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NY Penal Law § 158.05: Welfare fraud in the fifth degree

When thinking about the crime of theft many of us tend to think of the crimes of grand larceny, shoplifting and robbery. However, another type of theft is welfare fraud. It is a crime that involves stealing from the government. For example, if you make a false application for welfare benefits and receive them, you would have committed welfare fraud. There are five welfare fraud offenses in New York. The specific charge you will face depends on the amount of public assistance benefits you are accused of stealing from the government. Welfare fraud in the fifth degree is the least serious welfare fraud charge. Under New York Penal Law section 158.05 you have committed welfare fraud in the fifth degree if you receive public benefits based on committing a fraudulent welfare act. A fraudulent welfare act includes engaging in any of the following acts:

  1. Presenting an application for a public benefit card knowing that the application contains false information,
  2. Pretending to be another person in order to obtain public assistance benefits, or
  3. Making a false statement in order to establish or maintain eligibility for public assistance benefits; or to increase or prevent the reduction of public assistance benefits.

For purposes of the welfare fraud statute "public assistance benefits" means money, property or services provided from the federal, state or local government and administered by the department of social services or social services districts.


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

Related Offenses
  1. Welfare fraud in the fourth degree: New York Penal Law section 158.10
  2. Welfare fraud in the third degree: New York Penal Law section 158.15
  3. Welfare fraud in the second degree: New York Penal Law section 158.20
  4. Welfare fraud in the first degree: New York Penal Law section 158.25

If you mistakenly provided false information on an application for public assistance, then you may have a valid defense to a welfare fraud charge. Similarly, if you made a false statement about an issue that was not a material issue, then a charge of welfare fraud would not be appropriate.


As a class A misdemeanor, if you are convicted of welfare fraud in the fifth degree your sentence may include a jail term of up to a year, a probation term of 3 years, and a fine. You will also be required to repay the money that you received fraudulently.

New York Penal Law § 158.05: Welfare fraud in the fifth degree

A person is guilty of welfare fraud in the fifth degree when he or she commits a fraudulent welfare act and thereby takes or obtains public assistance benefits.

Contact the Law Offices of Stephen Bilkis & Associates

Even though welfare fraud in the fifth degree is a misdemeanor, you should take it seriously. Not only could you end up in jail, you will have to repay the money you received. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with felonies and misdemeanors in violation of New York state law and federal law. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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