In 1996, in yet another effort to increase the accountability of agencies responsible for <mask> investigations, the law was once again amended by chapter 12 of the Laws of 1996. What commonly became known as “Elisa’s Law” (in memory of a child victim of abuse who had “fallen between the cracks”) was enacted. The purpose behind the new law was to allow greater latitude in child abuse investigations, in the hope that a more thorough followup would prevent repeat incidents of serious child abuse. Elisa’s Law also caused a number of other laws related to child protection, including the Mental Hygiene Law, the Domestic Relations Law and the Family Court Act to be amended. Social Services Law § 422 (5) was also amended to permit agencies to access old records when the same child was involved in a subsequent report, to ascertain whether a pattern existed which indicated repeated abuse. Whereas, originally, section 422 (5) provided that unless an investigation revealed some credible evidence of the alleged abuse or maltreatment, the record was to be expunged, the 1996 amendment changed the expungement directive to one for legal sealing of unfounded reports. It also added provisions allowing the unsealing of unfounded reports during investigation of subsequent allegations involving the same child, and provided that unfounded reports would not be admissible as evidence in any judicial or administrative proceeding. {Ibid.) However, the Legislature saw fit to retain Social Services Law § 422 (4) (A) *848unchanged, except for the addition of three agencies which had not been previously included, which would be allowed access to those records. Section 422 (4) (A) (e) and (Z), which gave access to the courts and District Attorneys, were left unchanged.


However, a careful analysis of the issues that arise in cases involving child sexual or physical abuse reveals that the identity of the perpetrator plays a central role in the treatment of the victim. In these cases, the abuser is often a household member, or someone else the child knows and trusts, who serially abuses the victim over an extended period of time, with increasing frequency and degree. Where the abuser is in a trusted or loving relationship with the victim, grave psychological consequences are visited on the abused in addition to the physical injury inflicted. (See, Roland C. Summit, M.D., The Child Sexual Abuse Accommodation Syndrome, 7 <mask> & Neglect 177-193 [1983]; David Finkelhor, Current Information on the Scope and Nature of Child Sexual Abuse, 4 The Future of Children No. 2 [1994]; Child Maltreatment, US Dept of Health & Human Servs [1999].) Given that a pediatrician’s primary obligation is to protect the child patient (103 Pediatrics No. 1 [Jan. 1999]), determining the identity of the person who inflicted the injuries is of paramount significance to the treat*574ment and protection of that child.2


Dr. Katherine Canty Dr. Katherine Canty was deemed qualified to testify as an expert in <mask> pediatrics and expert diagnosis of suspected child abuse. She testified she examined E.S. on April 6, 2020 and felt “an area on the left clavicle that was slightly protuberant . . . [and] bulging out.” The skeletal survey showed “a healing fracture of his left clavicle.” Dr. Canty opined that in “nonmobile children” like E.S., “the primary mechanism by which a clavicle fracture occurs is either through forces applied to the shoulder, such as forceful squeezing or compression at the shoulder, or from local impact to the clavicle such as when a child is either thrown or slammed against a solid object.” She believed the fracture happened within a seven-day period before her examination of E.S. on April 6, 2020. When she interviewed Mother about the cause of the fracture, Mother could not explain how it happened. The first Dr. Canty heard of Mother’s assertion that she tightly squeezed E.S. between 2:00 a.m. and 3:00 a.m. on April 4 or 5, 2020 was upon reading the jurisdiction/disposition report submitted by DCFS. However, Dr. Canty did not believe Mother’s explanation was consistent with a clavicle fracture because E.S. did not have any reaction to the injury. “I would expect an infant with a fracture to exhibit pain symptoms . . . [such as] affective crying and fussiness.” “[I]t would be obvious to a caregiver both at the time that the injury happened and then, with normal observation, a pattern of discomfort . . . [and] some kind of awareness that the child was in pain or had some kind of injury.” She concluded: “[I]n the absence of characteristics that I feel would be typical of an infant’s reaction to pain, without those characteristics, I do not feel that the history provided is consistent and can explain [E.S.’s] fracture; and, therefore, in the


Upon determining that there was "some credible evidence” supporting a report of <mask> against the petitioner, the respondent Commissioner upheld the petitioner’s inclusion on the Statewide Central Register of Child Abuse and Maltreatment (hereinafter Central Register) (see, Social Services Law § 422 [8] [c] [ii]). We conclude that the respondent’s determination must be annulled and the petitioner’s name expunged from the Central Register.


1 Mother is not a party to this appeal. The officer also interviewed Mother and both children, and took photos of R.M.’s injuries. Mother brought R.M. to the hospital the following day, where doctors diagnosed him with “ ‘injury due to physical assault, bruising, contusion of right chest wall, [and] closed fracture of one rib of right side.’ ” A <mask> pediatrician opined that punches and kicks to R.M.’s chest and abdomen area could have been deadly or led to internal injuries, liver laceration or bruising, bruising to the intestine and other organs, or a pulmonary hemorrhage. Further, it was unlikely the injuries were caused by another child. D.M. was also examined by a child abuse pediatrician. Although his exam was normal, D.M. expressed during the exam that he felt unsafe with Father. On March 8, 2021, Mother filed a restraining order to prevent Father from contacting her or the children. In addition to the most recent incident of physical abuse against R.M., Mother described two prior incidents when Father physically abused the children. Specifically, in October 2018, Mother observed Father punch D.M. in the head twice and call him a “ ‘momma’s boy.’ ” The children had also disclosed to her in December 2020 that Father had punched D.M. in the head and called him “ ‘stupid,’ ” and that their stepmother picked up R.M. and threw him down. The application further indicated that Father had a history of physically and verbally abusing Mother during their prior relationship. She alleged that Father had thrown things at her, dislocated her thumb, and caused bruising all over her body. She also reported that she suffered a miscarriage in 2014 after Father repeatedly hit and kicked her. Based on the information Mother provided in the application, a temporary restraining order was granted and a hearing was set for mid-March.


The individual defendants, Detective Brimlow, Detective Doppman and Caseworker Lauro, were not parties to the prior action. Consequently, they do not seek dismissal on the grounds of res judicata. Rather, they claim that they are shielded from plaintiff’s Federal civil rights claim on the grounds of qualified immunity. Again, the conduct at issue is the interrogation and physical examination of the then three-year-old plaintiff without parental consent or court approval, in the context of a <mask> investigation. Plaintiff argues in opposition that because of a decision changing the law in August 1990, the qualified immunity defense is not available to these defendants.


Defendant hospital is a mandated reporter of certain suspected <mask> or maltreatment under Social Services Law § 413. Pursuant to its legal obligation, defendant filed a report *251of suspected abuse regarding a 17-year-old girl treated at the hospital for injuries allegedly inflicted by her father.1 In the course of the preliminary investigation, a caseworker with Schuyler County Child . Protective Services (CPS) requested the girl’s medical records from defendant. The request was denied.


In short, Nave alleged that Dr. Feinberg and Rouse received reports of <mask> during an interview with one of the children during the course of the custody evaluation but failed to disclose the abuse reports to her or to the Cabinet for Health and Family Services (the Cabinet) pursuant to Kentucky Revised Statutes (KRS) 620.030. Nave also disputed the contents of the custody report provided to the Cabinet, alleging that it concealed information related to abuse and to her and Patten's psychological testing results.


Such statute provides, inter alla, that reports of the respondent Commission shall be confidential and shall only be made available to "any person engaged in a bona fide research purpose, provided, however, that no information identifying the subjects of the report or other persons named in the report shall be made available to the researcher unless it is absolutely essential to the research purpose and the department gives prior approval”. Petitioner contends that as a professional journalist engaged in investigative research for the purpose of writing an article on <mask> in a particular psychiatric facility, she is within the exception of confidentiality provided by the statute. Respondents interpreted the statute as being limited to academic or scientific research and denied petitioners’ Freedom of Information Law request.


On May 20, 2021, the [court] granted LCCYS a verbal order for emergency protective custody, finding that under the circumstances of <mask>, LCCYS’s immediate taking of custody was necessary to preserve the life and well-being of [Child] and her sibling. The [c]ourt at that time found 1) LCCYS had made reasonable efforts to prevent the need for removal by attempting to locate the children’s parents, and 2) given the inability to find Mother, the lack of preventive services was reasonable.


Generally, acts or omissions that constitute significant impairment include, but are not limit to, physical abuse, severe neglect, abandonment, drug or alcohol abuse, or immoral behavior by a parent. In re S.T. , 508 S.W.3d at 492 ; In re De La Pena , 999 S.W.2d at 528 ; May , 829 S.W.2d at 376-77 ; see also In re R.L. , 2017 WL 1496955, at *15. "Other considerations may include parental irresponsibility, a history of mental disorders and suicidal thoughts, frequent moves, bad judgment, <mask>, and an unstable, disorganized, *82and chaotic lifestyle that has put and will continue to put the child at risk." In re S.T. , 508 S.W.3d at 492 ; see also In re R.L. , 2017 WL 1496955, at *15. The material time to consider is the present , and evidence of past conduct may not, by itself, be sufficient to show present unfitness. In re S.T. , 508 S.W.3d at 492 ; see also May , 829 S.W.2d at 377 ("If the parent is presently a suitable person to have custody, the fact that there was a time in the past when the parent would not have been a proper person to have such custody is not controlling."); In re M.W. , 959 S.W.2d at 666. Moreover, evidence that a non-parent would be a better custodian of the child is "wholly inadequate." Whitworth , 222 S.W.3d at 623 ; see also Lewelling , 796 S.W.2d at 167 ("It is no longer adequate to offer evidence that the nonparent would be a better custodian."); In re De La Pena , 999 S.W.2d at 529 ("There is no dispute that [nonparent] ha[s] provided a caring and nurturing home for [the child]. However, in order for [her] to gain custody of [the child], she must show more.").


"[T]he crimes of <mask>, and complementary statutory provisions, were created because the harm suffered by identity theft victims went well beyond the actual property obtained through the misuse of the person's identity. Identity theft victims' lives are often severely disrupted. For example, where a thief used the victim's identity to buy a coat on credit, the victim may not be liable for the actual cost of the coat. However, if the victim was initially unaware of the illicit transaction, the damage to the person's credit may be very difficult to repair. The perpetrator could commit other crimes by using the victim's identity, causing great harm to the victim. Thus, identity theft in the electronic age is an essentially unique crime, not simply a form of grand theft." ( Id. at p. 808, 141 Cal.Rptr.3d 34.) Our analysis of the statute and the cases interpreting it lead us to conclude Sanders violation of the "identity theft" statute was not a theft as it relates to the cardholder. It was an unlawful use, one of several unlawful uses set forth in the statute. To the extent there was a theft within the scope of the Proposition 47 limitations in section 490.2, it was against the property interest of the merchants who were defrauded by appellant's presentation of the card as belonging to her, a false pretense.


¶21 We are guided by our decision in Spears, which recognized that attorney fees are appropriately ordered as restitution when an attorney is reasonably necessary to remedy the harm caused by the criminal conduct. Spears, 184 Ariz. at 291–92. Thus, just as in the probate proceedings at issue in Spears, attorneys may be reasonably necessary to rectify harms directly caused by criminal conduct in several scenarios, including financial fraud, embezzlement, or <mask>. Similarly, when a victim retains an attorney to enforce her rights in the criminal proceedings, the court should order payment of those fees as restitution when attorneys are reasonably necessary to enforce these rights. Setting this standard accommodates constitutional and legislative directives that restitution reimburse a victim for losses caused by criminal conduct and simultaneously avoids any STATE V. REED Opinion of the Court


The court finds that this defendant, charged with the nonviolent offenses of falsifying business records and <mask> (all no greater than class E felonies), is eligible to participate in the judicial diversion program. The court is not issuing a broad ruling that all nonviolent offenses, or all E felonies, are statutorily eligible for diversion. Rather, the court, in its guided discretion, has determined that this defendant is eligible, for the reasons stated above.


For his part, defendant argues the overall statutory scheme of Proposition 47 shows the electorate did not intend to limit the underlying crimes for which resentencing on a second degree commercial burglary conviction would be appropriate. Pointing to the fact that Proposition 47 bars one who has been convicted of both forgery and <mask> from having their forgery conviction considered a misdemeanor even where the value of the forgery was below $950, defendant contends that the lack of a similar limitation on charges related to shoplifting offenses demonstrates a clear intent not to limit which offenses are eligible to qualify as a shoplifting offense. We disagree. The limitations added to the forgery statute serve to differentiate minor offenses of forgery, where a misdemeanor conviction has been deemed appropriate, from crimes such as identity theft, where the electorate has chosen to ensure that greater punishments remain available. That such a provision was added does not detract from the ability of the electorate to similarly limit the scope of relief available by utilizing specific words in a *683statute rather than unique clauses. Here, the evidence is persuasive that the electorate's choice of the word "larceny" was an inherently limiting phrase to the meaning of the crime. Once utilized, there was no reason to additionally limit the scope of the offense. In contrast, no similarly limiting word could be used to differentiate forgery without the use of identity theft, from forgery involving the use of identity theft. As such, it was reasonable for the electorate to approve of additional limiting language and the decision to do so bears no relationship to the definition of larceny in the shoplifting statute. *571Given the broader support for the conclusion that larceny, as used in the shoplifting statute, should be understood to encompass its historical definition, neither inclusion of the shoplifting statute in the burglary section of the Penal Code, nor the general similarities between the language used to define the crime and the offense of burglary, nor the existence of limiting factors with respect to the crime of forgery are compelling evidence that the word larceny should be understood to mean theft generally. As such, the proper interpretation of larceny as used in the shoplifting statute is the historical definition of the crime.


Defendant argues that the only crime he intended to commit when he entered the bank was felony check forgery (§ 475, subd. (c)), a crime that was charged but dismissed pursuant to his plea to second degree burglary. The Barba court noted that while the crimes of <mask> and forgery had "some overlap," "the statutes are concerned with remedying two different wrongs." (Barba, supra, 211 Cal.App.4th at p. 225, 149 Cal.Rptr.3d 371.) Thus, the crime of forgery is committed when a person possesses either a real or a fictitious check. Section 475, subdivision (c), defining forgery, provides, "Every person who possesses any completed check, money order, traveler's check, warrant, or county order, whether real or fictitious, with the intent to utter or pass or facilitate the utterance or passage of the same, in order to defraud any person, is guilty of forgery."


-16- 7578 Providence laid up in the bed, you know, after surgery and at their disposal, there’s nothing I can do. Fairly read, Guy’s testimony indicates that both experiences made him feel helpless, not that the two experiences were indistinguishable. And at other points in his testimony Guy clearly attributed specific harm to the disclosure, including “paranoia” and “conspiracy issues”; a mental condition that was less balanced and caused him to be less “at ease” than before the disclosure; and a decision to not apply for Medicaid since his information was revealed because of the resulting distrust. Finally it is not the case, as Providence argues, that Guy’s attempt to recover damages for future therapy was doomed by his failure to obtain mental health treatment since the assault. Guy testified that he had contacted multiple therapists and even met with one, but the meeting was unsuccessful because the disclosure had impaired his ability to trust. Guy also testified about his desire to see a therapist in the future. And although true that Guy had not applied for Medicaid in order to facilitate mental health treatment, Guy testified that the reason he had not applied for Medicaid was that his experience with Providence made him wary of sharing his medical information. A jury might conclude that Guy did not need money for psychiatric care because he did not have a history of receiving such care. But it could also conclude that Guy did not obtain this care at least in part because of the paranoia and mistrust caused by Providence, and that Guy should not be penalized for suffering from the very paranoia and mistrust for which he now seeks redress. Finally, even if a jury concluded that Guy did not need damages for future therapy, it could still conclude that he needed damages for home security and an <mask> prevention system, as he requested at trial.


Proposition 47 amended section 473, the general forgery sentencing statute, so that it now contains two subdivisions. Subdivision (a) preserves the prior "wobbler" language and states: "Forgery is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170." (§ 473, subd. (a).) Subdivision (b) spells out exceptions to this general proviso and states in relevant part: "Notwithstanding subdivision (a), any person who is guilty of forgery relating to a check, bond, bank bill, note, cashier's check, traveler's check, or money order, where the value of the check, bond, bank bill, note, cashier's check, traveler's check, or money order does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions. ... This subdivision shall not be applicable to any person who is convicted both of forgery and of <mask>, as defined in Section 530.5." (§ 473, subd. (b).)


The public interest here clearly outweighs the private interests of the parties as Ms. Caminite has failed to demonstrate that public access to the court documents filed in this proceeding would likely result in harm to a compelling interest of the movant (see Mancheski v Gabelli Group Capital Partners at 502). Moreover, in considering whether to seal the record in a guardianship proceeding, the privacy rights of, and the best interests of, the alleged incapacitated are paramount, and not the interests or privacy rights of other litigants (see Matter of Linda E. [Justin B.] at 702-703). Although the legislature should reevaluate Mental Hygiene Law § 81.14 in view of the broad impact of HIPAA on guardianship proceedings, the unfortunate ease of international <mask>, and the number of sister states which presumptively seal court records in guardianship proceedings, good cause has not been established to seal the record here.


Here the facts of Brayton's <mask> crime are similar to Gonzales , Garrett and Jimenez . Brayton used a stolen driver's license belonging to another person to obtain a $107.07 store credit. She obtained the credit by the false representation that she was the person named in that driver's license. In Gonzales , entering a bank to cash a stolen check fell within the purview of the resentencing provision. In Garrett , using another person's credit card to purchase property constituted misdemeanor shoplifting under Proposition 47. Similarly, here it was Brayton's use of another person's driver's license that allowed her to obtain the credit.


In March 2019, while Jimenez was still pending, we issued an opinion resolving defendant’s appeal by holding that, as the Attorney General had acknowledged, her conviction for burglary had to be reduced to shoplifting under new section 459.5, subdivision (a), and further holding that, as the Attorney General had disputed, her five convictions for <mask> and mail theft in violation of section 530.5, subdivisions (a), (c), and (e) also had to be reduced to misdemeanors in violation of section 459.5, subdivision (a), or of section 490.2. The California Supreme Court granted review of this case and deferred briefing pending its decision in Jimenez. In March 2020, the court decided Jimenez, holding that Proposition 47 does not apply to convictions for unlawfully obtaining and using personal identifying information in violation of section 530.5, subdivision (a), and that such convictions may not be reduced to misdemeanor shoplifting (§ 459.5). (Jimenez, supra, 9 Cal.5th at pp. 58–59.) 2 Jimenez did not address mail theft in violation of section 530.5, subdivision (e) (hereafter, section 530.5(e)). After deciding Jimenez, the court transferred this case back to us with directions to vacate our decision and reconsider the case in light of that decision. Defendant and the Attorney General have each filed supplemental briefs in which they do not dispute the proper disposition of this appeal as to six of the seven convictions at issue. The parties agree that nothing in Jimenez undermines our original holding that defendant’s burglary conviction must be


On October 23, 2003, the defendant was charged with <mask> in the third degree (Penal Law § 190.78 [1]), unlawful possession of personal identification information in the third degree (Penal Law § 190.81), and criminal impersonation in the second degree (Penal Law § 190.25 [1]). These charges are all class A misdemeanors, and the crimes were alleged to have occurred on October 3, 2003. The defendant was arraigned on a criminal court complaint on October 24, 2003. The People filed support*174ing depositions corroborating hearsay information contained in the complaint at the time of the arraignment, thereby converting it into an information.


Lastly, DeskSite posits that money laundering is a "known concern" within the automobile industry, especially with high-end exotic cars. Even if we accept this to be true, the use of a third party's check to pay for a car by itself is still not a red flag of money laundering, particularly where, as here, the check contains a memo line with the customer's initials on it. Further, courts have refused to fashion new duties to deal with similar endemic problems such as <mask> and have justified that refusal with reasoning that is equally applicable here: "Given the scope of the problem and the consequences to the community of imposing a noncontractual duty with resulting liability for breach, a decision to shift the burden of loss from the actual victim to a third party duped by the thief is one to be made, if at all, by the Legislature, not the judiciary." ( Rodriguez , supra , 162 Cal.App.4th at p. 466, 75 Cal.Rptr.3d 543.)


Here, the sole allegations are that defendants opened at least one cellular account in the name of Avi Natanov and that Avi Natanov is not the real name of either defendant. Of course, conduct equally compatible with guilt or innocence cannot supply reasonable cause (see People v Carrasquillo, 54 NY2d 248, 254 [1981]). If Avi Natanov were not a real person, but merely an alias, then no identity of “another person” would be stolen. Accordingly, in the absence of any evidentiary facts that Avi Natanov is a real person whose identity was improperly assumed by defendants — perhaps in the form of a supporting deposition from an Avi Natanov asserting that defendants had no permission or authority to open a cellular account in his name — the information fails to establish every element of the crime of <mask>.


The defendant in Bush committed offenses between October 2000 and January 2002. (Bush, supra, 245 Cal.App.4th at p. 998, 200 Cal.Rptr.3d 190.) During that period, section 368, subdivision (d) only referred to theft or embezzlement from an elder victim and did not reference forgery, fraud, or <mask> under section 530.5. (§ 368, former subd. (d), added by Stats. 1998, ch. 936, § 7.5.)


The panel affirmed convictions for possession of device making equipment (18 U.S.C. § 1029(a)(4)), possession of at least fifteen unauthorized access devices (18 U.S.C. § 1029(a)(3)), aggravated <mask> (18 U.S.C. § 1028A(a)(1)), and possession of stolen mail (18 U.S.C. § 1708), in a case in which the defendant argued that the district court reversibly erred by instructing the jury that “intent to defraud” under 18 U.S.C. § 1029(a)(3) and (4) means an intent to deceive or cheat.


*395By notice of motion dated June 13, 2013, defendant moved for an order to set aside the jury verdict pursuant to CPL 330.30 (1) on the ground that the court’s response to the jury note was improper. Specifically, defendant contends that the court erred in providing to the jury a definition of “financial loss” which is not contained in the <mask> statute. Defendant argues that appellate courts have cautioned trial courts against reliance upon definitions contained in other sections of the Penal Law or found in other state or federal statutes absent legislative authority to do so.


Simply put, Sanders contends that since the burglary charges have been reclassified as misdemeanor shoplifting and the amount of goods taken from the merchants was under $950, the section 530.5 violations must be considered as petty thefts and therefore must be reduced to misdemeanors and dismissed. As we will point out, even though section 530.5 violations are often referred to as "<mask>," they are not theft offenses. Theft is not an element of the offense. The offense is not in the theft chapter (chapter 5) of the Penal Code, but is instead listed in chapter 8 dealing with false personation. The gravamen of the section 530.5, subdivision (a) offense is the unlawful use of a victim's identity. Moreover, as we will discuss, there were multiple victims in the offenses charged. The entry into commercial establishments to obtain property by false pretenses victimized the merchant, and not the cardholder. The cardholder is a victim because her identity was unlawfully used.


awards, arguing the trial court abused its discretion in awarding $6,600 in victim restitution to D.S. and T.S., a married couple, who were the victims of the conduct charged in count 23. We affirm the award. FACTUAL AND PROCEDURAL BACKGROUND The third amended felony information charged defendant with grand theft (Pen. Code, § 487, subd. (a);1 counts 1, 4, 6, 10-17, 23-24); filing a false or forged instrument with the county recorder’s office (§ 115, subd. (a); count 2); taking or driving a motor vehicle with intent to deprive the owner of title to or possession of the vehicle (Veh. Code, § 10851, subd. (a); count 3); <mask> (§ 530.5, subd. (a); count 5); forgery (§ 470, subds. (c), (d); counts 7-9); fraudulently inducing a person to sign a contract (Civ. Code, § 2945.4, subds. (a), (e), (f); counts 18-20); and unlawful practice of law (Bus. & Prof. Code, § 6126, subd. (a); count 21). The information also alleged as to counts 8 and 9 that defendant had been released on bail when those offenses were committed (§ 12022.1) and as to all counts that defendant had engaged in a series of felonies the material element of which was fraud and embezzlement in an amount exceeding $500,000 (§ 186.11, subd. (a)) (a great-taking enhancement). Defendant resolved the matter by pleading no contest to counts 1, 2, 4, and 9, as well as admitting the on-bail enhancement and the great-taking enhancement in exchange for a stipulated prison sentence of 12 years. The remaining charges and allegations were dismissed with a Harvey2 waiver for purposes of restitution. On February 16, 2018, defendant was sentenced in accordance with the plea agreement. He was also ordered to pay certain fees and victim restitution. The court retained jurisdiction to award further restitution to other victims of defendant’s crimes.


*492*684The jury here was instructed pursuant to CALCRIM No. 2040 that to find defendant guilty of <mask> in violation of section 530.5, subdivision (a), "the People must prove that: [¶] 1. The defendant willfully obtained someone else's personal identifying information; [¶] 2. The defendant willfully used that information for an unlawful purpose; [¶] AND [¶] 3. The defendant used the information without the consent of the person whose identifying information he was using." The jury was further instructed that "An unlawful purpose includes ... Falsely representing or identifying one's self as another person to a peace officer, upon a lawful detention, to evade the proper identification of himself. [¶] or [¶] Giving information to a peace officer, who is performing his duties under the vehicle code, when he knows the information is false." Defendant concedes that not every violation of section 148.9 or Vehicle Code section 31 results in a violation of section 530.5, subdivision (a) but argues that the rule applies in this instance because the manner in which he violated section 148.9 and Vehicle Code section 31 would commonly result in a violation of section 530.5. We disagree.


<mask>, without question, is becoming one of the fastest growing criminal offenses in the 21st century. The Federal Trade Commission (FTC) estimates that in a five-year period prior to early 2003, in the United States alone, there were 27.3 million reported cases of identity theft (Thomas Fedorek, Computers + Connectivity = New Opportunities for Criminals and Dilemmas for Investigators, 76 NY St BJ 10, 15 [Feb. 2004]). The ensuing fraud caused damages in the billions for businesses, *893financial institutions and consumers, and subjected the victims to hours upon hours of work related to straightening out problems caused by the theft of their identity.6


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 (see Green, 68 NY2d at 153). Clearly, the more favorable interpretation *227would require the People to prove both elements, that defendant used Catalfamo’s personal identifying information and that he consequently assumed Catalfamo’s identity. In addition, we think this is the more sensible reading according to the plain meaning of the statute because the word “by,” as used in the phrase “assumes the identity of another person by [one of the enumerated methods],” indicates the vehicle by which the assumption of identity takes place. It does not, however, indicate that assumption of identity is an inevitable consequence of using a person’s identifying information. Put another way, although the statute provides three alternative means by which a defendant may commit the offense, assumption of identity must be the end result. Accordingly, whether defendant “assumed the identity” of another is a separate and essential element of the offense of <mask> which must be proven beyond a reasonable doubt.


Here, Jimenez's conduct is identical to Gonzales's conduct. They both entered a commercial establishment during business hours for the purpose of cashing stolen checks valued at less than $950 each. Both defendants committed "theft by false pretenses," which "now constitutes shoplifting under [section 459.5, subdivision (a) ]." ( Gonzales , supra , 2 Cal.5th at pp. 862, 868-869, 216 Cal.Rptr.3d 285, 392 P.3d 437 [shoplifting as defined in section 459.5, subdivision (a) encompasses all thefts, including theft by false pretenses].) Section 459.5, subdivision (b) makes it clear that " '[a]ny act of shoplifting as defined in subdivision (a) shall be charged as shoplifting,' " and that " '[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property.' " ( Gonzales , at p. 863, 216 Cal.Rptr.3d 285, 392 P.3d 437, italics added.) The trial court properly *1290concluded that Jimenez's acts of shoplifting could not be charged as felony <mask> under section 530.5, subdivision (a). ( Gonzales , at p. 862, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Under section 495, subdivision (b), they could be charged only as misdemeanor shoplifting. ( Gonzales , at pp. 862, 876-877, 216 Cal.Rptr.3d 285, 392 P.3d 437 ; see 2 Couzens, Bigelow & Prickett, Sentencing Cal. Crimes (The Rutter Group 2017) § 25:4, p. 25-29 ["If section 459.5 applies, the defendant may not be alternatively charged with burglar[y] or identity theft"].)


Acosta, J. This appeal raises questions about the elements of <mask> and whether intangible property can be criminally pos*220sessed, where a defendant used his associate’s credit card number to pay for hotel expenses without authorization. Specifically, we are called upon to determine, first, whether assumption of identity is a discrete element of identity theft or whether it occurs automatically when a person uses another’s personal identifying information, and second, whether criminal possession of stolen property includes intangible property, namely a credit card number. Regarding the first issue, we find that to secure a conviction for identity theft the People must prove not only that a defendant used another’s personal identifying information, but that he or she consequently assumed the identity of that person. Because the hotel was aware of defendant’s identity, he did not assume the identity of his associate by charging the credit card and, accordingly, the evidence was legally insufficient to support his conviction of identity theft. As to the second issue, we have determined that the legislature intended intangibles, including credit card numbers, to fall within the ambit of criminal possession of stolen property. Defendant constructively possessed his associate’s stolen credit card number, and thus he was properly convicted of the latter offense.


Defendant was convicted on six counts relating to the two forged checks; two counts of <mask> (§ 530.5, subd. (a)), two counts of second degree commercial burglary (§ 459, subd. (b)), and two counts of check forgery (§ 475, subd. (c)). In bifurcated proceedings, defendant was found to have several prior convictions and to have served several prior prison terms. Defendant received a sentence of six years in prison.


*390The trial court denied the petition. ( Ibid. ) The Court of Appeal reversed, rejecting the Attorney General's argument that because Garrett intended to commit felony <mask> ( § 530.5 ), section 459.5 did not apply. ( Garrett , at pp. 86-90, 203 Cal.Rptr.3d 369.) The court reasoned: "[E]ven assuming [Garrett] intended to commit felony identity theft, he could not have been charged with burglary under ... section 459 if the same act -- entering a store with the intent to purchase merchandise with a stolen credit card -- also constituted shoplifting under [s]ection 459.5." ( Id. at p. 88, 203 Cal.Rptr.3d 369.) Based on this reasoning, the court held that the use of a stolen credit card to purchase merchandise valued at less than $950 constitutes shoplifting under section 459.5. ( Garrett, at p. 90, 203 Cal.Rptr.3d 369.)


At the hearing, the court stated it would first hear from the People because they had filed an objection. The prosecutor began: "In case 0664 the charge is a 459 second; however, we believe that it is not entitled to resentencing because the entry was into Wells Fargo Bank and the defendant attempted to cash a check belonging to another person which would be an <mask> and, therefore, it would be entering the bank with the intent to commit a felony, identity theft." After clarifying that the check was written off someone else's account, the prosecutor continued: "In case 0901, it would be the same argument as to the 459 second and the defendant entered SR Food and Liquor and attempted to cash two checks belonging to another person which again *829would be the identity theft issue; however, he would be entitled to resentencing on the 476 [fictitious check count] because the amounts were less than $950."


Mr. Ellis cites a number of cases where prejudice was shown. In many of those cases, however, a required definition was omitted entirely from the instructions. See State v. Cooper , 215 S.W.3d 123, 127 (Mo. banc 2007) (holding that omission of "knowingly enter[ing] Victim's house 'unlawfully' " from the instructions was prejudicial); State v. Arnold , 397 S.W.3d 521, 528 (Mo. App. S.D. 2013) (omitting definition from the jury instructions for <mask> was plain error); State v. Stover , 388 S.W.3d 138, 153-55 (Mo. Banc 2012) (omitting "knowing of the substance's content and character" element from the jury instructions on first-degree trafficking of a controlled substance was plain error); State v. Neal , 328 S.W.3d 374, 383 (Mo. App. W.D. 2010) (omitting "threaten[ed] the immediate use of a dangerous instrument against any person" element from jury instruction was plain error).


The second count charges the defendant with <mask> in the second degree. In relevant part, Penal Law § 190.79 (3) provides that this crime is committed by a person who “knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, . . . and thereby . . . commits or attempts to commit a felony or acts as an accessory to the commission of a felony.” This indictment specifically alleges that the defendant “assumed the identity of an aunt of Noah Pozner” and thereby committed the class E felony of scheme to defraud in the first degree.


On May 28, 2013, during its deliberations, the jury sent the court a note requesting “clarification of the definition of financial loss in the context of <mask>.” (Court exhibit No. 2.) The attorneys first read the note, and then the court read it into the record. Because the term “financial loss” is not specifically defined in the Penal Law or the pattern jury charges in the context of identity theft under Penal Law § 190.80 (2), the court afforded counsel an opportunity to propose a clarifying response. Defense counsel proposed that the court instruct the jury that “financial loss would be that the victims suffered a financial loss as a result of . . . element one of the four elements.” (Tr at 15, lines 8-11.)


However, in light of the prevalence of <mask> today, our fact pattern is likely to be repeated. Thus, it is appropriate to offer some comment on these issues. State Farm’s obligation to appear and defend in this suit must be weighed in terms of the strong public policy heretofore expressed and depends upon the efficacy of the service upon Jacques A. Baker at the address provided in the police report in conferring jurisdiction over the owner-driver actually involved in this accident. This, in turn, devolves to the operation of the provision for service upon unknown parties (Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 1024, at 249 [1997 ed],5 and to the judicial refusal to entertain challenges to jurisdiction when a party has provided an incorrect address. (Gardner v Tully, 227 AD2d 587 [2d Dept 1996]; Harrington v Dickinson, 159 AD2d 876 [3d Dept 1990].)


The public interest here clearly outweighs the private interests of the parties as Ms. Caminite has failed to demonstrate that public access to the court documents filed in this proceeding would likely result in harm to a compelling interest of the movant (see Mancheski v Gabelli Group Capital Partners at 502). Moreover, in considering whether to seal the record in a guardianship proceeding, the privacy rights of, and the best interests of, the alleged incapacitated are paramount, and not the interests or privacy rights of other litigants (see Matter of Linda E. [Justin B.] at 702-703). Although the legislature should reevaluate Mental Hygiene Law § 81.14 in view of the broad impact of HIPAA on guardianship proceedings, the unfortunate ease of international <mask>, and the number of sister states which presumptively seal court records in guardianship proceedings, good cause has not been established to seal the record here.


Plaintiffs allege that on January 26, 2012, Clincy M. Robinson was arrested and charged with <mask> in the first degree (one count) and criminal possession of computer related materials (two counts), scheme to defraud in the first degree (two counts) and unlawful possession of personal information in the third degree (one count). Mr. Robinson was charged with being in possession of 25 face sheets from NSUH, data that is maintained on the computer network of NSUH, and being in possession of computer data consisting of personal identifying information for over 900 individuals, without authorization, and it is alleged that he pleaded guilty to these charges and was sentenced on December 13, 2012 in the District Court of Nassau County.


Our analysis tracks that of the Supreme Court in Gonzales. In Gonzales , a defendant had been charged with two felonies-forgery and second-degree burglary-where each involved the same property: forged $125 checks that he attempted to cash at a bank. ( Gonzales , supra , 2 Cal.5th at p. 862, 216 Cal.Rptr.3d 285, 392 P.3d 437.) The defendant had pled guilty to the burglary charge and the court had dismissed the forgery charge. ( Ibid. ) The Supreme Court rejected the prosecution's claim that the defendant was "not eligible for resentencing because he also entered the bank intending to commit <mask>." ( Id. at p. 876, 216 Cal.Rptr.3d 285, 392 P.3d 437.) It instead agreed with the defendant's position that "even assuming he entered the bank with an intent to commit identity theft, section 459.5, subdivision (b) would have precluded a felony burglary charge because his conduct also constituted shoplifting." ( Ibid. ) Thus, "the shoplifting statute would have precluded a burglary charge based on an entry with intent to commit identity theft here because the conduct underlying such a charge would have been the same as that involved in the shoplifting, namely, the cashing of the same stolen check to obtain less than $950." ( Id. at pp. 876-877, 216 Cal.Rptr.3d 285, 392 P.3d 437.)


Unlike Powell and Hernandez, this court relied upon the definition of “financial loss” contained in federal case law and the Federal Sentencing Guidelines specifically used in the context of financial crimes, including “Larceny, Embezzlement, and Other Forms of Theft . . . Fraud and Deceit.” (US Sentencing Guidelines Manual § 2B1.1.) These offenses closely mirror the offense of <mask>, which contains as an element “financial loss,” which was the subject of the jury note. The offenses enumerated in the Federal Sentencing Guidelines (US Sentencing Guidelines Manual § 2B1.1) protect the same interests that the New York Legislature sought to protect when it enacted Penal Law § 190.80.


. There are rare cases in which the government determines that disclosure is appropriate and such situations must be justified by a clear government interest which prevails in a balancing test. For example, in In re Crawford (194d 954 [9th Cir 1999], cert denied sub nom. Ferm v United States Trustee, 528 US 1189 [2000]), a lay preparer of bankruptcy petitions objected to a statutory requirement of 11 USC § 110 (c) that he place his identifying Social Security number on court papers. The Ninth Circuit recognized a right of informational privacy in relation to a Social Security number, which was a conditional right to be weighed against the governmental interest (194d at 959). It opined that the threat of <mask> was not an immediate harm, but one remote in time and place and to be undertaken by a nongovernmental actor and that — unlike disclosure of HIV status, sexual orientation, or genetic makeup — a Social Security number “is not inherently sensitive or intimate information, and its disclosure does not lead directly to injury, embarrassment or stigma” (194d at 959-960). It held a sufficient justification for the requirement could be found in the legislative purpose and bankruptcy’s special interest in public access to judicial proceedings (194d at 960).


*945In view of the privacy interests at stake, disclosure of the records of respondents containing dates of birth and home addresses, and other personal information of inmates could easily be used to facilitate <mask>, thereby resulting in both economic and personal hardship to inmates (Matter of Scott, Sardana & Pomeranz v Records Access Officer of City of Syracuse, 65 NY2d 294 [1985]). The dates of birth of inmates, who enjoy a lesser degree of privacy, have been protected from disclosure under FOIL (Matter of Investigation Tech., LLC v Horn, 4 Misc 3d 1023[A], 2004 NY Slip Op 51010[U] [2004]). The decision of respondents to deny petitioner access to dates of birth and addresses of inmates was not arbitrary and capricious nor was it an abuse of discretion.


belonging to [Ahmar Siddiqi], during and in relation to the offense” charged in Count 2; and Count 4, possession of stolen mail in violation of 18 U.S.C. § 1708. The superseding indictment also charged Saini with aiding and abetting Paulina Schaiy to commit all four offenses. Schaiy had pleaded guilty to aggravated <mask> and agreed to cooperate with the government.


Second, the court in People v. Grayson, supra, 241 Cal.App.4th at pages 458-459, 193 Cal.Rptr.3d 658, found that possession of access card account information with fraudulent intent under section 484e, subdivision (d) was distinguishable from other theft crimes because of the significant risk of <mask> and loss to the victim. The court explained that there was no authority to suggest the electorate intended to "undercut" the broad consumer-protection purpose behind section 484e, subdivision (d) by valuing such a risk at $950 or less. (People v. Grayson , at p. 460, 193 Cal.Rptr.3d 658.)


The defendant's contentions that the two counts of <mask> in the first degree were multiplicitous and that her conviction of both counts violated constitutional principles of double jeopardy are unpreserved for appellate review (see CPL 470.05[2]; People v Gonzalez, 99 NY2d 76, 82; People v Rosario, 184 AD3d 676, 677). In any event, the contentions are without merit. The defendant was convicted under distinct subdivisions of the statute, each requiring proof of an additional fact (see Penal Law § 190.80[1], [2]; CPL 200.30[2]; People v Alonzo, 16 NY3d 267, 269-271; People v Ayala, 172 AD3d 1084, 1084; Matter of Lavon S., 136 AD3d 1044, 1046).


In March 2017, People v. Gonzales (2017) 2 Cal.5th 858, 216 Cal.Rptr.3d 285, 392 P.3d 437 held that entering a bank to cash a stolen check for less than $950 is "shoplifting" within the meaning of section 459.5. ( *953Id. at p. 862, 216 Cal.Rptr.3d 285, 392 P.3d 437.) The Court further held that even if the defendant entered the bank with an intent to commit <mask>, he could only be charged with shoplifting under section 459.5. ( Id. at p. 876, 216 Cal.Rptr.3d 285, 392 P.3d 437.)


*655Plaintiff has attached as an exhibit her credit score with TransUnion as 702 as of December 23, 2004, which would seem to indicate that any adverse ratings resulting from the actions of the defendants have been erased from her credit report. By this documentation, plaintiff is representing that it took her almost two years to repair her credit. In fact, the TransUnion report shows only two accounts as reported with a negative history. One is a Home Depot account that plaintiff indicates is one of the fraudulently opened credit cards. The second negative account is the Staten Island Savings Bank mortgage. All of the other wrongfully opened accounts have apparently been removed from plaintiff’s credit history. The fact that one or more of these accounts may still improperly be appearing may give rise to a cause of action pursuant to General Business Law article 25 against the entities reporting these accounts and carrying them on the plaintiffs credit history. There is also a question as to whether or not the Home Depot account being reported is the same fraudulent account since it is listed as opened in August 2002 while the one which plaintiff asserts was part of the <mask> was opened in July 2002. In addition, it appears to have a different account number than the one opened by the defendants. Also, the late payment being reported is as of April 2003, a date four months after which plaintiff states she learned of the identity theft and notified the credit reporting agencies and cardholders.


Huerta is consistent with Gonzales , supra , 2 Cal.5th 858, 216 Cal.Rptr.3d 285, 392 P.3d 437. In Gonzales , the Supreme Court interpreted section 459.5 to include entry into a bank with intent to commit <mask> because that entry also constitutes shoplifting. And although Proposition 47 omits any reference to identity theft, "the focus of the ballot pamphlet was on the value of the property, setting the threshold for felony treatment at $950." ( Id . at p. 870, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Because Gonzales engaged in conduct that constituted shoplifting under section 459.5, he could only be charged with misdemeanor shoplifting. ( Id . at p. 876, 216 Cal.Rptr.3d 285, 392 P.3d 437.)


If the intention were to exclude offenses under section 484e, subdivision (d), section 490.2, subdivision (a) could have been written so its introductory language was more narrow or included specified exceptions. (See Romanowski, supra, 242 Cal.App.4th at pp. 156-157, 194 Cal.Rptr.3d 861.) Moreover, there is evidence that Proposition 47 contemplated the risk of <mask> crimes. For example, Proposition 47 also amended section 473, check forgery, making it a misdemeanor where the value of the check does not exceed $950. Checks contain the same type of account information that is found on an access card, as well as the owner's address. Thus, a person in possession of another person's check is likely to have access to the same identifying information as a person who acquires and retains access card account information. Yet, section 473 explicitly states that the changes effectuated by Proposition 47 apply unless the defendant is convicted both of forgery and of identity theft, as defined in section 530.5. The check forgery provision indicates that the risk of identity theft is not sufficient to block Proposition 47 relief; rather, it is only when a defendant has actually been convicted of identity theft that check forgery would not be reclassified as a misdemeanor. Furthermore, the identity theft provisions under section 530.5 can be charged as either a misdemeanor or a felony, so the intent to protect consumers against identity theft crimes is not synonymous with a felony charge.


By indictment No. 3633/13, the defendant is charged with grand larceny in the third degree, a class D felony offense pursuant to Penal Law § 155.35 (1), and <mask> in the first degree, a class D felony offense pursuant to Penal Law § 190.80 (1). On September 30, 2013, the defendant filed a motion to dismiss the indictment on speedy trial grounds pursuant to CPL 30.30 (1) (a). On October 15, 2013, the People filed an affirmation in response, opposing the defendant’s motion. On November 8, 2013, the defendant filed a reply and on November 18, 2013, the People filed a letter in response to that reply. On November 19, 2013, the People provided the court with transcripts related to several court appearances. As a specific factual issue regarding the defendant’s representation by counsel remained unresolved after a review of the transcripts and the papers submitted by the parties, the court ordered a hearing in connection with the defendant’s motion. That hearing was held before this court on March 7, 2014. Based upon a review of the court file, the relevant transcripts, the papers filed by the parties, and the evidence presented at the hearing, the defendant’s motion is denied.


Here the facts of Brayton's <mask> crime are similar to Gonzales , Garrett and Jimenez . Brayton used a stolen driver's license belonging to another person to obtain a $107.07 store credit. She obtained the credit by the false representation that she was the person named in that driver's license. In Gonzales , entering a bank to cash a stolen check fell within the purview of the resentencing provision. In Garrett , using another person's credit card to purchase property constituted misdemeanor shoplifting under Proposition 47. Similarly, here it was Brayton's use of another person's driver's license that allowed her to obtain the credit.


. In relation to the Restatement standard quoted, tort claims relating to Social Security numbers — notwithstanding that Social Security numbers are found to be private information and confidential — generally are found insuf*917ficient because either there is a failure of proof of distribution to the public at large or the information is not regarded as derogatory (Bodah v Lakeville Motor Express, Inc., 649 NW2d 859, 862-863 [Minn Ct App 2002] [Social Security numbers are confidential and private, but “are not on their face revealing, compromising() or embarrassing”], revd on other grounds 663 NW2d 550 [Minn 2003]; Phillips v Grendahl, 312d 357 [8th Cir 2002]; Basse v Motorola, Inc., 351 Ill App 3d 67, 813 NE2d 1013 [1st Dist 2004]; see also Lora M. Jennings, Paying the Price for Privacy: Using the Private Facts Tort to Control Social Security Number Dissemination and the Risk of <mask> [Bodah v Lakeville Motor Express, Inc., 663 NW2d 550 (Minn 2003)], 43 Wash-burn LJ 725 [Spring 2004]).


The People charged defendant by felony complaint with three counts of receiving stolen property (§ 496, subd. (a), counts 1-3), and three counts of <mask> (§ 530.5, subd. (a), counts 4-6). At her arraignment, defendant agreed to plead guilty to count 1 in exchange for the dismissal of counts 2 through 6 and a sentencing recommendation from the People of two years in county jail. Defendant pleaded guilty to count 1 and admitted to receiving stolen mail. The trial court found a factual basis for defendant's guilty plea and subsequently sentenced defendant to two years in county jail with 80 days of pretrial and good conduct credit.


Presenting oneself as another-—e.g. affirmatively stating “I am John Doe” or signing another person’s name—is the quintessential way in which one assumes another’s identity. Indeed, it is difficult to imagine a situation in which presenting oneself as another would not result in an assumption of that person’s identity. By contrast, assumption of identity is not necessarily accomplished when a person uses another’s personal identifying information. The use of that information can be accompanied by an implicit assumption of identity, but that will not always be the case. In a typical credit card transaction, for example—when a person offers a credit card to pay for a hotel stay or to purchase an item at a store, or enters the person’s credit card information to make an Internet purchase—it is implied that the person presenting or using the card is the card*228holder, even if the person does not affirmatively present himself or herself as such (see People v Wilson, 52 AD3d 239, 240 [1st Dept 2008], lv denied 11 NY3d 743 [2008] [suppression motion properly denied where arresting officer viewed the defendant rapidly purchasing multiple MetroCards with multiple credit cards at vending machine]; People v Vandermuelen, 42 AD3d 667, 670 [3d Dept 2007], lv denied 9 NY3d 965 [2007] [evidence was legally sufficient to establish commission of <mask> where the defendant opened credit card account in victim’s name, using victim’s identifying information, and made three charges with credit card]). Using another’s credit card will, in most cases, also necessarily constitute an implied assumption of that person’s identity.


Before Smith, Stewart, and Graves, Circuit Judges. Per Curiam:* Jeffrey Ndungi Sila was charged with two counts of theft of public funds in violation of 18 U.S.C. §§ 2 and 641 (Counts I and III) and with aggravated <mask> in violation of 18 U.S.C. §§ 2 and 1028A (Count II). A jury convicted Sila on all counts, and he was sentenced to a total term of


The trial court misunderstood the elements of the crime of <mask>. Section 530.5, subdivision (a), provides that the crime is committed when a person obtains personal identifying information of another and "uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person...." (Italics added.) Thus, the crime of identity theft was not committed "in the parking lot" before defendant entered the bank.


Discovercard asserts that the first and core “injury” in the case at bar was the creation of a debt in plaintiffs name with Discovercard, and that plaintiff knew of that debt in late 2000 or 2001 and “did nothing and waited for the inevitable consequence of unpaid debt to be visited upon him in his application for a mortgage loan more that three years later.” In contrast, it is plaintiff’s position that all the elements of the tort to be truthfully pleaded in the complaint were not available until September 2004 when he learned of the <mask> in the credit report and that the “injury” did not accrue until the bank set a higher rate of interest on account of the negative credit report.


“[t]he core of the basic third-degree <mask> offense, a class A misdemeanor, parallels the crime of ‘criminal impersonation in the second degree.’ That crime, also a class A misdemeanor, is committed when a person ‘impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another.’ ” (William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 190.77 at 145, quoting Penal Law § 190.25 [1].) And criminal impersonation requires that a “real person” have been impersonated (People v Sadiq, 236 AD2d 638, 639 [2d Dept 1997]; see also People v Powell, 59 AD2d 950 [2d Dept 1977]).


"(b) Notwithstanding subdivision (a), any person who is guilty of forgery relating to a check, bond, bank bill, *402note, cashier's check, traveler's check, or money order, where the value of the check, bond, bank bill, note, cashier's check, traveler's check, or money order does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290. This subdivision shall not be applicable to any person who is convicted both of forgery and of <mask>, as defined in Section 530.5. " (Italics added.) Under the amended section where a defendant is convicted of both forgery and violation of section 530.5 the minimum dollar amount for felony classification does not apply.


In Gonzales the People argued "that, even if defendant engaged in shoplifting, he is still not eligible for resentencing because he also entered the bank intending to commit <mask>. Thus, his felony burglary conviction could have been based on his separate intent to commit that offense." ( Gonzales , supra , 2 Cal.5th at p. 876, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Defendant "counter[ed] that, even assuming he entered the bank with an intent to commit identity theft, section 459.5, subdivision (b) would have precluded a felony burglary charge because his conduct also constituted shoplifting." ( Ibid . ) The Supreme Court agreed with defendant: " Section 459.5, subdivision (b) requires that any act of shoplifting 'shall be charged as shoplifting' and no one charged with shoplifting 'may also be charged with burglary or theft of the same property .' (Italics added.) A defendant must be charged only with shoplifting when the statute applies. It expressly prohibits alternate charging and ensures only misdemeanor treatment for the underlying described conduct ." ( Ibid ., last italics added.) A conspiracy to commit shoplifting is not included in "the underlying *515... conduct" described in section 459.5. ( Ibid. ) " ' "The punishable act, or the very crux, of a criminal conspiracy is the evil or corrupt agreement [to commit a crime]." ' [Citation.]" ( People v. Homick (2012) 55 Cal.4th 816, 870, 150 Cal.Rptr.3d 1, 289 P.3d 791.)


In Olguin , the probationer had agreed to the warrantless search of his residence. The California Supreme Court there held that a condition requiring the probationer to notify his probation officer of the presence of pets at the probationer's residence was reasonably related to future criminality because the pet disclosure condition helped protect probation officers during compliance visits and facilitated unannounced searches of the probationer's residence, aimed at discovering whether the probationer was complying with the terms of his probation. ( Olguin, supra , 45 Cal.4th at pp. 381-382, 87 Cal.Rptr.3d 199, 198 P.3d 1.) Similarly, the appellate court in Balestra upheld a condition requiring the probationer to submit her person and property to search with or without probable cause, concluding that such condition served the rehabilitative purpose of helping a probation officer ensure that his or her charge was obeying all laws. ( Balestra, supra , 76 Cal.App.4th at pp. 61, 64-68, 90 Cal.Rptr.2d 77.) For that reason, the condition was reasonably related to future criminality. ( Ibid. ; see Olguin, supra , 45 Cal.4th at p. 381, 87 Cal.Rptr.3d 199, 198 P.3d 1.) An electronic device search condition is likewise reasonably related to preventing a defendant's future criminality. ( *131People v. Valdivia (2017) 16 Cal.App.5th 1130, 1137-1139, review granted Feb. 14, 2018, S245893 ( Valdivia ) [electronic device search condition was reasonably related to future criminality because it helped the probation officer ensure that the defendant was complying with the conditions of his probation by obeying all laws]; In re P.O. (2016) 246 Cal.App.4th 288, 293-296, 200 Cal.Rptr.3d 841 [electronic device search condition was reasonably related to future criminality because it enabled peace officers to review the probationer's electronic activity for indications that the probationer had drugs or was otherwise violating his probation].)2 *423Here, defendant admitted that he willfully, and with intent to defraud, acquired the personal identifying information of 10 or more persons. The trial court found that electronic devices would be extremely useful in manufacturing, obtaining and using the kinds of items found in defendant's possession. The trial court imposed other probation conditions aimed at deterring defendant's commission of <mask> crimes in the future. Defendant does not challenge those other terms of his probation. Searching defendant's cell phone, computers and other electronic storage devices would enable defendant's probation officer to ascertain whether defendant is complying with the other unchallenged conditions of defendant's probation.


Case law in New York has held that to prevail the plaintiff must establish that malevolence was the defendant’s sole motive in acting (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314 [1983]). In an <mask> situation, although the defendants intended to act as they did, and harm to the plaintiff was foreseeable, the main purpose of the defendants’ actions is economic gain for themselves and not to solely cause financial harm to the plaintiff. To prevail on a claim for prima facie tort, the plaintiff would have to prove that the defendants were motivated by the intention to cause her economic harm rather than benefit themselves. It appears that the plaintiff did not suffer any direct financial harm from the defendants’ actions since she has not made any allegation that she had to pay for any of the credit charges the defendants incurred. The facts of this case make prima facie tort unavailable as a cause of action to the plaintiff.


The defendant's contention that there was legally insufficient evidence to support the conviction of grand larceny in the second degree is unpreserved for appellate review (see CPL 470.05[2]; People v Kolupa, 13 NY3d 786, 787; People v Hawkins, 11 NY3d 484, 492). However, contrary to the People's contention, the defendant did preserve for appellate review her legal sufficiency challenge to the convictions of <mask> in the first degree. Since the defendant's case did not supply any additional evidence of guilt relative to the counts of identity theft in the first degree, the defendant was not required to renew her motion at the close of the evidence in order to preserve her current contentions (see People v Murray, 163 AD3d 1000, 1001; People v Squires, 68 AD3d 900, 900). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt of grand larceny in the second degree and both counts of identity theft in the first degree beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to those crimes was not against the weight of the evidence (see People v Romero, 7 NY3d 633).


“A person is guilty of <mask> in the first degree 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, and thereby: . . . “2. causes financial loss to such person or to another person or persons in an aggregate amount that exceeds two thousand dollars . . . .” (Penal Law § 190.80 [2].) Under New York Penal Law, the term “financial loss” is not defined in the context of identity theft.


The public interest here clearly outweighs the private interests of the parties as Ms. Caminite has failed to demonstrate that public access to the court documents filed in this proceeding would likely result in harm to a compelling interest of the movant (see Mancheski v Gabelli Group Capital Partners at 502). Moreover, in considering whether to seal the record in a guardianship proceeding, the privacy rights of, and the best interests of, the alleged incapacitated are paramount, and not the interests or privacy rights of other litigants (see Matter of Linda E. [Justin B.] at 702-703). Although the legislature should reevaluate Mental Hygiene Law § 81.14 in view of the broad impact of HIPAA on guardianship proceedings, the unfortunate ease of international <mask>, and the number of sister states which presumptively seal court records in guardianship proceedings, good cause has not been established to seal the record here.


Here, it is undisputed that neither the Penal Law nor the pattern jury charges contain a definition of the term “financial loss” in the context of <mask>. Thus, this court was compelled to craft a meaningful response to the jury by reference to other sources. In doing so, it adopted the definition of “financial loss” contained in United States v Arjoon (964d 167 [2d Cir 1992]). Such definition embraces the intent of the legislature when it enacted the statutes criminalizing identity theft.


The court notes that the drug crimes specified in section 216.00 (1) include class B, C and D, as well as E, felonies. The crimes specified in section 410.91 (5) include several class D, as well as E, felonies. The crimes defendant is charged with committing are all class E felonies (with the exception of one misdemeanor). Furthermore, and very important in the court’s view, is the fact that the “eligible” crimes specified in section 410.91 (5) are — on their face — at least as serious, if not more so, than the crimes defendant is charged with committing. Additionally, the crimes specified in section 410.91 (5) are not — on their face — any more likely to have been committed because of drug addiction than the crimes charged here. In short, the court can discern no rational basis for permitting someone charged with burglary or criminal mischief the opportunity to be considered for the program when someone charged with falsifying business records or <mask> is precluded, regardless of his or her therapeutic needs. If anything, the court is of the opinion that *458defendant’s crimes here are more likely the product of drug addiction than, for example, burglaries typically are.


Defendant points out that forgery was the only crime charged other than the second degree burglary to which he pled, and under Proposition 47, the forgery of a check less than $950 is a misdemeanor. However, the People were not required to separately charge the felony of <mask> that defendant entered with intent to commit because burglary is complete upon entry with the requisite criminal intent. (People v. Brownlee (1977) 74 Cal.App.3d 921, 930, 141 Cal.Rptr. 685.) The record of defendant's conviction, including the preliminary hearing transcript, shows that defendant entered the bank with the intent to commit identity theft.


“[a]t any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon the following grounds: “1. [a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.” Defendant argues that the court should set aside the verdict with respect to counts 1 and 2 of the indictment, <mask> *396in the first degree (Penal Law § 190.80 [2]), on the ground that the court improperly instructed the jury as to the definition of “financial loss.” This court is not persuaded.


*230Our decision should not foment any worry that someone in defendant’s position could avoid criminal liability altogether. There are offenses under which his conduct more squarely falls, such as unlawful possession of personal identification information and theft of services (he was not charged with the former offense, but he was convicted of the latter). <mask> is a serious issue, to be sure, but we cannot give the statute so broad a reading as to bring defendant’s conduct within its orbit (People v Harper, 75 NY2d 313, 318 [1990]; People v Gottlieb, 36 NY2d 629, 632 [1975]).


The court concludes that respondents properly invoked the personal privacy exemption in denying petitioners access to the *628birth dates of the approximately 250,000 individuals who comprise New York State’s workforce. Looking first to the privacy interests at stake, it is by now well established that the disclosure of an individual’s full birth date, taken together with his or her full name and the details of employment, can be used to facilitate <mask>, thereby resulting in both economic and personal hardship to individuals (see e.g. Matter of Goyer v New York State Dept. of Envtl. Conservation, 12 Misc 3d 261 [Sup Ct, Albany County 2005, McCarthy, J.]). Even recognizing the somewhat lesser expectation of privacy enjoyed by public employees with respect to the details of their state employment, the court believes that a reasonable person would find the disclosure of his or her precise birth date, taken together with his or her full name and other details of his or her state employment, to be offensive and objectionable.


Despite "the broad consumer protection" objective underlying section 484e, the Supreme Court in Romanowski held this to be no reason to disregard the limitation to misdemeanor treatment prescribed by Proposition 47 if the $950 threshold is not crossed. ( People v. Romanowski, supra, 2 Cal.5th at pp. 913-914, 215 Cal.Rptr.3d 758, 391 P.3d 633.) We can discern no reason why enforcing the strong public interest in preventing <mask> is not subject to the same limitation prescribed by Proposition 47 and recognized in Romanowski . We repeat what the Supreme Court stated in Gonzales: " 'One of Proposition 47's primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative.' [Citations.] The Act also expressly states an intent to '[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes.' " ( People v. Gonzales, supra, 2 Cal.5th at p. 870, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Both Page and Romanowski demonstrate the Supreme Court's view that the language of Proposition 47 should be "construed 'broadly' and 'liberally' to effectuate its purposes." ( People v. Page, supra, 3 Cal.5th at p. 1187, 225 Cal.Rptr.3d 786, 406 P.3d 319.) As the court pointed out in Page, "In the voter guide to Proposition 47, the Legislative Analyst explained that under existing law, theft of property worth $950 or less could be charged as a felony 'if the crime involves the theft of certain property (such as cars).' [Citation.] Under the initiative, according to the analysis, such crimes would no longer be charged as grand theft 'solely because of the type of property involved.' [Citation.] To the extent section 490.2 is ambiguous as to its inclusion of a theft charged under Vehicle Code section 10851, these indicia of the voters' intent support an inclusive interpretation." ( Ibid. ) These indicia similarly support an inclusive interpretation with respect to the theft of personal identifying information charged under section 530.5, subdivision (c)(2).


The panel affirmed convictions for possession of device making equipment (18 U.S.C. § 1029(a)(4)), possession of at least fifteen unauthorized access devices (18 U.S.C. § 1029(a)(3)), aggravated <mask> (18 U.S.C. § 1028A(a)(1)), and possession of stolen mail (18 U.S.C. § 1708), in a case in which the defendant argued that the district court reversibly erred by instructing the jury that “intent to defraud” under 18 U.S.C. § 1029(a)(3) and (4) means an intent to deceive or cheat.


Prior to Proposition 47, all forgery offenses were "wobblers," meaning they could be charged and punished either as a felony or a misdemeanor. (§§ 17, subd. (b)(1), 473, subd. (a) ["Forgery is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170."].) Proposition 47 amended section 473 to *652add a new subdivision (b) (section 473(b)), which states, in relevant part: "Notwithstanding subdivision (a), any person who is guilty of forgery relating to a check, bond, bank bill, note, cashier's check, traveler's check, or money order, where the value of the check, bond, bank bill, note, cashier's check, traveler's check, or money order does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year.... This subdivision shall not be applicable to any person who is convicted both of forgery and of <mask>, as defined in Section 530.5."


Accordingly, the judgment of the Supreme Court, New York County (Gregory Carro, J., at speedy trial motion; Juan M. Merchan, J., at jury trial and sentencing), rendered December 7, 2011, as amended December 12, 2011, convicting defendant of <mask> in the first degree, criminal possession of stolen property in the fourth degree, and two counts of theft of services, and sentencing him to an aggregate term of 2V3 to 7 years, should be modified, on the law and as a matter of discretion in the interest of justice, to the extent of vacating the identity theft conviction and dismissing that count, and otherwise affirmed.


The defendant's contentions that the two counts of <mask> in the first degree were multiplicitous and that her conviction of both counts violated constitutional principles of double jeopardy are unpreserved for appellate review (see CPL 470.05[2]; People v Gonzalez, 99 NY2d 76, 82; People v Rosario, 184 AD3d 676, 677). In any event, the contentions are without merit. The defendant was convicted under distinct subdivisions of the statute, each requiring proof of an additional fact (see Penal Law § 190.80[1], [2]; CPL 200.30[2]; People v Alonzo, 16 NY3d 267, 269-271; People v Ayala, 172 AD3d 1084, 1084; Matter of Lavon S., 136 AD3d 1044, 1046).


Last, we are not persuaded the People should be permitted on remand to withdraw from the plea bargain and reinstate the dismissed felony <mask> counts because defendant breached her side of the bargain. The decision in People v. Collins (1978) 21 Cal.3d 208, 145 Cal.Rptr. 686, 577 P.2d 1026 (Collins ) does not support the People's request. The defendant there pleaded guilty to one count of oral copulation in violation of former section 288a, in exchange for dismissal of multiple charges and dismissal of the allegation the defendant committed the oral copulation by means of force. (Id. at p. 211, 145 Cal.Rptr. 686, 577 P.2d 1026.) Before sentencing, the Legislature repealed former section 288a and enacted a new version of the statute that did not proscribe oral copulation between consenting adults. (Ibid. ) The defendant objected to the trial court's jurisdiction to impose sentence because the crime to which he pleaded guilty had been repealed. The trial court overruled the objection and sentenced the defendant to one to 15 years in state prison. (Id. at pp. 211-212, 145 Cal.Rptr. 686, 577 P.2d 1026.)


The defendant in Bush committed offenses between October 2000 and January 2002. (Bush, supra, 245 Cal.App.4th at p. 998, 200 Cal.Rptr.3d 190.) During that period, section 368, subdivision (d) only referred to theft or embezzlement from an elder victim and did not reference forgery, fraud, or <mask> under section 530.5. (§ 368, former subd. (d), added by Stats. 1998, ch. 936, § 7.5.)


Here, Jimenez's conduct is identical to Gonzales's conduct. They both entered a commercial establishment during business hours for the purpose of cashing stolen checks valued at less than $950 each. Both defendants committed "theft by false pretenses," which "now constitutes shoplifting under [section 459.5, subdivision (a) ]." ( Gonzales , supra , 2 Cal.5th at pp. 862, 868-869, 216 Cal.Rptr.3d 285, 392 P.3d 437 [shoplifting as defined in section 459.5, subdivision (a) encompasses all thefts, including theft by false pretenses].) Section 459.5, subdivision (b) makes it clear that " '[a]ny act of shoplifting as defined in subdivision (a) shall be charged as shoplifting,' " and that " '[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property.' " ( Gonzales , at p. 863, 216 Cal.Rptr.3d 285, 392 P.3d 437, italics added.) The trial court properly *1290concluded that Jimenez's acts of shoplifting could not be charged as felony <mask> under section 530.5, subdivision (a). ( Gonzales , at p. 862, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Under section 495, subdivision (b), they could be charged only as misdemeanor shoplifting. ( Gonzales , at pp. 862, 876-877, 216 Cal.Rptr.3d 285, 392 P.3d 437 ; see 2 Couzens, Bigelow & Prickett, Sentencing Cal. Crimes (The Rutter Group 2017) § 25:4, p. 25-29 ["If section 459.5 applies, the defendant may not be alternatively charged with burglar[y] or identity theft"].)


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 (see Green, 68 NY2d at 153). Clearly, the more favorable interpretation *227would require the People to prove both elements, that defendant used Catalfamo’s personal identifying information and that he consequently assumed Catalfamo’s identity. In addition, we think this is the more sensible reading according to the plain meaning of the statute because the word “by,” as used in the phrase “assumes the identity of another person by [one of the enumerated methods],” indicates the vehicle by which the assumption of identity takes place. It does not, however, indicate that assumption of identity is an inevitable consequence of using a person’s identifying information. Put another way, although the statute provides three alternative means by which a defendant may commit the offense, assumption of identity must be the end result. Accordingly, whether defendant “assumed the identity” of another is a separate and essential element of the offense of <mask> which must be proven beyond a reasonable doubt.


Plaintiffs allege that at the time they received medical treatment they provided personal information to the defendants, and that on or before fall 2010 and continuing at least through 2012, medical record face sheets and unencrypted computer network data were stolen from defendants North-Shore LIJ. It is also alleged that patients’ physical (hard copy) hospital face sheets were unsecured and were stolen from inside the premises of the defendants’ facilities, including NSUH. These face sheets consist of cover sheets containing information about each patient, including their full name, their spouse’s full name if married, date of birth, address, telephone number, medical record number, Social Security number, insurance information, and current medical information and history. Plaintiffs allege that the stolen data contains private, personal information, including but not limited to protected health information as defined by HIPAA, Social Security numbers, medical information and other information of hundreds of patients. Plaintiffs allege that as a result of the defendants’ failure to implement and follow basic security procedures, their personal information is now in the hands of thieves, and that they face a substantial increased risk of <mask>. Each of the 13 plaintiffs allege that they have experienced repeated instances of identity theft since said data breach and that as a consequence of said breach, plaintiffs, as well as current and former patients, have had to spend and will continue to spend significant time and money in the future to protect themselves. In addition, plaintiff Peterman alleges that as a result of the data breach her credit rating was substantially damaged; plaintiff Vetere alleges that as a result of the data breach her *1032income tax refund for 2010 was fraudulently claimed and sent to a third party; and plaintiff Akins alleges that identity thieves fraudulently filed state and federal income tax returns for 2011, causing him substantial financial losses.


Defendant contends the trial court erred in considering facts outside the record of conviction to support its conclusion that defendant undertook both burglaries with the intent to commit <mask>. The record, specifically the factual bases set forth in the plea agreements, states defendant entered Wells Fargo Bank and SR Food and Liquor only with the intent to commit theft. The prosecutor had proffered that the intent was to commit identity theft, but defendant had objected to the court's considering this disputed fact. Defendant adds that the trial court's finding-limiting shoplifting-reflected a misunderstanding and consequent misapplication of the law.


At the hearing, the court stated it would first hear from the People because they had filed an objection. The prosecutor began: "In case 0664 the charge is a 459 second; however, we believe that it is not entitled to resentencing because the entry was into Wells Fargo Bank and the defendant attempted to cash a check belonging to another person which would be an <mask> and, therefore, it would be entering the bank with the intent to commit a felony, identity theft." After clarifying that the check was written off someone else's account, the prosecutor continued: "In case 0901, it would be the same argument as to the 459 second and the defendant entered SR Food and Liquor and attempted to cash two checks belonging to another person which again *829would be the identity theft issue; however, he would be entitled to resentencing on the 476 [fictitious check count] because the amounts were less than $950."


In both Gonzales and this case, the defendant had pled guilty to burglary in exchange for the prosecution's dismissal of another charge. In both cases, the defendant's burglary indisputably satisfied the elements of misdemeanor shoplifting, because the defendant entered the building with the intent to commit a larceny of property worth less than $950. In both cases, the People argued that the defendant's intent at the time of his entry into the commercial establishment was not merely to commit a theft, but also to commit a different felony also directed at taking the same property. In Gonzales , the Supreme Court held that the shoplifting statute precluded a burglary charge based on intent to commit <mask>, even though identity theft involves additional elements. ( Gonzales, supra , 2 Cal.5th at pp. 876-877, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Here, we must decide whether the shoplifting statute precluded a burglary charge based *268on intent to commit robbery, even though robbery involves the additional element of the use of force or fear.


In March 2019, while Jimenez was still pending, we issued an opinion resolving defendant’s appeal by holding that, as the Attorney General had acknowledged, her conviction for burglary had to be reduced to shoplifting under new section 459.5, subdivision (a), and further holding that, as the Attorney General had disputed, her five convictions for <mask> and mail theft in violation of section 530.5, subdivisions (a), (c), and (e) also had to be reduced to misdemeanors in violation of section 459.5, subdivision (a), or of section 490.2. The California Supreme Court granted review of this case and deferred briefing pending its decision in Jimenez. In March 2020, the court decided Jimenez, holding that Proposition 47 does not apply to convictions for unlawfully obtaining and using personal identifying information in violation of section 530.5, subdivision (a), and that such convictions may not be reduced to misdemeanor shoplifting (§ 459.5). (Jimenez, supra, 9 Cal.5th at pp. 58–59.) 2 Jimenez did not address mail theft in violation of section 530.5, subdivision (e) (hereafter, section 530.5(e)). After deciding Jimenez, the court transferred this case back to us with directions to vacate our decision and reconsider the case in light of that decision. Defendant and the Attorney General have each filed supplemental briefs in which they do not dispute the proper disposition of this appeal as to six of the seven convictions at issue. The parties agree that nothing in Jimenez undermines our original holding that defendant’s burglary conviction must be


Thereafter, in August 2004, plaintiff claims that, when he and his wife applied for a mortgage to purchase a new home, a credit report was run by the bank to which he applied and he learned that there were four credit cards in his name, including the Discovercard, which had outstanding balances on accounts which he never possessed. He states that when he contacted the credit card issuers he learned that an unknown person had stolen his identity and run up significant balances, using a fictitious address to which bills were sent. Plaintiff asserts that he never lived at the address given by the imposter and that he never received any credit card billing statements from any of the card issuers, including Discovercard. On September 30, 2004, he filed a police report with his local police department reporting the <mask>.


On the day of the hearing when defendant changed his plea, the People filed a 23-page boilerplate memorandum of points and authorities, accompanied by a 12-page declaration from a Sacramento County *184Sheriff's deputy assigned to the Sacramento Valley Hi-Tech Crimes Task Force, in support of the imposition of a probation condition requiring defendant to submit his electronic storage devices, including but not limited to cell phones and computers, to warrantless search and seizure. The boilerplate memorandum explained that the superior court had "developed new language describing search and seizure terms and conditions accompanying grants of probation for certain cases." Essentially, the new language added "electronic storage devices" to the standard condition permitting warrantless probation searches, which already permitted searches of a probationer's "person, place, property, automobile, ... and any object under [the probationer's] control."2 According to the memorandum, the probation department was "recommending the imposition of this new language in cases, such as this, where there is a nexus between the grant of probation and the defendant's use of an electronic device." Being a boilerplate document, however, the memorandum did not provide any details relating to this specific case. Instead, the memorandum asserted in a footnote that the new search condition "should be imposed in cases where there has been a demonstrated connection between the type of criminal conduct involved and the use of electronic devices and/or [where the condition] bears a reasonable relation to future criminality, such as the following: drug sales/transportation; fraud, <mask>, financial crimes; sex offenses; human trafficking, pimping and pandering; domestic violence ; weapons-related offenses; gang enhancements and gang membership; and any other case where a defendant used an electronic device during the current offense or in a previous crime." (Italics added.)


¶3 Espriu testified at the jury trial, and during direct examination her counsel asked if any of her prior convictions “related to fleeing from law enforcement.” Espriu responded in the negative. The State then argued that defense counsel had “opened the door” for the State to further inquire as to the nature of Espriu’s prior felony convictions. The superior court agreed and allowed the State to elicit testimony during cross- examination that Espriu had been convicted of theft of means of transportation, <mask>, trafficking in stolen property, and possession of dangerous drugs. The court instructed the jury that it could use the prior convictions only to evaluate Espriu’s credibility and not as evidence of guilt. The jury later found Espriu guilty as charged.


Plaintiff asserts that her “credit rating” with the three major credit rating firms declined as a result of the adverse credit history created under her identity by the defendants. Plaintiff has provided documentation that her scores after July 2003 were below 600 with two of the three companies. However, plaintiff has not provided any documentation as to what her score was prior to May 2002 when the defendants allegedly commenced their scheme. Although there appear to be six accounts showing delinquencies opened within the time period plaintiff asserts the defendants were engaged in their <mask> scheme, the credit reports also show delinquencies and late payments on a Staten Island Savings Bank mortgage taken out in May 2002 for an undisclosed premises. Plaintiff does not appear to be alleging that the delinquencies on the mortgage payment resulted from the defendants’ afctions. There is no showing from plaintiff that the late payments on the mortgage account are not relevant to her declining credit score.


“In matters of statutory construction, legislative intent is the great and controlling principle, and [the] proper judicial function is to discern and apply the will of the Legislature” (People v Allen, 92 NY2d 378, 383 [1998] [citations and internal quotation marks omitted]). Penal Law § 190.78 was enacted in 2002 as part of a comprehensive package of laws whose purpose was to protect and vindicate the rights of consumers actually victimized by the crime of <mask> (see L 2002, ch 619):1


*655Plaintiff has attached as an exhibit her credit score with TransUnion as 702 as of December 23, 2004, which would seem to indicate that any adverse ratings resulting from the actions of the defendants have been erased from her credit report. By this documentation, plaintiff is representing that it took her almost two years to repair her credit. In fact, the TransUnion report shows only two accounts as reported with a negative history. One is a Home Depot account that plaintiff indicates is one of the fraudulently opened credit cards. The second negative account is the Staten Island Savings Bank mortgage. All of the other wrongfully opened accounts have apparently been removed from plaintiff’s credit history. The fact that one or more of these accounts may still improperly be appearing may give rise to a cause of action pursuant to General Business Law article 25 against the entities reporting these accounts and carrying them on the plaintiffs credit history. There is also a question as to whether or not the Home Depot account being reported is the same fraudulent account since it is listed as opened in August 2002 while the one which plaintiff asserts was part of the <mask> was opened in July 2002. In addition, it appears to have a different account number than the one opened by the defendants. Also, the late payment being reported is as of April 2003, a date four months after which plaintiff states she learned of the identity theft and notified the credit reporting agencies and cardholders.


The third element of <mask> in the first degree under Penal Law § 190.80 (2) requires that the defendant cause “financial loss to [the person from which she used personal identifying information] or to another person” (emphasis added). In this case, even though the money was ultimately reimbursed to the civilian victims, the defendant did indeed cause financial loss to those civilian victims for a period of time, however temporary. The testimony adduced at trial demonstrates that the victims were deprived of their money from the time the defendant used the money to make unauthorized purchases until such time as the financial institutions reimbursed the money to the civilian victims. During that period the money was not available to the civilian victims for their use.


Discovercard asserts that the first and core “injury” in the case at bar was the creation of a debt in plaintiffs name with Discovercard, and that plaintiff knew of that debt in late 2000 or 2001 and “did nothing and waited for the inevitable consequence of unpaid debt to be visited upon him in his application for a mortgage loan more that three years later.” In contrast, it is plaintiff’s position that all the elements of the tort to be truthfully pleaded in the complaint were not available until September 2004 when he learned of the <mask> in the credit report and that the “injury” did not accrue until the bank set a higher rate of interest on account of the negative credit report.


As Justice Donnino has observed, “[t]he core of the basic third-degree <mask> offense, a class A misdemeanor, parallels the crime of ‘criminal impersonation in the second degree.’ ” (William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 190.77.) Criminal impersonation in the second degree, Penal Law § 190.25 (1), is committed by a person who “[i]impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another.” The Second Department has held that “in order to be found guilty of this [form of criminal impersonation], the People must have established that [the defendant] impersonated a real person.” (People v Sadiq, 236 AD2d 638, 639 [2d Dept 1997].) As one court has held, relying on Sadiq, “in requiring that a defendant prosecuted for identity theft have assumed the identity of ‘another person,’ the legislature plainly contemplated criminal conduct committed against an actual victim—that is, an innocent person whose identity or information is actually stolen.” (People v Debranche, 38 Misc 3d 872, 875 [Crim Ct, NY County 2012].)


Martin Marcus, J. On May 10, 2013, the defendant was indicted by the grand jury of Bronx County and charged with scheme to defraud in the first degree (Penal Law § 190.65 [1] [a]), and <mask> in the second degree (Penal Law § 190.79 [3]). In an omnibus motion, the defendant seeks, inter alia, dismissal of both counts of the indictment, the scheme to defraud count on statutory double jeopardy grounds, and the identity theft count for legal insufficiency of the evidence. For the reasons set forth below, the defendant’s motion to dismiss the indictment is granted.