Court of Appeals Building. Photo Credit: Rick Kopstein/ALM

ALBANY — The state's Court of Appeals on Thursday heard oral arguments in a pair of cases concerning what evidence is necessary to establish identity theft.

The Appellate Division, First Department in 2016 reversed an identity theft conviction against Kerri Roberts for insufficient evidence. Roberts was arrested after he attempted to use a forged credit card in 2011. The card Roberts used had a valid account number but bore a fictitious name, Craig Jonathan. Roberts also had a forged driver's license with his photo and Jonathan's name.

Roberts was convicted of second-degree identity theft and two counts of possession of a forged instrument, for which he was sentenced to three to six years in prison. The Appellate Division, First Department reversed the identity-theft conviction because, it said, the use of personal identifying information alone is insufficient.

“Rather, the People must show that the defendant both used the victim's personal identifying information and assumed the victim's identity. Here, while the proof was clear that defendant used the personal identifying information of the victim … there was no proof that he assumed the [victim's] identity. Instead, he assumed the identity of a fictitious person.”

The Manhattan District Attorney's Office appealed the case, People v. Roberts, No. 42, to the state's highest court. In a brief filed in last March, attorneys for the district attorney's office said that the evidence at trial “provided the jury with a legally sufficient basis to conclude that [the] defendant” assumed someone else's identity by using someone else's personal information.

“The Appellate Division's interpretation of the identity theft law is at odds with the intent of the Legislature … legislative history, concurrent enactments, and [the] problem that prompted passage of the legislation. From those sources, it is apparent that the Legislature understood that a defendant can assume his victim's identity without having to trick another person into believing that he is the victim,” wrote Assistant District Attorney Philip Morrow.

Roberts' attorney, John Vang of the Center for Appellate Litigation, did not immediately respond to a request for comment.

Penal Law §§190.79 and 190.80, both felonies, state that a defendant knowingly, and with intent to defraud, assumes the identity of another person by presenting him or herself as that other person, by acting as that other person, or by using the personal identifying information of that person to commit a crime. Because Roberts did not actually assume the identity of the victim, there was a gray area.

The court also heard arguments in People v. Rush, No. 43, in which a woman was accused of assuming the identity of another person, identified as S.L., by using his name to deposit forged checks into a fraudulent bank account that had been opened in his name by an unidentified man at a Rochester-area bank without S.L.'s knowledge. Terri Rush was convicted of first-degree identity theft and possession of a forged instrument for which she was sentenced to five years of probation.

The Appellate Division, Fourth Department affirmed the conviction, saying that the defendant's contention that the phrase “assumes the identity of another person” is a discrete element that has to be proved incorrect based on a previous ruling by the court.

Rush, who is being represented by Deena Mueller-Funke, an associate at Buffalo-based Phillips Lytle, and Monroe County Public Defender Timothy Donaher, appealed the Appellate Division's decision, arguing that she did not assume anyone's identity when she deposited the fraudulent check.

In a brief filed by Rush's lawyers in November, they argue that the Court of Appeals should reverse Rush's conviction, and find that assuming someone's identity is a separate element that needs to be established in order to prove the crime of identity theft under the law.