## Facts

- Sergey Aleynikov worked as a computer programmer for Goldman Sachs on software used in its high-frequency trading system.
- Shortly before leaving Goldman for a potential competitor, Aleynikov copied proprietary source code by uploading it to a server outside Goldman’s network.
- He transferred copies of the source code to personal computing devices and later provided it to his new employer.
- New York charged Aleynikov with unlawful use of secret scientific material under N.Y. Penal Law § 165.07.
- A jury convicted Aleynikov, but the trial court set aside the verdict, concluding the People failed to prove (1) a “tangible reproduction or representation” and (2) intent to appropriate the material’s use.
- The People appealed the post-verdict dismissal.

## Issues

1. Whether evidence that a defendant digitally copied and stored proprietary source code on servers and personal devices is legally sufficient to prove a “tangible reproduction or representation” under N.Y. Penal Law § 165.07.
2. Whether the evidence was legally sufficient to prove the defendant acted with intent to “appropriate” the “use” of the secret scientific material under § 165.07.

## Decision

- The Appellate Division, First Department reversed the order setting aside the verdict.
- The court held the evidence was legally sufficient on both contested statutory elements.
- The court reinstated the jury’s guilty verdict and remanded for sentencing.

## Legal Principles

- Under § 165.07, a “tangible reproduction or representation” may be satisfied by digital copying that fixes the material onto physical media (e.g., servers, hard drives, personal devices); a paper printout is not required.
- The “intent to appropriate” element focuses on intent to appropriate the material’s “use,” and does not require proof that the owner was permanently dispossessed of the material.
- When reviewing legal sufficiency, the evidence is viewed in the light most favorable to the prosecution; the question is whether a rational jury could find the elements proven beyond a reasonable doubt.

## Conclusion

The court reinstated Aleynikov’s conviction, holding that copying proprietary source code onto physical computer storage constitutes a “tangible reproduction or representation” under § 165.07 and that intent to appropriate the code’s use could be inferred from copying it before leaving for a competitor and sharing it with the new employer.


People v. Aleynikov, 148 A.D.3d 77 (N.Y. App. Div. 1st Dep’t 2017)