NY Penal Law § 158.05: Welfare Fraud in the Fifth Degree

When considering the crime of theft, we generally tend to think about such crimes as grand larceny, burglary, shoplifting and robbery. Nevertheless, there is another kind of theft that is known as welfare fraud. This is a crime that involves stealing resources from the government. For instance, if you file an application for welfare benefits with false information and you receive the benefits based on this application, you will have committed welfare fraud. Five welfare fraud offenses are covered in the New York criminal code. The particular charge you would face is based on the dollar amount of public assistance benefits you are accused of stealing from the government. The least serious welfare fraud charge is welfare fraud in the fifth degree. According to New York Penal Law section 158.05, you will have committed welfare fraud in the fifth degree if you get public benefits on the basis of committing a fraudulent welfare act. 

A “fraudulent welfare act” entails engaging in any of the following activities:

1. Filing an application for a public benefit card in full awareness that the application contains false information,
2. Assuming the identity of another person in order to get public assistance benefits, or
3. Putting forth a false statement in order to fraudulently establish or maintain eligibility for public assistance benefits; or to get an increase or to prevent the reduction of public assistance benefits.

For the purposes of the welfare fraud legislation, the term “public assistance benefits” refers to money, property or services furnished by the federal, state or local government and administered by the Department of Social Services or by social services districts.

A Case Law Example

Kelvin Swain neglected to report that he was a recipient of unemployment benefits at the time he applied for re-certification for his public assistance benefits. As a result, he got convicted of welfare fraud in the fifth degree and was ordered to pay restitution in the amount of $825.24. This was the case of the People v. Swain (N.Y. App. Div., 2003)

Offenses that are Related

Welfare fraud in the fourth degree: New York Penal Law section 158.10

Welfare fraud in the third degree: New York Penal Law section 158.15

Welfare fraud in the second degree: New York Penal Law section 158.20

Welfare fraud in the first degree: New York Penal Law section 158.25

Possible Defenses

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If you inadvertently provided false information on an application for public assistance, then you could have a plausible defense against a welfare fraud charge. Likewise, if you gave a false statement in answer to a question on an issue that was not a material issue, then a charge of welfare fraud would not be valid.

Legal Scenario: What Would You Do?

Scenario

After losing your job, you applied for public assistance and listed your household income as zero, but you failed to report that your spouse was still earning a part-time salary. Now the Department of Social Services has sent you a letter stating they are pursuing criminal charges for welfare fraud.

Can I really be charged with a crime for not reporting my spouse's income on a benefits application?

Attorney's Answer

Under NY Penal Law § 158.05, Welfare Fraud in the Fifth Degree is a Class A misdemeanor that applies when a person intentionally makes a false statement or withholds material information to obtain public assistance benefits they are not entitled to receive. Even an omission, such as failing to disclose a spouse's income, can be treated as a fraudulent act if it was done knowingly to inflate your benefit amount. A conviction carries up to one year in jail, probation, restitution of the overpaid benefits, and a permanent criminal record. An experienced defense attorney can examine whether the omission was truly intentional or an honest mistake, and may be able to negotiate a civil repayment agreement to avoid criminal prosecution.

This is general information only. Contact us for advice specific to your situation.

The Sentence

Because this is a class A misdemeanor, if you are convicted of welfare fraud in the fifth degree, your sentence might include a jail term of up to one year, a probation term of 3 years, and the payment of a fine. You would also be obligated to repay the funds that you received fraudulently.