Opinion
2018NY033824
07-10-2019
The PEOPLE of the State of New York, Plaintiff, v. John ADAMS, Defendant.
Appearances of Counsel: People: New York County District Attorney's Office by ADA Maureen Schnepf Defendant: The Legal Aid Society by Gretchen Reeser, Esq.
Appearances of Counsel:
People: New York County District Attorney's Office by ADA Maureen Schnepf
Defendant: The Legal Aid Society by Gretchen Reeser, Esq.
Keshia J. Espinal, J. Defendant moves, pursuant to CPL 170.30 (1) (e), to dismiss the accusatory instrument on the ground that he has been denied his right to a speedy trial under CPL 30.30 (1) (b).
In connection with the preparation of this decision, the court reviewed the defendant's Notice of Motion to Dismiss and Affirmation in Support of Motion dated April 3, 2019, the People's Affirmation in Response to Motion to Dismiss filed on May 9, 2019 and defense counsel's Reply Affirmation filed on June 7, 2019.
BACKGROUND
Defendant is charged with two counts each of Assault in the Third Degree ( Penal Law §§ 120.00 [1 ] & [2] ) and Criminal Mischief in the Fourth Degree ( Penal Law §§ 145.00 [1 ] & [4] [a] ) and one count each of Criminal Obstruction of Breathing or Blood Circulation ( Penal Law § 121.11 [a] ), Aggravated Harassment in the Second Degree ( Penal Law § 240.30 [4 ] ), Attempted Assault in the Third Degree (Penal Law § 110/120.00 [1] ) and Harassment in the Second Degree ( Penal Law § 240.26 [1 ] ).
The defendant was arraigned on the accusatory instrument on August 12, 2018. At that time, the accusatory instrument contained hearsay allegations from the complaining witness, Julia Lynch. Accordingly, the case was adjourned for the People to provide the court with Ms. Lynch's supporting deposition. The People filed a supporting deposition, along with a Certificate of Readiness, on November 5, 2018. The signature on the supporting deposition bore Ms. Lynch's name but was an electronically typed signature.
On November 20, 2018, the court reviewed the supporting deposition and questioned the People regarding the electronic signature. The case was adjourned to December 17, 2018, for supporting deposition.
However, on December 17, 2018, the assigned Assistant District Attorney appeared in court and made the following record:
[PEOPLE]: Additionally, as to docket ending 824, it's my understanding, from my colleague, who stood here last time, there was some issue with the affidavit being insufficient, in Your Honor's opinion. I would just like to be heard as to the sufficiency of the corroborating affidavit, in this case.
THE COURT: Yes. There was an issue having to do with an electronic supporting deposition, where it looked like the name was typed and not signed. There was no affidavit attached to it to say there was an electronic signature, or something like that.
[PEOPLE]: It's the People's position, Your Honor, that it's sufficient to convert this case. On that date, specifically, I was in constant communication with the complainant, via e-mail, and phone call. She was at work all day long, and she was unable to print that document, and we told her the best way to do that, was to write her name out, date, and we would file it with the Court on that date. In addition, to myself being in constant communication with the complainant on November 5th, my supervisors were also in communication with her, via phone call, and that she was at work, and unable
to print the document. We informed her to sign it.
It's our position, it would be converted. As an Officer of the Court, I am informing, Your Honor, I was in communication with her, via e-mail, via phone call; I would confirm, it was her, in fact, the person who signed that, if Your Honor deems that sufficient.
THE COURT: I would ask if you could do an affidavit, and say that you were setting forth, what it is you just said to the Court I am taking the People's position, they are going to provide me with that affidavit shortly. So, this will be converted, so, we can go right to trial on that matter.
The case was then adjourned to February 13, 2019, for trial.
On February 13, 2019, the People filed an affidavit containing the information the People relayed to the court on December 17, 2018. The People were not ready for trial and requested that the case be adjourned to February 15, 2019. The court adjourned the case for hearings and trial to March 19, 2019. On March 19, 2019, the People were ready for trial but defendant was not present in court. The case was then adjourned to April 3, 2019. The People were ready for trial on April 3, 2019, but defendant filed the instant motion.
ARGUMENTS
The defendant contends that the supporting deposition from Ms. Lynch alone was insufficient to convert the accusatory instrument and that an affidavit pertaining to the verification of the electronic signature was required for conversion; that, when the People filed their Certificate of Readiness on November 5, 2019, the People were not in a position to state ready for trial as the accusatory instrument had not yet been converted. The defendant asserts that the entire time period from August 12, 2018, until the People stated ready for trial on March 19, 2019, should be chargeable to the People. The defendant argues the People have exceeded the statutory time period in which they must be ready for trial and the accusatory instrument should be dismissed.
In response, the People contend that an affidavit was not required to convert the accusatory instrument to an information, that the accusatory instrument was converted when the People filed the complainant's signed supporting deposition with a valid Certificate of Readiness; and therefore, the People have not exceeded the time allotted to them under CPL 30.30 and the defendant's motion to dismiss should be denied.
DISCUSSION
Conversion Using an Electronic Signature
For a supporting deposition to be deemed valid it must be:
a written instrument ... filed in connection with an information ... or misdemeanor complaint ... subscribed and verified by a person ... containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein.
( CPL 100.20 ) "Subscribed as it is used in the statute means to sign one's name at the end of a document" ( People v. Brothers , 58 Misc. 3d 664, 666, 66 N.Y.S.3d 873 [Crim. Ct., Kings County 2017] citing James v. Patten , 6 N.Y. 9, 12 [1851] ). General Construction Law section 46 defines a signature as "any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing" (see also People v. Jackson , 17 Misc. 3d 788, 790, 844 N.Y.S.2d 841 [Crim. Ct., N.Y. County 2007].) "Vital to the subscription requirement is that the signature reflect the intent of the person endorsing [it]" ( Brothers at 668, 66 N.Y.S.3d 873 citing People v. Sanchez , 47 Misc. 3d 612, 3 N.Y.S.3d 886 [Crim. Ct., Queens County 2015] ; People v. Welcome , 50 Misc. 3d 1223[A], 2015 WL 10382566 [Crim. Ct., Queens County 2015] ; People v. Rodriguez , 50 Misc. 3d 1223 [A], 2016 WL 803026 [Crim. Ct., Queens County 2015] ). Additionally, there are several options as to how a supporting deposition can be verified, which include "a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law" ( CPL 100.30 [1 ] [d] ).
"There is already a clear legislative policy to promote the use of electronic signatures to facilitate both businesses in, as well as the business of, New York State" ( Sanchez at 616, 3 N.Y.S.3d 886 [internal citations omitted] ). "That law, which includes the Electronic Signatures and Records Act [ESRA], makes clear in section 304 [2] that ‘an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand." ( Id. at 616, 3 N.Y.S.3d 886 ; see also People v. Johnson , 31 Misc. 3d 145[A], 2011 WL 2086372 [App. Term, 2d Dept., 9th & 10th Jud. Dist. 2011] [holding that an officer's electronic signature on a supporting deposition had the same validity as a handwritten signature].)
In criminal practice "[u]nless otherwise provided by statute or by judicially established rules of evidence applicable to criminal cases, the rules of evidence applicable to civil cases are, where appropriate, also applicable to criminal proceedings." ( CPL 60.10 ) There is nothing within the Criminal Procedure Law which precludes the use of electronic signatures and therefore ESRA § 304 (2) may be applied to criminal cases.
"A person may validly subscribe a supporting deposition by placing one's signature upon it by electronic means, so long as the signature was placed with the intent to sign the supporting deposition." ( People v. Williams , 63 Misc. 3d 765, 769, 95 N.Y.S.3d 508 [Crim. Ct., N.Y. County 2019] ) "The key is that the endorser intended to leave his mark upon a document, thereby taking some level of responsibility for its contents" ( Id. citing People v. Jackson , 17 Misc. 3d 788, 791, 844 N.Y.S.2d 841 [Crim. Ct., N.Y. County 2007] ).
Accordingly, a supporting deposition signed by a witness by typing their name electronically, which is also verified to under the penalties of perjury, is valid under CPL 100.20 and therefore can be used to convert hearsay within an accusatory instrument.
Regarding the necessity of an affidavit pertaining to the electronic signature, in other cases where an electronic signature appeared on a supporting deposition, an email exchange would take place between the District Attorney's office and the complaining witness (see Brothers, 58 Misc. 3d 664, 66 N.Y.S.3d 873 ; Rodriguez, 50 Misc. 3d 1223[A] ; Sanchez, 47 Misc. 3d 612, 3 N.Y.S.3d 886 ; Welcome , 50 Misc. 3d 1223[A] ). The People would email the accusatory instrument and supporting deposition to the complainant and inform the complainant to read both documents and if the contents of each were accurate, and the complainant wished to sign the supporting deposition, to reply to the email stating ‘I agree’ along with their name (id. ). The email exchange would also make clear to the complainant that replying to the email this way would result in the District Attorney's office affixing a typed signature of the complainant's name onto the supporting deposition and that the complainant was agreeing to their signature being affixed as well as affirming that the contents of the document were true under the penalties of perjury (id. ). Therefore, an affidavit from the People pertaining to the email exchange was required because the complainant's intent to sign the supporting deposition, as well as verify its contents under the penalties of perjury, needed to be established, since the electronic signature on the supporting deposition was affixed by someone other than the complainant (id. ).
Here, the typed signature on the supporting deposition was made by the complainant herself. Therefore, an affidavit was not automatically required to convert the accusatory instrument because the typed signature on the supporting deposition, in and of itself, is proof of the complainant's intent. However, it was not initially clear to the court that the complainant was the one who signed the supporting deposition, as opposed to the People affixing the complainant's signature on her behalf and the complainant agreeing to this occurring. Once the assigned Assistant District Attorney explained on December 18, 2017, to the court that the People had communicated with the complainant and that the complainant was the one who typed her name on the signature line of the supporting deposition, the court accepted the supporting deposition and asked that the record made by the People be memorialized in an affidavit from the assigned Assistant District Attorney. This made the Certificate of Readiness from November 5, 2018, valid. Unless a defendant successfully demonstrates that the Certificate of Readiness filed was illusory, an out of court statement of readiness is truthful, accurate and valid ( People v. Brown , 28 N.Y.3d 392, 405, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016] ).
The question then becomes, when such affidavit is submitted after the supporting deposition is filed with the court, when is the accusatory instrument deemed converted into an information? When an affidavit is filed at the court's request following the filing of a supporting deposition, to confirm the validity of an electronically signed supporting deposition, the accusatory instrument is deemed converted as of the date that the supporting deposition was filed, not the date the affidavit was subsequently filed.
Much like the filing of a certificate of translation, the court requiring an affidavit from the People pertaining to the electronic signature on a supporting deposition "is based upon the court's determination that there is sufficient evidence to question the legitimacy of the complainant's verification, and therefore, the court's jurisdiction is no longer assured." ( People v. Camacho , 185 Misc. 2d 31, 36, 711 N.Y.S.2d 283 [Crim. Ct., Kings County 2000] ; see also People v. Case , 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872 [1977].) Therefore, upon the filing of the affidavit, if a court finds that the supporting deposition was properly verified by the complainant, "then the court must conclude that the complaint was properly converted at the time of the service and filing of the signed supporting deposition, and, assuming the People's continued readiness, the subsequent intervening period is not chargeable." ( Camacho at 36, 711 N.Y.S.2d 283 ; see also People v. Badalov , 42 Misc. 3d 1235[A], 2014 WL 1009056, at *3 [Crim. Ct., Kings County 2014] [holding that a certificate of translation confirms that the complaint and supporting deposition are jurisdictionally sufficient and therefore the complaint was properly converted on the date the People filed the supporting deposition and the statement of readiness which accompanied it was valid]; People v. Richard , 33 Misc. 3d 855, 862-863, 929 N.Y.S.2d 723 [Crim. Ct., Kings County 2011] [holding that when a court holds a competency hearing for an infant complainant and determines that the child was capable of understanding an oath, the time between the filing of the information and the court's determination of competency was not chargeable to the People].)
In sum, the complaining witness's typed signature on the supporting deposition converted the accusatory instrument into an information. The record made by the People on December 17, 2018, and the affidavit filed by the People following that record, assured the court of its jurisdiction, thereby making the Certificate of Readiness filed on November 5, 2018, valid.
CPL 30.30 (1) (b)
Assault in the Third Degree is a misdemeanor which is punishable by a sentence of imprisonment of more than three months. The People, therefore, must announce their readiness for trial within 90 days of the commencement of the criminal action, not including any excludable periods of time ( CPL 30.30 [1 ] [b] and [4] ).
In calculating time, the court must first calculate the time between the filing of the accusatory instrument and the People's statement of readiness, subtract any time which is excludable and add any post-readiness delays that are attributable to the People and not eligible for an exclusion ( CPL 30.30 ; People v. Cortes , 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ).
On August 12, 2018, the defendant was arraigned on this case and the case was adjourned to September 25, 2018, for the People to provide a supporting deposition to convert the accusatory instrument. This time period is chargeable to the People. (44 days charged / 44 days total)
On September 25, 2018, the People did not have a supporting deposition and the case was adjourned to November 20, 2018, for the People to provide a supporting deposition. On November 5, 2018, the People filed a Certificate of Readiness with the required supporting deposition. For the reasons previously set forth in this court's decision, only the time period from September 25, 2018, until November 5, 2018, is chargeable to the People. (41 days charged / 85 days total) On November 20, 2018, the People informed the court that they had filed the requisite supporting deposition to convert the accusatory instrument. The court, believing that an affidavit was necessary before it could accept the supporting deposition, adjourned the case to December 17, 2018, for supporting deposition.
Defendant argues that this entire time period should be chargeable to the People as they never stated ready, in court or via a Certificate of Readiness, during this time period. However, the People previously stated ready in a valid Certificate of Readiness on November 5, 2018. Moreover, on November 20, 2018, the case was not adjourned for trial. At no point did the People change their readiness status, nor did they attempt to file a different supporting deposition. Instead, on the next court date of December 17, 2018, the People continued to maintain that the supporting deposition filed with the Certificate of Readiness on November 5, 2018, was sufficient to convert the hearsay in the accusatory instrument. Once the People have announced their readiness for trial, they only need to reiterate their readiness when the People have caused a delay that directly prevents the case from proceeding to trial (see People v. Cortes , 80 N.Y.2d 201, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ). Accordingly, as this court has ruled that the Certificate of Readiness filed on November 5, 2018, valid, and there had been no change in the posture of this case that would require the People to announce their readiness for trial, this time period is excludable. (0 days charged / 85 days total)
Defendant's argument that the calendar court previously ruled the time period from November 20, 2018 through February 13, 2019, was chargeable to the People is unpersuasive. First, a review of the minutes from November 20, 2018, and December 17, 2018, show that the calendar court did not make any ruling regarding whether the adjournment periods would be chargeable to the People. Second, even if the calendar court had made such a ruling, the determination would not be binding upon this court. Ultimately, whether time is chargeable to the People "is a determination which is to be made when the defendant moves to dismiss on speedy trial grounds, and not at the time the adjournment is granted." (People v. Berkowitz , 50 N.Y.2d 333, 349, 428 N.Y.S.2d 927, 406 N.E.2d 783 [1980].)
On December 17, 2018, the assigned Assistant District Attorney appeared in court on this case and explained to the court the circumstances surrounding the electronic signature. At that time the court accepted the supporting deposition that had been filed on November 5, 2018, and requested that the People file an affidavit which stated what the People told the court on the record. The case was adjourned to February 13, 2019, for trial. For the reasons previously set forth in this decision, this time period is excludable. (0 days charged / 85 days total)
On February 13, 2019, the People announced that they were not ready for trial and requested that the case be adjourned to February 15, 2019. However, the court adjourned the case to March 19, 2019, for trial.
Defendant contends this entire time period should be chargeable to the People as they were in a pre-readiness state and therefore could not make specific time requests when stating not ready for trial. However, as this court has determined that the Certificate of Readiness that was filed on November 5, 2018, was valid, the case was in a post-readiness posture. A post-readiness delay will be charged to the People when the delay "is attributable to their inaction and directly implicates their ability to proceed to trial" ( People v. Carter , 91 N.Y.2d 795, 799, 676 N.Y.S.2d 523, 699 N.E.2d 35 [1998] ). "By contrast, postreadiness delay attributable to the court is not charged to the People." ( People v. Goss , 87 N.Y.2d 792, 797, 642 N.Y.S.2d 607, 665 N.E.2d 177 [1996].) "Thus, ‘as to periods of delay that occur following the People's statement of readiness, any period of an adjournment in excess of that actually requested by the People is excluded’ " ( People v. Brown , 28 N.Y.3d 392, 404, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016] citing People v. Boumoussa , 104 A.D.3d 863, 863, 961 N.Y.S.2d 297 [2d Dept. 2013] ). Accordingly, the People are only charged for the time period from February 13, 2019, to February 15, 2019. (2 days charged / 87 days total)
On March 19, 2019, the People announced that they were ready for trial. The defendant was not present, and his presence was excused by the court because the defendant was serving jury duty. The case was adjourned to April 3, 2019, for trial. This time period is excludable. (0 days charged / 87 days total)
On April 3, 2019, the People announced that they were ready for trial, however, defendant filed the instant motion. A motion schedule was set and the case was adjourned to May 9, 2019, for the court's decision. This time period is excludable for motion practice ( CPL 30.30 [4 ] [a] ). (0 days charged / 87 days total)
On May 9, 2019, the People filed their response to the instant motion, after the court had previously granted an extension of time for the People to file their response. The case was adjourned to June 10, 2019, for the court's decision. This time period is excludable for motion practice ( CPL 30.30 [4 ] [a] ). (0 days charged / 87 days total)
On June 10, 2019, the case was adjourned to July 10, 2019, for the court to finalize its decision on the instant motion. This time period is excludable for motion practice ( CPL 30.30 [4 ] [a] ). (0 days charged / 87 days total)
Both the People's request for an extension of time to file their response, as well as the court's delay in issuing a decision, resulted from issues in obtaining the minutes from the November 20, 2019, court appearance.
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Accordingly, the People are charged with 87 days. Since the People have not exceeded the 90-day time frame set forth in Criminal Procedure Law section 30.30, the defendant's motion to dismiss is denied.
CONCLUSION
For the foregoing reasons, the accusatory instrument was converted to an information when the People filed the requisite supporting deposition on November 5, 2018, and therefore, the Certificate of Readiness which was also filed on November 5, 2018, is valid. Accordingly, the defendant's motion to dismiss the accusatory instrument on speedy trial grounds pursuant to CPL 30.30 (1) (b), is denied. The People are charged with 87 days.
This constitutes the decision and order of the court.