Issue before the Court: Whether the language in 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.”

 

Held: The requirement under the identity-theft statute that a defendant assumes the identity of another is not a separate element of the crime

 

CAL Observes: Defendant Roberts attempted to use someone else’s credit card number, stolen from that other person, which Roberts had attached to a card with the name of a fictional person, to make a single purchase of sneakers in a sporting goods store. Under the 2002 identity-theft statute, a person is guilty of first- and second-degree 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], italics added ). The majority held that the italicized statutory language was not an element, but merely a summary or introduction to the three types of acts that violate the statute.

 

While the majority’s concern with identity theft is a valid one, rewriting criminal statutes by omitting statutory language included by the legislature is not the answer. As Judge Wilson points out in his dissent, the results of such judicial editing can be unpredictable and unwarranted. Judge Wilson points out the failings of the majority’s analysis, by among other things, offering a series of hypothetical examples of essentially innocent conduct that would satisfy the majority’s definition of identity theft. Similarly, suggesting that criminal statutes can be rewritten by treating statutory language as non-essential may have unexpected and negative results.