New York Theft and Larceny Lawyers Blog
It’s fairly irrelevant what you call it. Credit Card Fraud, Debit Card Fraud, Credit Card Theft, Debit Card Theft, Identity Theft…the fraudulent obtaining and use of credit card numbers and accounts is so drastic and commonplace, that barring the dollar amount hitting the tens of millions or more, this type of criminal activity is arguably becoming routine (are you listening Target?!). Most New York criminal lawyers would acknowledge that if you possess a stolen credit card or stolen debit card, you could very well face an arrest or indictment for Criminal Possession of Stolen Property in the Fourth Degree (New York Penal Law 165.45[2]). Further, any competent New York criminal defense attorney recognizes that the theft of a physical credit card is chargeable as Grand Larceny in the Fourth Degree (New York Penal Law 155.30[4]). The question that is an interesting one is what if the accused is smart enough not to possess the actual credit card or debit card? What if he or she merely possesses the account numbers? Simply, if you only possess credit card account numbers (or debit card), are you guilty of either Fourth Degree Grand Larceny (NY PL 155.30) or Fourth Degree Criminal Possession of Stolen Property (NY PL 165.45)?
As “luck” would have it, People v. Bodner, #2012-486, NYLJ 1202639616673, at *1 (Sup., RO, Decided January 15, 2014), addresses the exact issue discussed above. That is, if you merely possess a debit card number or credit card number (or steal the same), is your conduct the same in the eyes of the law whereby you can be arrested for Grand Larceny in the Fourth Degree or Criminal Possession of Stolen Property in the Fourth Degree as if you actually possessed the plastic itself?
In Bodner, the defendant did not steal the complainant’s credit card. Instead, the defendant wrote down the number and used it, without permission, to pay a bill. Relevant to determining what felony the defendant committed, the court examined New York Penal Law 155.00[7]. That statute defines “credit card” and describes by referencing New York State General Business Law 511. Pursuant to General Business Law 511, a “‘[c]redit card…includes any credit card, credit plate, charge plate, courtesy card, or other identification card or device issued by a person to another person which may be used to obtain a cash advance or a loan or credit or to purchase or lease property or services on the credit of the issuer or of the holder.” After reading this definition, the statute clearly mentions some form of a card and not solely the numbers embossed or contained on the card.
Wait…hold on….General Business Law 511-a tweaks the above definition. Therefore, according to the prosecution, “[f]or purposes of this article ‘credit card’ shall also mean any number assigned to a credit card.”
In reviewing New York Penal Law 155.00[7] which defines “credit card,” the court looked directly at the statute itself. That is, PL 155.00 references General Business Law 511 specifically and does not mention 511-a. According to the court, “[had the legislature wished to expand the definition of credit card to that contained in GBL []511-a it could have easily done so. The intent not to extend the expanded definition of ‘credit card’ to the Penal Law is also evidenced by the clear language of GBL []511-a which expressly limits the expanded definition to statutes contained within the General Business Law.”
The court further opined that “[t]he definition of credit card within GBL ยง[]11, and by extension, Penal []155.00, requires a tangible object, such as a card. If this were not the case, the expanded definition contained within the later drafted GBL []511-a would have been unnecessary. This requirement of a tangible object is consistent with the asportation element of Grand Larceny and the possession requirement of Criminal Possession of Stolen Property. See People v. Tansey, 156 Misc.2d 233 (Sup. Ct. N.Y. 1992).( Asportation, the movement and removal of property)
Although, as the court recognized, finding that a credit card number is not the same as a credit card, seems illogical (the damage to one’s account and credit does not require the possession or use of the plastic card), the statute is very clear. Could the defendant’s actions in using the credit card number be the basis of a less, equal or more serious crime? Absolutely. Is using a credit card number without permission (but not the actual card) a non-criminal offense? Not likely. However, your actions, even if true, may not satisfy the elements of the crimes charged by prosecutors. According to the Bodner Court, in a circumstance where you merely possess or steal the numbers, Grand Larceny in the Fourth Degree and Criminal Possession of Stolen Property in the Fourth Degree are not valid criminal charges (just be careful of those pesky felonies of Forgery, Identity Theft and related crimes).
To read about New York Grand Larceny, Criminal Possession of Stolen Property, Forgery and Identity Theft Crimes, follow the links found throughout this entry of r review the websites listed below.
Saland Law PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal defense attorneys at Saland Law PC represent clients in all criminal matters including, Credit Card Fraud, Grand Larceny, Criminal Possession of Stolen Property, Forgery and Identity Theft, throughout the New York City region.