New Jersey Criminal Defense Lawyer - Identity Theft Under New Jersey Law

New Jersey law defines five different ways that a person can commit identity theft. Here are the five.

The first way is for one person to impersonate another or assume a false identity for the purpose of obtaining a benefit for himself or another or to injure or defraud another. The second way is for a person to pretend to be a representative of some person or organization, and does an act in that pretended capacity in order to obtain a benefit for himself or another, or to injure or defraud another.

The third way is for a person to impersonate another, assume a false identity or make a false or misleading statement regarding the identity of any person, in an oral or written application for services, when this is done for the purpose of obtaining services. The fourth way is for someone to obtain personal identifying information pertaining to another person and then use that information, or assist another person in using the information, in order to assume the identity of or represent himself as another person, without that person's authorization, and for the purpose of fraudulently obtaining, or attempting to obtain a benefit or services, or avoid the payment of debt or other legal obligation or avoid prosecution for a crime by using the name of the other person. The final way is for one person to impersonate another, assume a false identity, or make a false or misleading statement in the course of making an oral or written application for services, with the purpose of avoiding payment for prior services. We look more closely at all of these ways, in order.

For a person to be found guilty this first way, the State of New Jersey must prove the following three elements of the crime beyond a reasonable doubt:

1. The accused person knowingly impersonated another, or assumed a false identity;

2. The accused person knowingly did an act in such assumed character or false identity; and

3. The accused person's purpose in doing that act was one (or more) of the following:

To obtain a benefit for himself;
To obtain a benefit for another;
To injure another; or
To defraud another.

Under this first way, the first element that New Jersey must prove is that the accused person knowingly impersonated another or knowingly assumed a false identity. To “impersonate” means to assume the character or appearance of another, or to imitate the appearance, voice, or manner of another.

The impersonation must be done knowingly. The significance of that is that if the accused person harbors delusions that he

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is actually someone else, then his impersonation is being done not knowingly. In such case, this element of the offense would be missing, and the accused person is not guilty.

Under New Jersey law, a person acts “knowingly” with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature or that such circumstances exist or if he is aware of a high probability of their existence. A person acts knowingly with respect to the result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. Knowledge is a condition of the mind. For that reason, it cannot be seen. It can be determined only by inferences from conduct, words or acts. A state of mind is rarely susceptible of direct proof. It must ordinarily be inferred from the facts. Therefore, the State of New Jersey does not require the prosecutor to produce witnesses to testify that an accused said that he had a certain state of mind when he engaged in a particular act. New Jersey allows a jury to find that such proof has been furnished beyond a reasonable doubt by inference. This inference may arise from the nature of the accused person's acts and conduct, from all that he said and did at the particular time and place, and from all surrounding circumstances.

The second element that the State of New Jersey must prove is that the accused person knowingly did an act in that assumed character or false identity. “Knowingly,” here, has the same meaning as indicated in the first element. In fact, “knowingly” permeates the law relating to identify theft. Thus we will not continue to define it each time that it crops up.

The final element that New Jersey must prove under this first form of identity theft is that the accused person purposely does any one of the following: Obtain a benefit for himself; obtain a benefit for another; injure another; or defraud another.

“Obtain” can mean different things, depending on the context. When used in relation to property, obtain means to bring about a transfer of a legal interest in the property, whether to oneself or another. When used in relation to labor or service, obtain means to secure performance thereof.

“Benefit” can mean any property, money, services, or debts sought to be avoided. It can also mean injury or harm inflicted upon another where there is no pecuniary value.

To “defraud” means to deprive a person of property or any interest, estate, or right by deceit, artifice, trickery or cheat. To “injure” means to cause any damage that may ensue to the good name, standing, position or general reputation of another. It may also mean to misrepresent or injuriously affect the sentiments, opinions, conduct, character, prospects, interests or rights of another.

The phrase “purposely” means that it is the person's conscious object to do any of the acts just described, or to cause them to be done. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist. “With purpose”, “designed”, “with design”, or equivalent terms, have the same meaning.

“Purpose”, like knowledge, is a state of mind. It cannot be seen. It can be determined only by inference from conduct, words or acts. For that reason, New Jersey does not require that the prosecutor produce witnesses to testify that an accused person said that he purposely did something. The accused person' purpose may be gathered from his acts and conduct, from all that he said and did at the particular time and place, and from all the surrounding circumstances reflected in the testimony and adduced at trial. If your lawyer can establish a purpose other than to any of the acts just described, then there was no identity theft under this first method. “Purpose,” too, permeates the law of identity theft. Therefore we will not define it over and over again in this discussion but, rather, will rely upon the definition provided at this point.

We indicated above that New Jersey defines five separate ways exist by which a person can commit identity theft. We turn now to the second way. That second way is for for the accused person to commit each of the following three elements of the crime beyond a reasonable doubt:

1. Pretend to be a representative of a person or organization;

2. Knowingly do an act in such pretended capacity; and

3. Have the purpose in doing that act to obtain a benefit for himself, or obtain a benefit for another, or injure another, or defraud another.

The first element is that the accused person pretends to be a representative of a person or organization. This pretended act must be done knowingly.

The second element that the State must prove beyond a reasonable doubt is that the accused person knowingly does an act in that pretended capacity.

The third element that the State must prove is that the purpose of the accused person is to obtain a benefit for himself, or obtain a benefit for another, or injure another. “Benefit” includes any property, any pecuniary amount, any services, any pecuniary amount sought to be avoided or any injury or harm perpetrated on another where there is no pecuniary value. “Injure” in this context means to cause any damage that may ensue to the good name, standing, position or general reputation of the purported author of the statement. It may also mean to misrepresent or injuriously affect the sentiments, opinions, conduct, character, prospects, interest or rights of another.

The third way that a person can commit identify theft also has three elements that the State of New Jersey must prove. They are:

1. The accused person knowingly impersonates another, or assumes a false identity, or makes a false statement regarding the identity of any person, or makes a misleading statement regarding the identity of any person;

2. The accused person's impersonation, assumption of false identity, or

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false or misleading statement regarding identity is made in an oral or written application for services; and

3. The accused person has the purpose to obtain services.

The first element of this third way is that the accused person knowingly either: impersonates another person; assumes a false identity; makes a false statement regarding the identity of any person; or makes a misleading statement regarding the identity of any person. As explained above, to “impersonate” means to assume the character or appearance of another, or to imitate the appearance, voice, or manner of another. “Person” has the same expanded meaning here as indicated above.

The second element is that the accused person's impersonation, assumption of false identity, or false or misleading statement regarding identity is made in an oral or written application for services.

The final element is that the purpose of the accused person is to obtain services.

Now for the fourth way in which an accused person can commit identify theft. It has four elements:

1. The accused person knowingly obtains personal identifying information pertaining to another person;

2. The accused person purposely uses the information or assists another person to use the information in order to assume the identity of another person or in order to represent himself as another person;

3. The accused person knows that he lacks authorization to use the other individual' personal information; and

4. The accused person has as his purpose any of the following:

Fraudulently obtain a benefit or services, or
Attempt to obtain a benefit or services, or
Avoid the payment of debt or other legal obligation, or
Avoid prosecution for a crime by using the name of the other person.

The first element is that the accused person obtains personal identifying information pertaining to another person. Another “person” here, again, has the same expanded definition as indicated above. “Personal identifying information” is a wide-encompassing term. It includes any name, number, or other information that may be used, alone or in conjunction with any other information, to identify a specific individual. A whole laundry list of items is included. That laundry list includes address, telephone number, date of birth, social security number, official State issued identification number, employer or taxpayer number, place of employment, employee identification number, demand deposit account number, savings account number, credit card number, mother's maiden name, and unique biometric data. “Unique biometric data”, in turn, include fingerprints, voice prints, retina or iris images, and other unique physical representations. Also included in “personal identifying information” are unique electronic identification numbers, addresses or routing codes of the individual. This list is not exhaustive. “Personal identifying information” can also include other data, even though not specifically listed in this list. The obtaining must be done knowingly.

The second element of this fourth way is that the accused person purposely either uses that information or assists another person in using the information in order to assume the identity of another person or to represent himself as another person.

The third element is that the accused person knows that he lacks authorization to use the personal information of the other individual.

The fourth element of this third way relates to the purpose of the accused individual. This element is satisfied when the purpose of the accused person is to fraudulently obtain a benefit or service. It is satisfied when the purpose is to avoid the payment of debt or other legal obligation. It is satisfied with the purpose is to avoid prosecution for a crime by using the name of the other person.

Different ways exist in which a person may attempt to obtain benefits or services. All ways require purposeful actions. One way is when the person engages in conduct that would cause him to fraudulently obtain a benefits or services if the attendant circumstances were as a reasonable person would believe them to be. A second way is to do or omit to do something with the purpose of fraudulently obtaining a benefit or services without further conduct on his part. This means that the the accused person does something designed to fraudulently obtain a benefit or services without having to take any further action. A third way is when a person does or omits doing anything which, under the circumstances that a reasonable person would believe them to be, is an act or omission constituting a substantial step in the course of conduct planned to culminate in his fraudulently obtaining a benefit or services. The step taken must be one that is strongly corroborative of the the accused person's criminal purpose. The accused must be shown to have a firmness of criminal purpose in light of the step or steps he already took. These preparatory steps must be substantial and not just very remote preparatory acts.

At last we reach the fifth and final way that a person can commit the crime of identify theft in New Jersey. This fifth way has three elements: A person commits identity theft under New Jersey law when the following elements are satisfied:

1. The accused person knowingly impersonates another, or assumes a false identity, or makes a false or misleading statement;

2. The impersonation, assumption of false identity, false statement, or misleading statement occurs in the course of him making an oral or written application for services; and

3. The impersonation, assumption of false identity, false statement, or misleading statement is made with the purpose of avoiding payment for prior services. New Jersey law allows purpose to avoid payment for prior services to be inferred from proof that the accused person has not made full payment for prior services and has impersonated another, assumed a false identity or made a false or misleading statement regarding the identity of any person in the course of making oral or written application for those services. However, this inference is peermissive, and not mandatory. It is up to a jury to determine whether the facts and circumstances shown by the evidence support any inference. The jury is always free to accept them or reject them if it wishes.