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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 26806
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Possible Food Stamp Fraud Charge.

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This is in NYC. Our records are clean.

We were receiving food stamp for a year in 2011. The total amount received is about $3700. Of which, about $2500 might be overpayment, due to our failure to report a change in income. We honestly did not know the rule regarding change reporting since this is our first time getting FS. The Social Service found out about this only when we reported our income during the recertification interview. Our FS was immediately cancelled. Our case is pending calculation of actual overpayment for repayment.  

We did a little research and found that there are 3 things that can happen from here on:

Scenario A) The SS treats this as an “inadvertent household error” and demand restitution.

We are OK with this. We will gladly repay any amount we are not entitled to.

Scenario B) The SS brings an administrative hearing and charge us “intentional program violation IPV”.

We are less OK with this, but we will not fight, since this is a civil case. We will not sign any guilty plea but will pay restitution.

Scenario C) The SS refers the case to DA for prosecution.

This will be devastating. Even though we most likely won’t get any jail time due to our clean record, this will definitely cause our job, and a felony record will have us end up back at the FS line again! We will hire lawyer and fight to the end.

Since the three scenarios are not mutually exclusive, we thought it is most logical to be prepare for the worst case, Scenario C). Please answer the following questions:

1)      The dominant question. How likely case like this get referred to the DA? And IF it is referred, how likely will the DA accept it? Please answer with experience/actual knowledge. Also consider the amount involved in the case and our clean record.

2)      What course of action should we take now to avoid ending up in this scenario?  

3)      In the court, is the “I-honestly-did-not-know” a good defense in case like this?

Thank you.

Hello Jacustomer,

Unfortunately, there's a saying that you may have heard which is "Ignorance of the law is no excuse." Everybody here is deemed to know all of the laws of the land,even though, of course, we really don't. So while your being a first time applicant is an explanation for what you did, it doesn't rise to the level of a criminal defense to the charges.

You will be expected to pay back the government for their overpayment. If Welfare believes that what you did looks like deliberate fraud to them, they will turn the file over to the DA's Office for prosecution. The charge is a felony, however, if you have no previous contact with the criminal justice system and wanted to dispose of this case, it usually results in felony probation (five years) and restitution to the government. While this can give you a record and while the sentencing laws would allow for prison on a case like this, if you make all of your court dates responsibly, jail should not be something you will have to worry about.

You will need a lawyer, and if you can't afford one, when you show up in court for your arraignment, if this matter gets that far, you would simply plead not guilty to the charges, tell the judge that you do not have the means to get yourself representation and ask him to appoint you a public defender.

Once you have your lawyer, he can go over the case with you and confer with the DA and negotiate an offer if you want one, or move the case towards trial if you don't. But even if you want to take a plea, remember that on your arraignment (first court date) when the court asks you how you uplead, it must be NOT GUILTY). That is the only possible plea to take if you want to keep all of your rights. You can always change that plea to guilty after a lawyer has explained everything you need to know, if there's a nice deal from the DA you want to take. But it doesn't work the other way around. Once you plead guilty, it's usually for keeps.

Just say that you did substantial editing of the post while I was composing my answer. Let me add a quick thing.

Your research is correct. The examiner could find that this looks like an inadvertent mistake.

If however, he feels that it could be fraud -- second choice -- then he will turn the file over to the DA even if you do pay back the government. That's because this kind of fraud can be addressed legally in civil and/or criminal venues. Civilly, the government is looking specifically for its damages. Criminally, you can also be punished for the act. Payment doesn't prevent that.

If I've left anything out, use the reply box to send me a note and i'll be happy to address it.
Customer: replied 5 years ago.
How likely will the DA take the referral? Surely the DA can't take all the FS cases can he/she? We always heard the DA usually go for the most egregious crime... ours is truly a mistake. The total amount involved is tiny compare to the true criminals who fraud the system for tens of thousands of dollars.
We need this answer just for a peace of mind, because the suspense is really killing us. If you can answer us base on your experience, we would greatly appreciate it.

I have handled many of these over the course of a long career, but not nearly so many as to believe that everyone caught gets prosecuted. If my own caseload over the span of my career is any indication, courts don't even see the tip of the welfare fraud iceberg. But I would have no idea how many matters Welfare looks into that never go anywhere further than civil restitution and how many end up on the DA's desk.

In court, I confess I have seen some clients with amounts that are more than yours and others with amounts that are not. I think the facts and circumstances of every overpayment case that comes their way is as important as the amount of money involved.
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