Justice William Kelly
Bodner moved to dismiss two counts of the indictment accusing him of grand larceny and criminal possession of stolen property. He alleged prosecutors failed to establish a prima facie case regarding the charges claiming they failed to establish that a “credit card” was stolen and that Bodner possessed it. It was alleged that due to a problem with card machines at Bodner’s work, he wrote down the victim’s card number to process a legitimate transaction manually, but later decided to use the number to pay his phone bill. The court noted Penal Law §155.00(7) defined credit card as any instrument defined as such in General Business Law §511, thus actual theft or possession of the actual card was required to establish fourth degree grand larceny and criminal possession of stolen property. The definition of credit card was expanded by GBL §511-a providing that credit card would also mean any number assigned to the card. Yet, the court stated there were no reported cases determining the applicability of §511-a to the Penal Law, thus it must rely on rules of statutory construction to decide. It stated a credit card number, standing alone, did not constitute a credit card under the Penal Law, which required a tangible object. As such, it granted Bodner dismissal.
