stack of credit cards
stack of credit cards ()

Stealing another person’s credit card number is not, by itself, identity theft, a unanimous state appeals panel has ruled, though the number does count as stolen property.

The Appellate Division, First Department, ruling Thursday in People v. Barden, 2448/10, means that a man convicted of identity theft in 2011 and sentenced to 2 1/3 to 7 years will be released from state custody. The man, Scott Barden, has already completed shorter concurrent sentences for lesser convictions.

Justice Rolando Acosta (See Profile) wrote the opinion, joined by Justices John Sweeny (See Profile), David Saxe (See Profile), Karla Moskowitz (See Profile) and Darcel Clark (See Profile).

Barden was convicted of stealing the credit card information of another man, Anthony Catalfamo. The two met in 2009, and Catalfamo enlisted Barden to work on a development deal in the Bahamas.

In February 2010, Catalfamo agreed to cover Barden’s expenses while he was staying at a Thompson LES Hotel in Manhattan and gave his credit card information to the hotel. Catalfamo arranged for the hotel to charge up to $2,300 to the card, but no more. Barden, who was on good terms with Catalfamo at that time, also told the hotel staff that the card was not to be charged more than $2,300.

The hotel, however, failed to attach this billing agreement to Barden’s profile on its computer, and during Barden’s first stay there it charged slightly more than $2,300 to the card.

Soon after that, Barden and Catalfamo’s business relationship “soured,” according to the decision. Catalfamo was disappointed in their progress on the Bahamas development and refused to pay for any more of Barden’s expenses. In March 2010, however, Barden checked into the hotel again and charged his expenses to Catalfamo’s card, which was still on file.

Barden briefly checked out of the hotel in late March, but checked back in on March 30 and stayed for six weeks, until he was arrested.

In mid-April, Catalfamo found over $10,000 of charges on his card and disputed them with the card company, American Express. AmEx declined all the charges to the card made after February.

Barden was able to stay another month, however, because of another error by the hotel. The director of the hotel’s front office ran into him and told him about the declined charges. She mentioned that the hotel also had a Visa card “on file” for him and asked if he wanted that charged instead. Barden said yes. In fact, the Visa card belonged to a completely unrelated person named Mark Barden.

On May 14, Visa declined all of those charges as well, and the hotel’s office director called the police, who arrested Barden. In total, the hotel did not get paid for about $50,000 worth of services because of the declined charges, according to the decision.

Barden was charged with identity theft; possession of stolen property, namely Catalfamo’s credit card information; and two counts of theft of services. Following a jury trial before Manhattan Acting Supreme Court Justice Juan Merchan (See Profile), he was sentenced to concurrent terms of 2 1/3 years to 7 years for identity theft, 1 1/3 to 4 years for possession of stolen property, and 1 year for each theft of services count.

On appeal, he argued that simply using someone else’s credit card was not enough to establish identity theft, and that a credit card number did not count as stolen property.

The First Department panel agreed. The decision, Acosta wrote, required interpreting New York’s 2002 identity theft law.

The law, Penal Law §190.80, says that a person commits identity theft when he or she “knowingly and with intent to defraud assumes 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.”

The law’s legislative history clearly showed that it was passed in response to fears of wholesale identity theft over the Internet.

“Therefore, although the statute was intended to proscribe Internet identity theft and other fraudulent use of personal information where an assumption of identity occurs, we cannot say that it was designed to be so broad as to encompass the conduct of someone who, like defendant, uses another’s personal identifying information but does not assume his or her identity,” he wrote.

Acosta further wrote that the law is “facially ambiguous” about whether using someone else’s personal information is necessarily identity theft, or whether that is merely a “means by which assumption of identity can, but does not necessarily, take place.”

“Because the statute is susceptible to these two reasonable interpretations and the legislative history is inconclusive, we decide this issue in accordance with the rule of lenity and sanction the interpretation more favorable to defendant,” Acosta wrote.

Furthermore, he said, at least initially, the hotel was aware that Barden was not the cardholder, meaning that he could not have been assuming Catalfamo’s identity at that time.

However, the panel rejected Barden’s separate argument about possession of stolen property, noting that courts have found that larceny can apply to intangible property.

“The proposition that intangible property cannot be criminally possessed leads to the bizarre result that a person may commit larceny of intangible property, but may not be guilty of criminally possessing the very property which he or she has stolen,” he wrote.

Barden was represented by Christine La Rochelle and Elizabeth Jordan, student interns in the Criminal Appellate Defender Clinic run by the Office of the Appellate Defender and NYU School of Law, under the supervision of Richard Greenberg, attorney-in-charge of the Office of the Appellate Defender.

“We are very pleased that the court agreed that the district attorney overreached in this case by charging Mr. Barden with identity theft, when it was clear that he never assumed the identity of another person,” Greenberg said in an email. “While Mr. Barden may have been guilty of the misdemeanor of theft of services, the addition of the felony identity theft charge (and resulting 7-year sentence) was improper.”

Greenberg said he would seek leave to appeal the ruling on possession of stolen property.

The prosecution was represented by Manhattan Assistant District Attorneys David Crowley and Alice Wiseman. A spokesman for the DA’s office declined to comment.