Tuesday, 09 February 2016 08:48

People v, Debranche: Can a Non-Existent Person Be an Identity Theft Victim?

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The defendants in the case, Alexis Debranche and Xavier McLaughlin, were alleged to have opened at least one cell phone account in the name of "Avi Natanov," and a complaining witness knew that the real name of neither defendant matched "Avi Natanov." While it was not disclosed how the witness knew this, the Criminal Court for the City of New York issued an oral decision that granted the defendants' motions to dismiss the accusatory instrument for facial insufficiency.

According to the court, information must provide reasonable cause to believe that a defendant committed the alleged crime to be sufficient on its face, and contain non-hearsay allegations that establish all elements of the crime and its commission by the defendants, if true. Reasonable cause in such a situation “exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” (CPL 70.10[2] ).

A third-degree identity theft is committed when a person knowingly assumes the identity of another person with the intent to defraud by presenting him/herself as that other person, acting like that other person, or using personally identifying information of that other person and obtains goods or services in the name of that other person or causes that person financial loss. It is typical of a third-degree identity theft charge to require that the defendants assumed the identity of "another person," which the court concluded meant a real and identifiable person who actually existed. The court noted the legislative intent of law as enacted in 2002 in order to protect and vindicate the rights of those consumers who were actually victimized by an identity theft.

The requirement that a defendant being prosecuted for identity theft must have assumed the identity of "another person" indicates that lawmakers clearly referenced criminal conduct that is committed against an actual, innocent individual who identity or personal data had actually been stolen.

Therefore, to open a line of credit in the name of another person constitutes identity theft, but to open a credit line using a false name or alias does not constitute this crime. If an identity theft charge were brought without any proof that an actual person's identity had been assumed would equate identity theft with false personation, rather than with criminal impersonation as intended by the Legislature.

While other fraud-related charges may be valid for the use of a fictitious name in order to obtain financial benefits or to cause a financial loss, this conduct does not constitute identity theft.

In this case, the only allegations made against the defendants are that they opened at least one cellular account under the name of "Avi Natanov" and that "Avi Natanov" is not the real name of either one of the defendants. If "Avi Natanov" is not a real person but just an alias, there is no identity of "another person" to be stolen; without proof that "Avi Natanov" is a real person whose identity was fraudulently used by the defendants, the information provided fails to establish the elements of an identity theft crime.


The People of the State of New York v. Alexis Debranche and Xavier McLaughlin, Defendants. Criminal Court, City of New York, New York County. No. 2012NY018881. Decided: December 7, 2012


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