A Manhattan judge has thrown out an identity theft case, ruling that prosecutors did not adequately demonstrate that the defendants stole the identity of an existing person. “To sustain an identity-theft charge in the absence of evidence that a real person’s identity was assumed would equate identity theft not with criminal impersonation, as the Legislature intended, but with false personation, as the Legislature did not. Whatever other fraud-related charges might validly be pressed for using a fictitious name to obtain a financial benefit or to cause financial loss, such conduct does not constitute identity theft,” New York City Criminal Court Robert Mandelbaum (See Profile), sitting in Manhattan, wrote on Dec. 7 in People v. Debranche, 01881.

In the underlying case, the Manhattan District Attorney’s Office charged Alexis Debranche and Xavier McLaughlin with petit larceny and two counts of third-degree identity theft. Yet each defendant argued the accusatory instrument was facially insufficient. The information alleges the “defendants opened at least one cellular account…in the name of Avi Natanov” while a named complaining witness “knows that neither defendant[']s real name[] matches that of Avi Natanov.” Mandelbaum noted that “the sole allegations” were that the defendants opened accounts under an Avi Natanov, while neither defendant was named Natanov.

The judge noted that, according to Penal Law §190.78[1], individuals commit third-degree identity theft when they “knowingly and with intent to defraud assume[] 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.” Mandelbaum said with the lack of “evidentiary facts” showing Natanov was a real person whose identity had been appropriated—such as a supporting deposition from an Avi Natanov—”the information fails to establish every element of the crime of identity theft.”