STATE OF NEW YORK
________________________________________________________________________
5146
2019-2020 Regular Sessions
IN SENATE
April 11, 2019
___________
Introduced by Sen. KAVANAGH -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law, the criminal procedure law, the general
business law, the state technology law and the executive law, in
relation to offenses involving theft of identity; and to repeal
certain provisions of the criminal procedure law and the penal law
relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Title K of the penal law is amended by adding a new article
2 191 to read as follows:
3 ARTICLE 191
4 OFFENSES INVOLVING THEFT OF IDENTITY
5 Section 191.00 Definitions.
6 191.05 Petit identity theft.
7 191.10 Identity theft in the fourth degree.
8 191.15 Identity theft in the third degree.
9 191.20 Identity theft in the second degree.
10 191.25 Identity theft in the first degree.
11 191.30 Unlawful possession of personal identifying information
12 in the third degree.
13 191.35 Unlawful possession of personal identifying information
14 in the second degree.
15 191.40 Unlawful possession of personal identifying information
16 in the first degree.
17 191.45 Defenses.
18 191.50 Unlawful possession of a skimmer device in the second
19 degree.
20 191.55 Unlawful possession of a skimmer device in the first
21 degree.
22 § 191.00 Definitions.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11170-01-9
S. 5146 2
1 1. For the purposes of this article "personal identifying information"
2 means a person's name, address, telephone number, date of birth, driv-
3 er's license number, social security number, place of employment, moth-
4 er's maiden name, financial services account number or code, savings
5 account number or code, checking account number or code, brokerage
6 account number or code, credit card account number or code, debit card
7 number or code, automated teller machine number or code, taxpayer iden-
8 tification number, computer system password, signature or copy of a
9 signature, electronic signature, unique biometric data that is a finger-
10 print, voice print, retinal image or iris image of another person, tele-
11 phone calling card number, mobile identification number or code, elec-
12 tronic serial number or personal identification number, medical
13 information, medical insurance information, or any other name, number,
14 code or information that may be used alone or in conjunction with other
15 such information to assume the identity of another person.
16 2. For the purposes of this article:
17 (a) "electronic signature" shall have the same meaning as defined in
18 subdivision three of section three hundred two of the state technology
19 law.
20 (b) "personal identification number" means any number or code which
21 may be used alone or in conjunction with any other information to assume
22 the identity of another person or access financial resources or credit
23 of another person.
24 (c) "member of the armed forces" shall mean a person in the military
25 service of the United States or the military service of the state,
26 including but not limited to, the armed forces of the United States, the
27 army national guard, the air national guard, the New York naval militia,
28 the New York guard, and such additional forces as may be created by the
29 federal or state government as authorized by law.
30 (d) "medical information" means any information regarding an individ-
31 ual's medical history, mental or physical condition, or medical treat-
32 ment or diagnosis by a health care professional.
33 (e) "medical insurance information" means an individual's health
34 insurance policy number or subscriber identification number, any unique
35 identifier used by a health insurer to identify the individual or any
36 information in an individual's application and claims history, includ-
37 ing, but not limited to, appeals history.
38 § 191.05 Petit identity theft.
39 A person is guilty of petit identity theft when he or she knowingly
40 and with intent to defraud assumes the identity of another person by
41 presenting himself or herself as that other person, or by acting as that
42 other person or by using personal identifying information of that other
43 person, and thereby obtains goods, money, property or services or uses
44 credit in the name of such other person or causes financial loss to such
45 person or to another person or persons.
46 Petit identity theft is a class A misdemeanor.
47 § 191.10 Identity theft in the fourth degree.
48 A person is guilty of identity theft in the fourth degree when he or
49 she knowingly and with intent to defraud:
50 1. assumes the identity of another person by presenting himself or
51 herself as that other person, or by acting as that other person or by
52 using personal identifying information of that other person, and there-
53 by:
54 (a) obtains goods, money, property or services or uses credit in the
55 name of such other person in an aggregate amount that exceeds five
56 hundred dollars; or
S. 5146 3
1 (b) causes financial loss to such person or to another person or
2 persons in an aggregate amount that exceeds five hundred dollars; or
3 (c) commits or attempts to commit a felony or acts as an accessory to
4 the commission of a felony; or
5 (d) commits the crime of petit identity theft as defined in section
6 191.05 of this article and knows that such other person is a member of
7 the armed forces and that such member is presently deployed outside of
8 the continental United States; or
9 (e) commits the crime of petit identity theft as defined in section
10 191.05 of this article and knows that such other person is a vulnerable
11 elderly person as defined in subdivision three of section 260.31 of this
12 chapter, or a person who is unable to care for himself or herself
13 because of physical disability, mental disease or defect, or because he
14 or she is a minor; or
15 2. assumes the identity of three or more persons by presenting himself
16 or herself as those other persons, or by acting as those other persons,
17 or by using personal identifying information of those other persons, and
18 thereby obtains goods, money, property or services or uses credit in the
19 name of those persons, or causes financial loss to at least one such
20 person, or to another person or persons.
21 Identity theft in the fourth degree is a class E felony.
22 § 191.15 Identity theft in the third degree.
23 A person is guilty of identity theft in the third degree when he or
24 she knowingly and with intent to defraud:
25 1. assumes the identity of another person by presenting himself or
26 herself as that other person, or by acting as that other person or by
27 using personal identifying information of that other person, and there-
28 by:
29 (a) obtains goods, money, property or services or uses credit in the
30 name of such other person in an aggregate amount that exceeds two thou-
31 sand dollars; or
32 (b) causes financial loss to such person or to another person or
33 persons in an aggregate amount that exceeds two thousand dollars; or
34 (c) commits or attempts to commit a class D felony or higher level
35 crime or acts as an accessory to the commission of a class D or higher
36 level felony; or
37 (d) commits the crime of identity theft in the fourth degree as
38 defined in section 191.10 of this article and has been previously
39 convicted within the last five years of petit identity theft as defined
40 in section 191.05, identity theft in the fourth degree as defined in
41 section 191.10, identity theft in the third degree as defined in this
42 section, identity theft in the second degree as defined in section
43 191.20, identity theft in the first degree as defined in section 191.25,
44 unlawful possession of personal identifying information in the third
45 degree as defined in section 191.30, unlawful possession of personal
46 identifying information in the second degree as defined in section
47 191.35, unlawful possession of personal identifying information in the
48 first degree as defined in section 191.40, unlawful possession of a
49 skimmer device in the second degree as defined in section 191.50, unlaw-
50 ful possession of a skimmer device in the first degree as defined in
51 section 191.55, grand larceny in the fourth degree as defined in section
52 155.30, grand larceny in the third degree as defined in section 155.35,
53 grand larceny in the second degree as defined in section 155.40 or grand
54 larceny in the first degree as defined in section 155.42, criminal
55 possession of a forged instrument in the third degree as defined in
56 section 170.20, criminal possession of a forged instrument in the second
S. 5146 4
1 degree as defined in section 170.25, criminal possession of a forged
2 instrument in the first degree as defined in section 170.30, criminal
3 possession of stolen property in the fifth degree as defined in section
4 165.40, criminal possession of stolen property in the fourth degree as
5 defined in section 165.45, criminal possession of stolen property in the
6 third degree as defined in section 165.50, criminal possession of stolen
7 property in the second degree as defined in section 165.52, criminal
8 possession of stolen property in the first degree as defined in section
9 165.54, or criminal possession of forgery devices as defined in section
10 170.40 of this chapter; or
11 (e) commits the crime of identity theft in the fourth degree as
12 defined in section 191.10 of this article and knows that such other
13 person is a member of the armed forces, and knows that such member is
14 presently deployed outside of the continental United States; or
15 (f) commits the crime of identity theft in the fourth degree as
16 defined in section 191.10 of this article and knows that such other
17 person is a vulnerable elderly person as defined in subdivision three of
18 section 260.31 of this chapter, or a person who is unable to care for
19 himself or herself because of physical disability, mental disease or
20 defect, or because he or she is a minor; or
21 2. assumes the identity of ten or more persons by presenting himself
22 or herself as those other persons, or by acting as those other persons,
23 or by using personal identifying information of those other persons, and
24 thereby obtains goods, money, property or services or uses credit in the
25 name of those persons, or causes financial loss to at least one such
26 person, or to another person or persons.
27 Identity theft in the third degree is a class D felony.
28 § 191.20 Identity theft in the second degree.
29 A person is guilty of identity theft in the second degree when he or
30 she knowingly and with intent to defraud:
31 1. assumes the identity of another person by presenting himself or
32 herself as that other person, or by acting as that other person or by
33 using personal identifying information of that other person, and there-
34 by:
35 (a) obtains goods, money, property or services or uses credit in the
36 name of such other person in an aggregate amount that exceeds twenty-
37 five thousand dollars; or
38 (b) causes financial loss to such person or to another person or
39 persons in an aggregate amount that exceeds twenty-five thousand
40 dollars; or
41 (c) commits or attempts to commit a class C felony or higher level
42 crime or acts as an accessory in the commission of a class C or higher
43 level felony; or
44 (d) commits the crime of identity theft in the third degree as defined
45 in section 191.15 of this article and has been previously convicted
46 within the last five years of petit identity theft as defined in section
47 191.05, identity theft in the fourth degree as defined in section
48 191.10, identity theft in the third degree as defined in section 191.15,
49 identity theft in the second degree as defined in this section, identity
50 theft in the first degree as defined in section 191.25, unlawful
51 possession of personal identifying information in the third degree as
52 defined in section 191.30, unlawful possession of personal identifying
53 information in the second degree as defined in section 191.35, unlawful
54 possession of personal identifying information in the first degree as
55 defined in section 191.40, unlawful possession of a skimmer device in
56 the second degree as defined in section 191.50, unlawful possession of a
S. 5146 5
1 skimmer device in the first degree as defined in section 191.55, grand
2 larceny in the fourth degree as defined in section 155.30, grand larceny
3 in the third degree as defined in section 155.35, grand larceny in the
4 second degree as defined in section 155.40 or grand larceny in the first
5 degree as defined in section 155.42, criminal possession of a forged
6 instrument in the third degree as defined in section 170.20, criminal
7 possession of a forged instrument in the second degree as defined in
8 section 170.25, criminal possession of a forged instrument in the first
9 degree as defined in section 170.30, criminal possession of stolen prop-
10 erty in the fifth degree as defined in section 165.40, criminal
11 possession of stolen property in the fourth degree as defined in section
12 165.45, criminal possession of stolen property in the third degree as
13 defined in section 165.50, criminal possession of stolen property in the
14 second degree as defined in section 165.52, criminal possession of
15 stolen property in the first degree as defined in section 165.54, or
16 criminal possession of forgery devices as defined in section 170.40 of
17 this chapter; or
18 (e) commits the crime of identity theft in the third degree as defined
19 in section 191.15 of this article and knows that such other person is a
20 member of the armed forces and that such member is presently deployed
21 outside of the continental United States; or
22 (f) commits the crime of identity theft in the third degree as defined
23 in section 191.15 of this article and knows that such other person is a
24 vulnerable elderly person as defined in subdivision three of section
25 260.31 of this chapter, or a person who is unable to care for himself or
26 herself because of physical disability, mental disease or defect, or
27 because he or she is a minor; or
28 2. assumes the identity of twenty-five or more persons by presenting
29 himself or herself as those other persons, or by acting as those other
30 persons, or by using personal identifying information of those other
31 persons, and thereby obtains goods, money, property or services or uses
32 credit in the name of those persons, or causes financial loss to at
33 least one such person, or to another person or persons.
34 Identity theft in the second degree is a class C felony.
35 § 191.25 Identity theft in the first degree.
36 A person is guilty of identity theft in the first degree when he or
37 she knowingly and with intent to defraud:
38 1. assumes the identity of another person by presenting himself or
39 herself as that other person, or by acting as that other person or by
40 using personal identifying information of that other person, and there-
41 by:
42 (a) obtains goods, money, property or services or uses credit in the
43 name of such other person in an aggregate amount that exceeds two
44 hundred thousand dollars; or
45 (b) causes financial loss to such person or to another person or
46 persons in an aggregate amount that exceeds two hundred thousand
47 dollars; or
48 (c) commits or attempts to commit a class B felony or higher level
49 crime or acts as an accessory in the commission of a class B or higher
50 level felony; or
51 (d) commits the crime of identity theft in the second degree as
52 defined in section 191.20 of this article and has been previously
53 convicted within the last five years of petit identity theft as defined
54 in section 191.05, identity theft in the fourth degree as defined in
55 section 191.10, identity theft in the third degree as defined in section
56 191.15, identity theft in the second degree as defined in section 191.20
S. 5146 6
1 of this article, identity theft in the first degree as defined in this
2 section, unlawful possession of personal identifying information in the
3 second degree as defined in section 191.35, unlawful possession of
4 personal identifying information in the first degree as defined in
5 section 191.40, unlawful possession of a skimmer device in the second
6 degree as defined in section 191.50, unlawful possession of a skimmer
7 device in the first degree as defined in section 191.55, grand larceny
8 in the fourth degree as defined in section 155.30, grand larceny in the
9 third degree as defined in section 155.35, grand larceny in the second
10 degree as defined in section 155.40 or grand larceny in the first degree
11 as defined in section 155.42, criminal possession of a forged instrument
12 in the third degree as defined in section 170.20, criminal possession of
13 a forged instrument in the second degree as defined in section 170.25,
14 criminal possession of a forged instrument in the first degree as
15 defined in section 170.30, criminal possession of stolen property in the
16 fifth degree as defined in section 165.40, criminal possession of stolen
17 property in the fourth degree as defined in section 165.45, criminal
18 possession of stolen property in the third degree as defined in section
19 165.50, criminal possession of stolen property in the second degree as
20 defined in section 165.52, criminal possession of stolen property in the
21 first degree as defined in section 165.54, or criminal possession of
22 forgery devices as defined in section 170.40 of this chapter; or
23 (e) commits the crime of identity theft in the second degree as
24 defined in section 191.20 of this article and knows that such other
25 person is a member of the armed forces, and knows that such member is
26 presently deployed outside of the continental United States; or
27 (f) commits the crime of identity theft in the second degree as
28 defined in section 191.20 of this article and knows that such other
29 person is a vulnerable elderly person as defined in subdivision three of
30 section 260.31 of this chapter, or a person who is unable to care for
31 himself or herself because of physical disability, mental disease or
32 defect, or because he or she is a minor; or
33 2. assumes the identity of fifty or more persons by presenting himself
34 or herself as those other persons, or by acting as those other persons,
35 or by using personal identifying information of those other persons, and
36 thereby obtains goods, money, property or services or uses credit in the
37 name of those persons, or causes financial loss to at least one such
38 person, or to another person or persons.
39 Identity theft in the first degree is a class B felony.
40 § 191.30 Unlawful possession of personal identifying information in the
41 third degree.
42 A person is guilty of unlawful possession of personal identifying
43 information in the third degree when he or she knowingly possesses a
44 person's personal identifying information as defined in section 191.00
45 of this article of another person knowing such information is intended
46 to be used in furtherance of the commission of a crime defined in this
47 chapter.
48 Unlawful possession of personal identifying information in the third
49 degree is a class A misdemeanor.
50 § 191.35 Unlawful possession of personal identifying information in the
51 second degree.
52 A person is guilty of unlawful possession of personal identifying
53 information in the second degree when he or she knowingly possesses
54 fifty or more items of personal identifying information as defined in
55 section 191.00 of this article knowing such information is intended to
S. 5146 7
1 be used in furtherance of the commission of a crime defined in this
2 chapter.
3 Unlawful possession of personal identifying information in the second
4 degree is a class E felony.
5 § 191.40 Unlawful possession of personal identifying information in the
6 first degree.
7 A person is guilty of unlawful possession of personal identifying
8 information in the first degree when he or she commits the crime of
9 unlawful possession of personal identifying information in the second
10 degree and:
11 1. with intent to further the commission of identity theft in the
12 third degree, he or she supervises more than three accomplices; or
13 2. he or she has been previously convicted within the last five years
14 of petit identity theft as defined in section 191.05, identity theft in
15 the fourth degree as defined in section 191.10, identity theft in the
16 third degree as defined in section 191.15, identity theft in the second
17 degree as defined in section 191.20, identity theft in the first degree
18 as defined in section 191.25, unlawful possession of personal identify-
19 ing information in the third degree as defined in section 191.30, unlaw-
20 ful possession of personal identifying information in the second degree
21 as defined in section 191.35, unlawful possession of personal identify-
22 ing information in the first degree as defined in this section, unlawful
23 possession of a skimmer device in the second degree as defined in
24 section 191.50, unlawful possession of a skimmer device in the first
25 degree as defined in section 191.55, grand larceny in the fourth degree
26 as defined in section 155.30, grand larceny in the third degree as
27 defined in section 155.35, grand larceny in the second degree as defined
28 in section 155.40 or grand larceny in the first degree as defined in
29 section 155.42, criminal possession of a forged instrument in the third
30 degree as defined in section 170.20, criminal possession of a forged
31 instrument in the second degree as defined in section 170.25, criminal
32 possession of a forged instrument in the first degree as defined in
33 section 170.30, criminal possession of stolen property in the fifth
34 degree as defined in section 165.40, criminal possession of stolen prop-
35 erty in the fourth degree as defined in section 165.45, criminal
36 possession of stolen property in the third degree as defined in section
37 165.50, criminal possession of stolen property in the second degree as
38 defined in section 165.52, criminal possession of stolen property in the
39 first degree as defined in section 165.54, or criminal possession of
40 forgery devices as defined in section 170.40 of this chapter; or
41 3. with intent to further the commission of identity theft in the
42 second degree:
43 (a) he or she supervises more than two accomplices, and
44 (b) he or she knows that the person whose personal identifying infor-
45 mation that he or she possesses is a member of the armed forces, and
46 (c) he or she knows that such member of the armed forces is presently
47 deployed outside of the continental United States.
48 Unlawful possession of personal identifying information in the first
49 degree is a class D felony.
50 § 191.45 Defenses.
51 In any prosecution for identity theft or unlawful possession of
52 personal identifying information pursuant to this article, it shall be
53 an affirmative defense that the person charged with the offense:
54 1. was under twenty-one years of age at the time of committing the
55 offense and the person used or possessed the personal identifying infor-
56 mation of another solely for the purpose of purchasing alcohol;
S. 5146 8
1 2. was under eighteen years of age at the time of committing the
2 offense and the person used or possessed the personal identifying infor-
3 mation of another solely for the purpose of purchasing tobacco products;
4 or
5 3. used or possessed the personal identifying information of another
6 person solely for the purpose of misrepresenting the person's age to
7 gain access to a place the access to which is restricted based on age.
8 § 191.50 Unlawful possession of a skimmer device in the second degree.
9 1. A person is guilty of unlawful possession of a skimmer device in
10 the second degree when he or she possesses a skimmer device with the
11 intent that such device be used in furtherance of the commission of the
12 crime of identity theft or unlawful possession of personal identifying
13 information as defined in this article.
14 2. For purposes of this article, "skimmer device" means a device
15 designed or adapted to obtain personal identifying information from a
16 credit card, debit card, public benefit card, access card or device, or
17 other card or device that contains personal identifying information.
18 Unlawful possession of a skimmer device in the second degree is a
19 class A misdemeanor.
20 § 191.55 Unlawful possession of a skimmer device in the first degree.
21 A person is guilty of unlawful possession of a skimmer device in the
22 first degree when he or she commits the crime of unlawful possession of
23 a skimmer device in the second degree and he or she has been previously
24 convicted within the last five years of identity theft in the fourth
25 degree as defined in section 191.10, identity theft in the third degree
26 as defined in section 191.15, identity theft in the second degree as
27 defined in section 191.20, identity theft in the first degree as defined
28 in section 191.25, unlawful possession of personal identifying informa-
29 tion in the third degree as defined in section 191.30, unlawful
30 possession of personal identifying information in the second degree as
31 defined in section 191.35, unlawful possession of personal identifying
32 information in the first degree as defined in section 191.40, unlawful
33 possession of a skimmer device in the second degree as defined in
34 section 191.50, unlawful possession of a skimmer device in the first
35 degree as defined in this section, grand larceny in the fourth degree as
36 defined in section 155.30, grand larceny in the third degree as defined
37 in section 155.35, grand larceny in the second degree as defined in
38 section 155.40, grand larceny in the first degree as defined in section
39 155.42, criminal possession of a forged instrument in the third degree
40 as defined in section 170.20, criminal possession of a forged instrument
41 in the second degree as defined in section 170.25, criminal possession
42 of a forged instrument in the first degree as defined in section 170.30,
43 criminal possession of stolen property in the fifth degree as defined in
44 section 165.40, criminal possession of stolen property in the fourth
45 degree as defined in section 165.45, criminal possession of stolen prop-
46 erty in the third degree as defined in section 165.50, criminal
47 possession of stolen property in the second degree as defined in section
48 165.52, criminal possession of stolen property in the first degree as
49 defined in section 165.54, or criminal possession of forgery devices as
50 defined in section 170.40 of this chapter.
51 Unlawful possession of a skimmer device in the first degree is a class
52 E felony.
53 § 2. Paragraph (a) of subdivision 1 of section 460.10 of the penal
54 law, as amended by chapter 189 of the laws of 2018, is amended to read
55 as follows:
S. 5146 9
1 (a) Any of the felonies set forth in this chapter: sections 120.05,
2 120.10 and 120.11 relating to assault; sections 121.12 and 121.13 relat-
3 ing to strangulation; sections 125.10 to 125.27 relating to homicide;
4 sections 130.25, 130.30 and 130.35 relating to rape; sections 135.20 and
5 135.25 relating to kidnapping; sections 135.35 and 135.37 relating to
6 labor trafficking; section 135.65 relating to coercion; sections 140.20,
7 140.25 and 140.30 relating to burglary; sections 145.05, 145.10 and
8 145.12 relating to criminal mischief; article one hundred fifty relating
9 to arson; sections 155.30, 155.35, 155.40 and 155.42 relating to grand
10 larceny; sections 177.10, 177.15, 177.20 and 177.25 relating to health
11 care fraud; article one hundred sixty relating to robbery; sections
12 165.45, 165.50, 165.52 and 165.54 relating to criminal possession of
13 stolen property; sections 165.72 and 165.73 relating to trademark coun-
14 terfeiting; sections 170.10, 170.15, 170.25, 170.30, 170.40, 170.65 and
15 170.70 relating to forgery; sections 175.10, 175.25, 175.35, 175.40 and
16 210.40 relating to false statements; sections 176.15, 176.20, 176.25 and
17 176.30 relating to insurance fraud; sections 178.20 and 178.25 relating
18 to criminal diversion of prescription medications and prescriptions;
19 sections 180.03, 180.08, 180.15, 180.25, 180.40, 180.45, 200.00, 200.03,
20 200.04, 200.10, 200.11, 200.12, 200.20, 200.22, 200.25, 200.27, 200.56,
21 215.00, 215.05 and 215.19; sections 187.10, 187.15, 187.20 and 187.25
22 relating to residential mortgage fraud, sections 190.40 and 190.42
23 relating to criminal usury; section 190.65 relating to schemes to
24 defraud; sections 191.05, 191.10, 191.15, 191.20, 191.25, 191.30,
25 191.35, 191.40, 191.50, and 191.55 relating to identity theft; any felo-
26 ny defined in article four hundred ninety-six; sections 205.60 and
27 205.65 relating to hindering prosecution; sections 210.10, 210.15, and
28 215.51 relating to perjury and contempt; section 215.40 relating to
29 tampering with physical evidence; sections 220.06, 220.09, 220.16,
30 220.18, 220.21, 220.31, 220.34, 220.39, 220.41, 220.43, 220.46, 220.55,
31 220.60, 220.65 and 220.77 relating to controlled substances; sections
32 225.10 and 225.20 relating to gambling; sections 230.25, 230.30, and
33 230.32 relating to promoting prostitution; section 230.34 relating to
34 sex trafficking; section 230.34-a relating to sex trafficking of a
35 child; sections 235.06, 235.07, 235.21 and 235.22 relating to obscenity;
36 sections 263.10 and 263.15 relating to promoting a sexual performance by
37 a child; sections 265.02, 265.03, 265.04, 265.11, 265.12, 265.13 and the
38 provisions of section 265.10 which constitute a felony relating to
39 firearms and other dangerous weapons; sections 265.14 and 265.16 relat-
40 ing to criminal sale of a firearm; section 275.10, 275.20, 275.30, or
41 275.40 relating to unauthorized recordings; and sections 470.05, 470.10,
42 470.15 and 470.20 relating to money laundering; or
43 § 3. Paragraph (a) of subdivision 3 of section 490.05 of the penal
44 law, as amended by section 7 of part A of chapter 1 of the laws of 2004,
45 is amended to read as follows:
46 (a) "Specified offense" for purposes of this article means a class A
47 felony offense other than an offense as defined in article two hundred
48 twenty, a violent felony offense as defined in section 70.02,
49 manslaughter in the second degree as defined in section 125.15, criminal
50 tampering in the first degree as defined in section 145.20, identity
51 theft in the second degree as defined in section [190.79] 191.20, iden-
52 tity theft in the first degree as defined in section [190.80] 191.25,
53 unlawful possession of personal identification information in the second
54 degree as defined in section [190.82] 191.35, unlawful possession of
55 personal identification information in the first degree as defined in
56 section [190.83] 191.40, money laundering in support of terrorism in the
S. 5146 10
1 fourth degree as defined in section 470.21, money laundering in support
2 of terrorism in the third degree as defined in section 470.22, money
3 laundering in support of terrorism in the second degree as defined in
4 section 470.23, money laundering in support of terrorism in the first
5 degree as defined in section 470.24 of this chapter, and includes an
6 attempt or conspiracy to commit any such offense.
7 § 4. Paragraph (s) of subdivision 8 of section 700.05 of the criminal
8 procedure law is REPEALED and a new paragraph (s) is added to read as
9 follows:
10 (s) Petit identity theft as defined in section 191.05, identity theft
11 in the fourth degree as defined in section 191.10, identity theft in the
12 third degree as defined in section 191.15, identity theft in the second
13 degree as defined in section 191.20, identity theft in the first degree
14 as defined in section 191.25, unlawful possession of personal identify-
15 ing information in the third degree as defined in section 191.30, unlaw-
16 ful possession of personal identifying information in the second degree
17 as defined in section 191.35, unlawful possession of personal identify-
18 ing information in the first degree as defined in section 191.40, unlaw-
19 ful possession of a skimmer device in the second degree as defined in
20 section 191.50, or unlawful possession of a skimmer device in the first
21 degree as defined in section 191.55 of the penal law.
22 § 5. Paragraph (b) of subdivision 1 of section 899-aa of the general
23 business law, as added by chapter 442 of the laws of 2005, is amended to
24 read as follows:
25 (b) "Private information" shall mean personal information consisting
26 of any information in combination with any one or more of the following
27 data elements, when either the personal information or the data element
28 is not encrypted, or encrypted with an encryption key that has also been
29 acquired:
30 (1) social security number;
31 (2) driver's license number or non-driver identification card number;
32 or
33 (3) account number, credit or debit card number, in combination with
34 any required security code, access code, or password that would permit
35 access to an individual's financial account; or
36 (4) medical information; or
37 (5) health insurance information;
38 For purposes of this paragraph, "medical information" means any infor-
39 mation regarding an individual's medical history, mental or physical
40 condition, or medical treatment or diagnosis by a health care profes-
41 sional.
42 For purposes of this paragraph, "health insurance information" means
43 an individual's health insurance policy number or subscriber identifica-
44 tion number, any unique identifier used by a health insurer to identify
45 the individual or any information in an individual's application and
46 claims history, including, but not limited to, appeals history.
47 "Private information" does not include publicly available information
48 which is lawfully made available to the general public from federal,
49 state, or local government records.
50 § 6. Paragraph (a) of subdivision 1 of section 208 of the state tech-
51 nology law, as added by chapter 442 of the laws of 2005, is amended to
52 read as follows:
53 (a) "Private information" shall mean personal information in combina-
54 tion with any one or more of the following data elements, when either
55 the personal information or the data element is not encrypted or
56 encrypted with an encryption key that has also been acquired:
S. 5146 11
1 (1) social security number;
2 (2) driver's license number or non-driver identification card number;
3 or
4 (3) account number, credit or debit card number, in combination with
5 any required security code, access code, or password which would permit
6 access to an individual's financial account[.]; or
7 (4) medical information; or
8 (5) health insurance information.
9 For purposes of this paragraph, "medical information" means any infor-
10 mation regarding an individual's medical history, mental or physical
11 condition, or medical treatment or diagnosis by a health care profes-
12 sional.
13 For purposes of this paragraph, "health insurance information" means
14 an individual's health insurance policy number or subscriber identifica-
15 tion number, any unique identifier used by a health insurer to identify
16 the individual or any information in an individual's application and
17 claims history, including, but not limited to, appeals history.
18 "Private information" does not include publicly available information
19 that is lawfully made available to the general public from federal,
20 state, or local government records.
21 § 7. Sections 190.77, 190.78, 190.79, 190.80, 190.80-a, 190.81,
22 190.82, 190.83, 190.84, 190.85 and 190.86 of the penal law are REPEALED.
23 § 8. Subdivision 1 of section 60.27 of the penal law, as amended by
24 chapter 279 of the laws of 2008, is amended to read as follows:
25 1. In addition to any of the dispositions authorized by this article,
26 the court shall consider restitution or reparation to the victim of the
27 crime and may require restitution or reparation as part of the sentence
28 imposed upon a person convicted of an offense, and after providing the
29 district attorney with an opportunity to be heard in accordance with the
30 provisions of this subdivision, require the defendant to make restitu-
31 tion of the fruits of his or her offense or reparation for the actual
32 out-of-pocket loss caused thereby and, in the case of a violation of
33 section [190.78, 190.79, 190.80, 190.82 or 190.83] 191.05, 191.10,
34 191.15, 191.20 or 191.25 of this chapter, any costs or losses incurred
35 due to any adverse action taken against the victim. The district attor-
36 ney shall where appropriate, advise the court at or before the time of
37 sentencing that the victim seeks restitution or reparation, the extent
38 of injury or economic loss or damage of the victim, and the amount of
39 restitution or reparation sought by the victim in accordance with his or
40 her responsibilities under subdivision two of section 390.50 of the
41 criminal procedure law and article twenty-three of the executive law.
42 The court shall hear and consider the information presented by the
43 district attorney in this regard. In that event, or when the victim
44 impact statement reports that the victim seeks restitution or repara-
45 tion, the court shall require, unless the interests of justice dictate
46 otherwise, in addition to any of the dispositions authorized by this
47 article that the defendant make restitution of the fruits of the offense
48 and reparation for the actual out-of-pocket loss and, in the case of a
49 violation of section [190.78, 190.79, 190.80, 190.82 or 190.83] 191.05,
50 191.10, 191.15, 191.20 or 191.25 of this chapter, any costs or losses
51 incurred due to any adverse action, caused thereby to the victim. In the
52 event that restitution or reparation are not ordered, the court shall
53 clearly state its reasons on the record. Adverse action as used in this
54 subdivision shall mean and include actual loss incurred by the victim,
55 including an amount equal to the value of the time reasonably spent by
S. 5146 12
1 the victim attempting to remediate the harm incurred by the victim from
2 the offense, and the consequential financial losses from such action.
3 § 9. Paragraph (b) of subdivision 4 of section 60.27 of the penal law,
4 as amended by chapter 313 of the laws of 2011, is amended to read as
5 follows:
6 (b) the term "victim" shall include the victim of the offense, the
7 representative of a crime victim as defined in subdivision six of
8 section six hundred twenty-one of the executive law, an individual whose
9 identity was assumed or whose personal identifying information was used
10 in violation of section [190.78, 190.79 or 190.80] 191.05, 191.10,
11 191.15, 191.20 or 191.25 of this chapter, or any person who has suffered
12 a financial loss as a direct result of the acts of a defendant in
13 violation of section [190.78, 190.79, 190.80, 190.82 or 190.83] 191.05,
14 191.10, 191.15, 191.20 or 191.25 of this chapter, a good samaritan as
15 defined in section six hundred twenty-one of the executive law and the
16 office of victim services or other governmental agency that has received
17 an application for or has provided financial assistance or compensation
18 to the victim. A victim shall also mean any owner or lawful producer of
19 a master recording, or a trade association that represents such owner or
20 lawful producer, that has suffered injury as a result of an offense as
21 defined in article two hundred seventy-five of this chapter.
22 § 10. Subdivision 2 of section 646 of the executive law, as amended by
23 chapter 346 of the laws of 2007, is amended to read as follows:
24 2. An individual whose identity was assumed or whose personal identi-
25 fying information, as defined in [section 190.77] subdivision one of
26 section 191.00 of the penal law, was used in violation of section
27 [190.78, 190.79 or 190.80] 191.05, 191.10, 191.15, 191.20 or 191.25 of
28 the penal law, or any person who has suffered a financial loss as a
29 direct result of the acts of a defendant in violation of section
30 [190.78, 190.79, 190.80, 190.82 or 190.83] 191.05, 191.10, 191.15,
31 191.20 or 191.25 of the penal law, who has learned or reasonably
32 suspects that his or her personal identifying information has been
33 unlawfully used by another, may make a complaint to the local law
34 enforcement agency of the county in which any part of the offense took
35 place regardless of whether the defendant was actually present in such
36 county, or in the county in which the person who suffered financial loss
37 resided at the time of the commission of the offense, or in the county
38 where the person whose personal identification information was used in
39 the commission of the offense resided at the time of the commission of
40 the offense as provided in paragraph (l) of subdivision four of section
41 20.40 of the criminal procedure law. Said local law enforcement agency
42 shall take a police report of the matter and provide the complainant
43 with a copy of such report free of charge.
44 § 11. This act shall take effect immediately.
