A NY Appellate Court significantly weakened the “structure” and “hierarchy” required for an enterprise under the OCCA.
In the case of People v. Western Express, Judge David Saxe, writing for a divided court in the First Department (the Appellate Court in NY that handles cases from Manhattan and the Bronx) found that an internet forum that handled transactions for identity thieves was a criminal enterprise even though there was no connection between the thieves and the forum.
While Western Express offered a variety of legitimate services, such as check-cashing, mail receiving, money orders, digital currency exchange, and Russian/English translation services, it also acted as an intermediary, or “money mover,” providing credit and facilitating transactions for buyers and sellers of stolen credit card data, while earning a commission for each such transaction.
What Vassilenko did, the court said was to shape his previously legitimate business “into a hub for criminal activity geared toward maximizing its own and its participants’ profits from the theft and use of stolen credit card information and its protection from law enforcement.”
This case could have far-reaching implications if it is not reversed by the Court of Appeals. The idea of the Penal Law is to let people know what is illegal and what ramifications you will face if you engage in certain conduct.
It is clear that courts are willing to be flexible and creative as they try and use pre-internet laws to deal with internet related activity.