & 190.80. 9 The prosecution’s reading of the statute must fail for a number of reasons. First, it runs contrary to canons of statutory interpretation. In analyzing a statute, the paramount goal is to “effectuate the intent of the legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words used.” People v. Finnegan, 85 N.Y.2d 53, 58 (1995). Absent controlling statutory definition, courts must construe ordinary words by “their usual and commonly understood meaning.” Rosner v. Metropolitan Property and Liability Ins. Co., 96 N.Y.2d 475 (2001). Importantly, “meaning and effect should be given to all its language, if possible, and words are not to be rejected as superfluous when it is practicable to give each a distinct and separate meaning.” McKinney’s Statutes § 231; see also Cohen v. Lord, Day & Lord, 75 N.Y.2d 95, 100 (1989). Here, in construing the statute to mean that use of someone’s personal identifying information in itself constitutes an assumption of that person’s identity, the prosecution renders the language “assumes the identity of another person” superfluous. After all, the object offense is “identity theft”—as the statute is titled—not “assumption of identity.” In defining the conduct that constitutes “identity theft,” the statute specifies that one must (1) assume the identity of another and, pertinently, (2) use the personal identifying information of that other 10 person. Thus, on its face, the statute separately designates assumption of identity and use of personal identifying information. Together, they comprise the offense’s actus reus. But they are, nevertheless, distinct elements. However, in asserting that use of another’s personal identifying information constitutes an assumption of that person’s identity, the prosecution asks this Court to rewrite the statute to wipe out half of its actus reus. Thus, according to the prosecution, the statute could easily read as follows, without losing any meaning: a person commits identity theft when “he or she knowingly and with intent to defraud assumes the identity of another person present[s] himself or herself as that other person, or [] act[s] as that other person or [] uses personal identifying information of that other person . . . .” Such interpretation cannot stand. By interpreting the three acts in the statute as defining “assumes the identity of another person,” the prosecution treats the latter as surplusage (see AB 28). However, the identity theft statute specifically includes the language “assumes the identity of another person.” Thus, meaning and effect must be given to those words. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)(courts should be “reluctant to treat statutory terms as surplusage in any setting”)(citation omitted); People v. Dethloff, 283 N.Y. 309, 315 (1940)(reviewing court must proceed “upon the assumption that the Legislature 11 did not deliberately place into the statute a phrase which was intended to serve no purpose.”). Beyond contravening principles of statutory interpretation, the prosecution’s reading does not square with the “definitions” portion of the statute. See Penal Law § 190.77. The definition of “personal identifying information” treats assumption of identity as having meaning and effect separate and apart from use of personal identifying information. See Penal Law § 190.77(1). In particular, the statute defines “personal identifying information,” as, relevantly, “a person’s . . . credit card account number or code . . . that may be used alone or in conjunction with other such information to assume the identity of another person.” Id. (emphasis added). On its face, Penal Law § 190.77(1) distinguishes “use” of personal identifying information from the assumption of identity. In so doing, it evinces that, for example, a credit card number may be a vehicle by which to assume the identity of another (and so whether the credit card was used constitutes separate conduct). But, as the First Department pointed out in Barden, “assumption of identity must be the result of the method used,” 117 A.D.3d at 226 (emphasis added). Thus, as the plain language of Penal Law § 190.77 demonstrates, assumption of identity has a discrete meaning, is not automatically 12 accomplished by the use of personal identifying information, and must be separately proved. Nor does the statute’s structure clearly suggest that a defendant automatically assumes the identity of another when he uses that person’s personal identifying information. First, the statute’s use of “by”—which separates “assumes the identity of another person” from those methods—does not necessarily mean that the clauses preceding and following it define each other. The Penal Law is replete with examples where that is not so. For instance, a person commits arson in the fourth degree “when he intentionally damages a building or motor vehicle by causing an explosion or a fire . . . ” Penal Law § 150.05(1)(emphasis added). Here, “causing an explosion or a fire” (the second clause) does not, on its own, accomplish “damag[e to] a building or motor vehicle” (the first clause). The conduct before and after the “by” are distinct and commission of one does not result in commission of the other. They are different elements that must be separately proved. Similarly, a person commits menacing in the second degree, when he, inter alia, “intentionally places . . . another person in reasonable fear of physical injury . . . by displaying a deadly weapon.” Penal Law § 120.14 (emphasis added). Thus, one can “display a deadly weapon” without placing “another person in reasonable 13 fear of physical injury.” A final example is the crime of tampering with physical evidence, Penal Law § 215.40. Tampering is committed when a person, believing that certain evidence is about to be used in an official proceeding and intending to prevent its use, inter alia, “suppresses [that evidence] by any act of concealment, alteration or destruction. . . ” Id. The concealment, alteration, or destruction of such evidence does not necessarily establish that the evidence has been “suppressed.” That former and latter conduct must be separately proved. Thus, as these examples illustrate, the textual use of “by” in the identity theft statutes does not mean that “assumes the identity of another person” is defined by the clauses that follow it. Further, the identity theft statute’s use of the disjunctive “or” does not establish, as the prosecution argues, that the methods listed in the alternative in themselves define or constitute assumes the identity of another (see AB 27-28). Again, examples from the Penal Law defeat that interpretation. For example, the crime of fraud and deceit related to controlled substances provides that: No person shall willfully (a) obtain or attempt to obtain a controlled substance, a prescription for a controlled substance or an official New York state prescription form, (i) by fraud, deceit, misrepresentation or subterfuge; or (ii) by the concealment of a material fact; or (iii) by the use of a false name or the giving of a false address. 14 Penal Law § 178.26(1)(emphasis added). The three methods separated by the disjunctive “or” do not define the preceding clauses. Thus, for example, one could “use . . . a false name or . . . giv[e] . . . a false address” without having “obtain[ed] a controlled substance.” The methods represent separate and distinct conduct that must be separately proved. And the former is not defined by the latter. Similarly, the sex trafficking statute provides that a person is guilty when he “intentionally advances or profits from prostitution by” (the statute then lists several categories of conduct separated by “or”). See Penal Law § 230.34. Those enumerated and disjunctively separated categories of conduct do not define “advances or profits from prostitution.” Thus, for example, under subsection (1)(a) of that statute, “unlawfully providing [a narcotic drug] to a person who is patronized, with intent to impair said person’s judgment” (an enumerated category of conduct) does not itself establish that the person “advance[d] or profit[ed] from prostitution.” Whether a person ultimately “advanc[ed] or profit[ed] from prostitution” must be separately proved from whether a narcotic drug was “unlawfully provid[ed]” to the person patronized. Similarly, here, the use of the disjunctive “or” does not dictate that the enumerated categories of conduct define the preceding clause “assumes the identity of another person.” 15 Despite how the identity theft statute reads, the prosecution second guesses that the Legislature would have inserted the words “and” or “in order to” if it had intended assumption of identity and use of personal identifying to possess separate and distinct meanings (AB 29-30). But the Legislature accomplished that in the statute’s present form. It separately carved out “assumes the identity of another” and “use of personal identifying information” on the face of the statute. And Penal Law § 190.77, which, again, defines those terms, provides that use of personal identifying information is one of the ways “used alone or in conjunction with other such information to . . . assume the identity of another.” Thus, use of a person’s personal identifying information does not in itself constitute an assumption of that person’s identity. Additionally, the prosecution points out that, if the Legislature had intended “assumes the identity of another” to possess its ordinary meaning, it would have drawn from the pre-existing criminal impersonation statutes (see AB 30). But that is in fact what the Legislature did here. Indeed, the core language of the identity theft statute “parallels the crime of criminal impersonation in the second degree.” William C. Donnino, Practice Commentary, McKinney’s Cons. Laws of N.Y., Book 39, Penal Law § 190.77; see also Penal Law § 190.25 (criminal impersonation committed when one “impersonates another” or engages in conduct 16 “in such assumed character”). Thus, in using “assumes the identity of another,” the Legislature incorporated the concept of impersonation, and particularly, its ordinary meaning, into the identity theft statute as an essential part of the criminal conduct. Understandably, the Legislature did not parrot the exact terminology in the identity theft statutes. The Legislature sought to designate identity theft as a separate offense and did not want confusion with the criminal impersonation statute despite the parallel concepts incorporated therein. True, “‘presenting’ oneself as the other person or ‘acting’ as that other person” (see AB 28-29) may result in the assumption of another’s identity. But that does not mean, as the prosecution argues, that assumes the identity of another need not be separately proved. In fact, even the ordinary meanings of “presenting” oneself or “acting” as another are distinct from assumes the identity of another. A person might “assume the identity of another” by taking preparative steps, such as gathering falsified documentation in the victim’s name. But that is different from the person’s ultimately presenting himself to another or acting as the victim to complete the offense.3 Although related, they are still separate components of the conduct. 3 Notably, “knowingly and with intent to defraud” is a part of mens rea, and, the statute does not spell out “to defraud” as part of the criminal conduct. See Penal Law 190.79. Thus, presenting oneself or acting as another person accomplishes, for the purposes of the identity theft statute, the criminal conduct, which, may also be understood as defrauding. 17 Thus, it is not clear and unambiguous that “assumes the identity of another person” is defined by the phrase that immediately follows it, inter alia, using the personal identifying information of another person. Instead, the statute, on its face, evinces that assumption of identity and use of personal identifying information are related, but separate elements of the object offense of identity theft. The prosecution’s assertions to the contrary are without merit. B. The prosecution’s interpretation of the identity theft statute is inconsistent with its Legislative intent as reflected in the legislative history. Apart from statutory text itself, the legislative history of the identity theft statute belies the interpretation that the use of another’s personal identifying information—specifically, a credit card number—in itself constitutes an assumption of that person’s identity. The Legislature enacted the identity theft statutes in 2002 and later amended them in 2008. See New York Bill Jacket, 2002 A.B. 4939, Ch. 619 & New York Bill Jacket, 2008 S.B. 8376, Ch. 279 (2008 amendments to the identity theft laws adding unlawful possession of skimmer device as part of bump-up provision); L. 2002, ch. 619 (discussing the enactment of the identity theft laws in 2002). Viewing the legislative history of the identity theft and related statutes enacted at the same time makes clear that the Legislature understood assumption of identity and use of personal identifying information to 18 be sibling components of the actus reus of identity theft, but nevertheless separate elements. Indeed, the legislative materials and related statutes reflect that the terms have distinct meanings. See Sponsor’s Memorandum to the 2002 Legislation. N.Y. Spons. Memo, 2002 Ch. 619 (“Sponsor’s Memo”). In the same Chapter as the identity theft and unlawful possession of personal identifying information statutes, the Legislature amended the restitution provisions of Penal Law § 60.27(4)(b), to provide redress for victims of identity theft. See Sponsor’s Memo. Notably, the legislature expanded the definition of “victim” to include “one whose personal identifying information was used or whose identity was assumed,” thereby categorically distinguishing between “assumption of identity” and “use of personal identification.” See id. (emphasis added). More, the revised language in the restitution law specifically applied that distinction to the three identity theft statutes (as opposed to just referring to the unlawful possession of personal identifying information statutes). See Penal Law § 60.27(4)(b)(“the term ‘victim’ shall include . . . an individual whose identity was assumed or whose personal identifying information was used in violation of sections 190.78, 190.79, 190.80”)(emphasis added). Thus, from the Sponsor’s Memorandum defining these newly enacted laws, to the text of the statutes codifying restitution (Penal Law § 19 60.27(4)(b)), identity theft (Penal Law §§ 190.78, 190.79, 190.80) and their related definitions (Penal Law § 190.77), the Legislature has consistently distinguished between use of personal identifying information and assumption of identity, reflecting an understanding that they possess different meanings. It is true, as the prosecution argues, that the Legislature was especially concerned about the harms stemming from stolen personal identifying information (see AB 34-44). But the Legislature addressed those unique harms by enacting, at the same time as the identity theft laws, separate statutes specifically criminalizing the unlawful possession of personal identifying information. See Penal Law §§ 190.81, 190.82, 190.83. In fact, it designated two of the unlawful possession of personal identifying information statutes as felonies, see Penal Law §§ 190.82 (second-degree deemed a Class E felony) & 190.83 (first-degree deemed a Class D felony)—a grading structure that corresponds with the identity statutes, compare Penal Law § 190.79 (second degree-identity theft deemed a Class E felony) & 190.80 (first-degree identity theft deemed a Class E felony). Thus, by enacting parallel statutes in the same Chapter, the Legislature targeted the particular harms, prevailing then, which flowed from stolen personal identifying information. 20 By contrast, in enacting the identity theft statutes (Penal Law §§ 190.78, 190.79, 190.80), the Legislature had a related but different purpose. First, the Legislature sought to declare that “‘theft of identity’ is considered a crime” See Sponsor’s Memo. But it also wanted to ensure that private individuals (not just banks) could seek legal redress as victims. See Sponsor’s Memo. In separately enacting the identity theft laws, the Legislature had in mind the spillover harms—“damaged reputations, bad credit reports and the resource-consuming task of trying to correct the false credit report information”—exacted where a person’s identity is stolen. Id. Indeed, the victim can spend “hundreds of hours and thousands of dollars [spent] to clear their names and restore their credit.” Senate Commission on Investigations, Taxation and Government Operations, “Identity Theft: Is Your Identity Safe?” at 3 (June 2000)(hereinafter “Senate Report”). Thus, the identity theft statutes targeted the fallout, in other areas of life, that results from a person’s having their identity stolen by which use of a victim’s personal identifying information may be a means to accomplish that. For instance, a defendant, assuming a victim’s identity and also using that victim’s credit card or checking account number, might make store purchases one day and the next, take out a car loan in that victim’s name. The harm is tethered to that victim’s identity, and exacting the great expense and time to “clear their names and restore 21 their credit.” See id. at 3 (emphasis added). Those spillover harms do not occur, however, where the victim’s identity has not been assumed. Having created the unlawful possession of personal identifying information statutes, the Legislature did not, as the prosecution suggests, enact the identity theft statutes as a means to catch residual conduct not otherwise reached by the former statutes. Rather, in enacting the identity theft statutes, the Legislature targeted, again, a very specific and larger kind of harm inflicted on a person where a victim’s identity was assumed. The Legislature’s purpose in enacting the identity theft and unlawful possession of personal identifying information statutes should not be conflated. The prosecution’s argument that “the Legislature introduced no provision—other than the crime of identity theft—that criminalizes the use rather than possession of personal identifying information” is a red-herring (AB 37). The unlawful possession of identifying information statutes criminalize possession with the intent to use such information. See Penal Law §§ 190.81, 190.82, 190.83. Although, as the prosecution agrees, one need not use personal identifying information to be guilty of the offense (see AB 37-38), the offense is committed when personal identifying information is ultimately used. Although intent to use and use are not the same, in this case, the former covers the latter. Accordingly, 22 the prosecution’s suggestion that the Legislature created the identity theft statutes to deal with a loophole not already addressed in the personal identifying information statutes is without merit. In that regard, the prosecution warns that if this court does not ratify its interpretation of the statute, Roberts’s “conduct, if not deemed to be identity theft, would constitute” Penal Law 190.81, a misdemeanor despite being “clearly deserving of a more severe criminal sanction” and would be “cold comfort for the large numbers of identity theft victims in this state” (AB 39). Both assertions are disingenuous and wrong. First, Roberts did not escape punishment here. In fact, for the same conduct, Roberts was convicted of more serious felonies for which he was sentenced to significantly more time than the instant, lesser identity theft conviction. In particular, Roberts was convicted of two counts of criminal possession of a forged instrument in the first degree (a D felony) for which he was sentenced to 3-to-6 years incarceration—a significantly greater term of imprisonment than the 2-to-4 that he received on the identity theft conviction. Thus, although Roberts’s conduct did not come within the ambit of the identity theft statute, he was ultimately sentenced to an even longer term of incarceration 23 on higher offenses than the instant offense of which the prosecution now complains. More, other criminal statutes cover this conduct. True, the possession of a single credit card number, where the victim’s identity is not assumed, is a misdemeanor. See Penal Law § 190.81. Of course, a misdemeanor is still a criminal conviction for which a person faces punitive and a lifetime of collateral consequences. However, the use of a victim’s credit card number on a forged credit card exposes the person to felony charges of criminal possession of a forged instrument in the second degree, see Penal Law § 170.25, a greater offense than identity theft in the second degree. And if that person successfully obtains more than $1,000, he faces a conviction of grand larceny in the fourth degree, see Penal Law § 155.30, an E felony—the same grade as the instant second-degree identity theft offense. Additionally, victims would still be entitled to redress under the restitution statute (Penal Law § 60.27(4)(b)), which, again, was enacted at the same time as both the identity theft and unlawful possession of personal identifying information statutes (and covers victims of both crimes). Thus, the prosecution incorrectly suggests that defendants will escape prosecution or victims abandoned if this Court rejects its erroneously broad interpretation of the statute. 24 It goes without saying that, in the vast majority of identity theft cases involving use of a credit card, where conducted in person, the original card is used, and the person, tendering the credit card (containing both the victim’s name and credit card number) both uses the victim’s personal identifying information and impliedly assumes the identity of the victim. In such cases, the core conduct of identity theft would in fact have been accomplished. Additionally, if a person tenders a forged card with the victim’s personal identifying information and assumes that victim’s identity, he would also be guilty of identity theft. The same also holds true in internet transactions. If a person fraudulently inputs the victim’s name to complete a purchase online, that person assumes the victim’s identity. He then completes the crime when he inputs the victim’s credit card number, using the victim’s personal identifying information. Notably, the prosecution fails to point to examples where internet transactions may be completed solely by use of a credit card number without furnishing the victim’s name to complete the transaction. Automated situations are no different. If, at a self check-out terminal, a person uses a victim’s valid credit card (containing both the person’s name and credit card number), he impliedly assumes the victim’s identity, thereby completing the offense. By contrast, a person using a forged credit card where the 25 chip or magnetic strip does not work, as here, would never be able to successfully complete the purchase. Notably, the prosecution points to no examples of automated situations where a person can successfully complete a transaction by manually entering the credit card number. In that unlikely situation, successful completion of the transaction, where the identity was not assumed, still exposes the person to prosecution for unlawful possession of personal identifying information, see Penal Law § 190.81, as well as any of the larceny crimes, see Penal Law §§ 155.25 to 155.43. Adopting the prosecution’s interpretation would sweep in conduct that does not advance the statute’s purposes. Under the prosecution’s reading, if someone used the personal identifying information of an owner, but expressly disavowed the owner’s identity, the person would still be guilty of identity theft. Therefore, for example, a child, using their parent’s credit card without permission (thereby falsely asserting an authority to use the card), but affirmatively stating that they are not the parent, would nevertheless be guilty of identity theft under the prosecution’s reading. In that scenario, where someone clearly proclaims that they are not the owner of the credit card, the harms associated with identity theft (e.g., damaged reputation and costs associated with clearing one’s name and credit report) are not present. Nevertheless, such persons would qualify for prosecution 26 under the People’s theory, which contravenes who and what the Legislature had in mind when it enacted the identity theft laws. In this case, the Legislature intended to target the conduct encompassed in the titled offense—“identity theft.” Because the Legislature understood that assumes the identity of another and use of that person’s personal identifying information refer to distinct concepts, it explicitly wrote both into the statute. Thus, they are separate elements. As the court reasoned in Barden, “[i]dentity theft is a serious issue, to be sure, but we cannot give the statute so broad a reading as to bring defendant’s conduct within its orbit.” 117 A.D.3d at 230 (citing People v. Harper, 75 N.Y.2d 313, 318 (1990)(“[P]enal statutes are to be interpreted according to the fair import of their terms so that penal responsibility is not extended beyond the fair scope of the statutory mandate”) & People v. Gottlieb, 36 N.Y.2d 629, 632 (1975)(holding same)). C. If this Court concludes that the statute is susceptible to both interpretations, it should resolve doubts in favor of Roberts. In the alternative, the rule of lenity calls for resolution of any ambiguity in this statute in favor of Roberts. Indeed, where “two constructions” of a statute “are plausible . . . ‘the one more favorable to the defendant should be adopted in accordance with the rule of lenity.’” People v. Thompson, 26 N.Y.3d 678, 688 (2016)(quoting People v. Golb, 23 N.Y.3d 455, 468 (2014)). “This venerable rule 27 not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed.” United States v. Santos, 553 U.S. 507, 514 (2008)(emphasis added). “[C]learly” means “plainly and unmistakably.” United States v. Bass, 404 U.S. 336, 348 (1971)(citation omitted). Otherwise, “doubts [must be] resolved in favor of the defendant.” Id. at 349. Here, as in Barden, 117 A.D.3d at 224, the People do not dispute that a person must assume the identity of another in order to be guilty of identity theft. Instead, the prosecution insists that the use of another’s personal identifying information automatically results in assumption of that person’s identity and, as Barden acknowledges, the statute is susceptible to that interpretation. Yet, as Roberts has asserted above, it is possible for someone to use the personal identifying information of another without assuming that person’s identity. Thus, as the First Department observed: On the one hand, the legislature may have intended “assumes the identity of another” in the wording of the statute itself, implying that a person necessarily assumes the identity of another person simply by engaging in one of the listed methods. On the other hand, by excluding the phrase from the list of definitions, the legislature may have intended that the methods provided in the body of the statute are ways by which a person can assume another’s identity, but that assumption of identity must be result of the method used. 28 Id at 226. Accordingly, under the rule of lenity, ambiguity between these two interpretations must be resolved in Robert’s favor. See Thompson, 26 N.Y.3d at 688; Bass, 404 U.S. at 348. D. Under the Appellate Division’s interpretation of the statute, evidence of identity theft was legally insufficient, because Roberts did not assume Kelly Fermoyle’s identity. The prosecution asserts that even if this Court agrees that “assumes the identity of another person” is an element that must be separately proved, that the evidence of identity theft was nevertheless legally sufficient under the Appellate Division’s interpretation of the statute (see AB 44-48). However, under the Appellate Division’s interpretation of the statute, it was not. See Roberts, 138 A.D.3d 461, 462. In other regards, the prosecution’s argument is meritless. As the court ruled in Barden, assumption of identity is a discrete element of identity theft that must be separately proved. 117 A.D.3d at 226-27. More, the identity theft statute provides that the identity assumed must match the person who owns the personal identifying information. Specifically, Penal Law § 190.79 enumerates that a person must not only “assume the identity of another person” but also “use[] personal identifying information of that other person” (emphasis added). 29 In light of the foregoing, the conviction of identity theft was insufficient. The prosecution does not dispute that Roberts asserted that he was Craig E. Johnson, an imaginary person whose name appeared on the credit card and the New Jersey identification card. The identity assumed did not, as the Penal Law § 190.79 requires, match the person who owned the credit card number on the same card— Kelly Fermoyle. Thus, by the reasoning in Barden and the structure of the statute, both elements have not been satisfied here. On that alone, the count is insufficient. The prosecution’s argument that Roberts “implicitly assumed” Fermoyle’s identity by using her credit card number (see AB 44-48) merely repackages its earlier argument that the use of a person’s credit card number on its own constitutes an assumption of identity. Again, the prosecution erroneously collapses the elements of “assumes the identity of another” and “use of personal identifying information,” which are discrete elements that must be separately proved. In any event, Roberts never said that the American Express account number was his, only that the (forged) card was “mine”—a statement that, although the prosecution tries now to marshal in favor identity theft, below, it tethered to the forged instrument offenses to show possession (see A529). Thus, the prosecution’s arguments to the contrary are meritless and should be rejected. 30 CONCLUSION THE ORDER OF THE APPELLATE DIVISION SHOULD BE AFFIRMED. Respectfully Submitted, ROBERT S. DEAN Center for Appellate Litigation Attorney for Defendant-Respondent _______________________ JOHN VANG Of Counsel June 13, 2017 WORD-COUNT CERTIFICATION This brief contains 6,416 words. 31