Opinion
2018NY045070
03-13-2019
The PEOPLE of the State of New York, Plaintiff, v. Lateek WILLIAMS, Defendant.
New York County Defender Services, New York City (Renate Lunn of counsel), for defendant. Cyrus R. Vance, Jr., District Attorney, New York City (Andrea Osgood of counsel), for plaintiff.
New York County Defender Services, New York City (Renate Lunn of counsel), for defendant.
Cyrus R. Vance, Jr., District Attorney, New York City (Andrea Osgood of counsel), for plaintiff.
Richard Tsai, J.Defendant is charged with one count of petit larceny ( Penal Law § 155.25 ). In this motion, he now moves to controvert the conversion of the accusatory instrument, on the ground that the supporting deposition bears an electronic signature. The People oppose the motion. For the reasons below, defendant's motion is DENIED.
BACKGROUND
The accusatory instrument alleges, in relevant part, that on or about November 2, 2018, at about 6:06 p.m., inside the Sephora store at 557 Broadway in the County and State of New York, Lyanne Nieves, a loss prevention agent, observed defendant removing approximately five Chanel fragrances from the display rack, placing the items in a bag, bypassing the store cash registers, and leaving the store without paying for those items and without permission or authority to do so. Ms. Nieves allegedly informed Detective Fabrian Pelaez about defendant's conduct, and Detective Pelaez then allegedly told Detective Kolin Kaufmann, the deponent, about the incident.
On November 16, 2018, defendant was arrested, charged, and arraigned the next day. The court (Drager, J.) set bail and adjourned the case to Part C on November 21, 2018, for the People to file two supporting depositions.
On November 21, 2018, the People filed a supporting deposition from Ms. Nieves. The supporting deposition states, "I, Lyanne Nieves ... being duly sworn, depose and say: that I have read the Accusatory Instrument filed in the above-entitled action and attached hereto and that the facts therein stated to be on information furnished by me are true upon my personal knowledge." The supporting deposition appears to be signed, and above the signature appears the notice, "False statements made herein are punishable pursuant to section 210.45 of the penal law, and as other crimes." Below the signature line appears Ms. Nieves's typed first and last name, followed by the date "(Nov 19, 2018)."
The People conceded that defendant was entitled to release from custody pursuant to CPL 170.70. The court (Moses, J.) released defendant on his own recognizance and adjourned the case to January 10, 2019, for the People to file one more supporting deposition.
On January 10, 2019, the People filed a supporting deposition from Detective Pelaez. The court (Weston, J.) deemed the misdemeanor complaint an information, set a motion schedule, and adjourned the case to February 4, 2019, for response and decision on defendant's motion. Defendant filed this omnibus motion on January 16, 2019, seeking to controvert conversion of the misdemeanor complaint to an information, seeking suppression hearings, and other relief.
On February 4, 2019, the People consented to hearings on the suppression issues and requested additional time to respond to the issue of facial sufficiency. The court (Tsai, J.), granted the People's request for more time, instructed them to file their response off calendar by February 14, 2019, and adjourned the case to February 22, 2019 for decision. Because the People filed and served their response on the adjourn date, the court (Marcus, J.), adjourned the case to March 14, 2019, again for decision.
DISCUSSION
Motion to Controvert Conversion
A misdemeanor complaint is deemed to have been converted to an information when it is supplemented by a supporting deposition and such instruments, taken together, satisfy the requirements for a valid information ( CPL 170.65 [1 ] ). Pursuant to CPL 100.40 (1), an information is sufficient on its face when, among other things: (1) the allegations provide reasonable cause to believe that the Defendant committed the offense charged, and (2) the non-hearsay allegationsestablish, if true, every element of the offense charged and the defendant's commission thereof.
The requirement that a misdemeanor information set forth nonhearsay allegations is known as "the prima facie case requirement" ( People v. Kalin , 12 N.Y.3d 225, 228–29, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009] [citing People v. Henderson , 92 N.Y.2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165 (1999) and CPL 100.40 (1) (c) ] ). The defendant's hearsay challenge to a count of the information should be raised by way of a formal motion to dismiss that count ( People v. Brooks , 190 Misc.2d 247, 249, 736 N.Y.S.2d 823 [App. Term, 1st Dept. 2001] ).
"The prima facie standard may be accomplished by the People filing a supporting deposition" ( People v. Brothers , 58 Misc.3d 664, 666, 66 N.Y.S.3d 873 [Crim. Ct. Kings County 2017] ). An information that fails to allege a complete element of the charged offense is jurisdictionally defective ( Kalin , 12 N.Y.3d at 228—229, 878 N.Y.S.2d 653, 906 N.E.2d 381 ). Here, it is undisputed that the accusatory instrument required two supporting depositions for conversion: one from Nieves, and another from Detective Pelaez. Defendant does not challenge the validity of Pelaez's supporting deposition.
As to Nieves's supporting deposition, CPL 100.20 requires a supporting deposition to be "subscribed and verified." CPL 100.30 (1) sets forth five different ways in which a supporting deposition may be verified, including where the supporting deposition bears "a form notice that false statements made therein are punishable by a class A misdemeanor pursuant to section 210.45 of the penal law," and is subscribed by the deponent ( CPL 100.30 [1 ] [d] ). Here, counsel does not dispute that the requisite form notice appears on Nieves's supporting deposition, above her signature.
When this method of verification is used, the instrument need not be sworn to before a notary public or some other official authorized to take an oath (People v. Charvat , 8 Misc.3d 13, 15, 797 N.Y.S.2d 697 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2005] ).
Nieves's signature appears to be in cursive writing, as if she had signed the supporting deposition directly. However, counsel contends that Nieves's supporting deposition was not properly verified because it "bears an electronic signature acquired via email" (Lunn Affirm. at 17). The People do not dispute counsel's contention that Nieves's handwritten signature was placed upon the supporting deposition through some electronic means. Thus, the narrow issue presented is whether a supporting deposition can be validly subscribed through electronic means.
Counsel contends that the Legislature did not authorize an "electronic signature" as a method of verification because, in 2010 and again in 2012, the Advisory Committee to the Chief Administrative Judge of the Courts of the State of New York (Advisory Committee) proposed that the Legislature amend the Electronic Signatures and Records Act (ESRA) ( State Technology Law § 301 et seq. ) to make the ESRA expressly applicable to criminal proceedings, and the Legislature has not done so (Lunn Affirm. at 19, citing Report of the Advisory Committee on Local Courts to the Chief Administrative Judge of the Courts of the State of New York, January 2010, at 12, https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2010-LocalCourts-ADV-Report.pdf [last accessed Mar. 13, 2019] ). Counsel also contends that a supporting deposition signed by an "electronic signature" is not validly subscribed because the deponent would not be subject to prosecution for perjury, citing People v. Feola , 40 A.D.3d 874, 836 N.Y.S.2d 270 (2d Dept. 2004) (Lunn Affirm. at 22).Finally, to the extent that signature was obtained via email, counsel argues "there is no indication of how the prosecutor verified that this email account was registered to the complainant, where the computer or device from which the email account was accessed was located, or who was using the computer or email address at the time the email was received and signed" (id. at 21). Counsel stresses, "[e]ven if Ms. Nieves did open the email, there is no way to verify her state of mind at the time she opened it and provided an electronic signature" (id. at 25).
In opposition, the People counter that verification of a supporting deposition by an electronic signature is proper and acceptable," citing several lower court cases (Osgood Affirm. ¶ 3).
As the People point out, other courts have accepted "electronic signatures" upon supporting depositions as valid ( Brothers , 58 Misc.3d 664, 66 N.Y.S.3d 873 ; People v. Rodriguez , 50 Misc.3d 1223[A], 2016 WL 803026 [Crim. Ct., Queens County 2016] ; People v. Robertson , 50 Misc.3d 1224[A], 2016 WL 867532 [Crim. Ct., Kings County 2016] ; People v. Welcome , 50 Misc.3d 1223[A], 2015 WL 10382566 [Crim. Ct., Queens County 2015] [collecting cases] ). These courts reason that, "[t]o subscribe a document means merely to sign it" ( Rodriguez , 50 Misc.3d 1223[A], citing James v. Patten , 6 N.Y. 9 [1851] ), and that an electronic signature is valid because a signature can be any " ‘any memorandum, mark or sign, written, printed, stamped, ... or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument in writing’ " ( Brothers , 58 Misc.3d at 666, 66 N.Y.S.3d 873, quoting General Construction Law § 46 ).
This court agrees. 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 (see e.g. People v. Sanchez , 47 Misc.3d 612, 3 N.Y.S.3d 886 [Crim. Ct., Queens County 2015] ). "The key is that the endorser intended to leave his mark upon a document, thereby taking some level of responsibility for its contents" ( People v. Jackson , 17 Misc.3d 788, 791, 844 N.Y.S.2d 841 [Crim. Ct. 2007] [a mark in the shape of an oval at the bottom of supporting deposition was valid] ).
Counsel's reliance upon the Legislature's inaction with respect to the recommendations of the Advisory Committee to amend the ESRA is misplaced. In the Advisory Committee's view, the standard of admissibility of electronic signatures (i.e., "in any court where the provisions of the CPLR are applicable") was inadequate to ensure that electronic signatures on the electronic version of simplified informations and supporting depositions would be placed "in a manner that complies with due process," citing People v. Rose , 11 Misc.3d 200, 208, 805 N.Y.S.2d 506 (Rochester City Ct. 2005) (Report of the Advisory Committee on Local Courts to the Chief Administrative Judge of the Courts of the State of New York, January 2010, at 12, https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2010-LocalCourts-ADV-Report.pdf [last accessed Mar. 13, 2019]; Report of the Advisory Committee on Local Courts to the Chief Administrative Judge of the Courts of the State of New York, January 2012 at 37, https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2012-LocalCourts-ADV-Report.pdf [last accessed Mar. 13, 2019] ). The concerns that were raised in People v. Rose , which involved law enforcement's use of "e-tickets," i.e., computer-generated simplified traffic informations, are not present here.
In People v. Rose , the court suggested regulatory and legislative changes, including the amendments to Criminal Procedure Law and Vehicle and Traffic Law, regarding law enforcement's use of e-tickets to issue simplified traffic informations (11 Misc.3d at 208-209, 805 N.Y.S.2d 506 ).
Contrary to counsel's contention, People v. Feola , 40 A.D.3d 874, 836 N.Y.S.2d 270, supra does not dictate a contrary result. There, a signed affidavit purportedly bearing the defendant's signature was sent back to the Assistant District Attorney by facsimile under a cover sheet bearing the defendant's name ( id. at 875, 836 N.Y.S.2d 270 ). The judgment convicting defendant, after a jury trial, of making a punishable false written statement was reversed, and the indictment was dismissed. The Appellate Division ruled that the evidence was legally insufficient to sustain the conviction beyond a reasonable doubt, because "the People inexplicably failed to proffer any direct evidence that the affidavit bore the actual signature of the defendant" ( id. at 875, 836 N.Y.S.2d 270 ). Feola did not involve an electronic signature.
Nothing in Feola suggests that a person who signed a supporting deposition by an electronic signature could not be convicted for making false statements contained therein, if the proof were legally sufficient. Moreover, as discussed above, verification of a supporting deposition using the form notice pursuant to CPL 100.30 (1) (d) does not require that it be sworn to before a notary public or some other official authorized to take an oath ( Charvat , 8 Misc.3d at 15, 797 N.Y.S.2d 697 ).
Counsel's remaining arguments are unavailing. There is no reason to believe that Nieves did not intend to place her electronic signature upon the supporting deposition (see Jackson , 17 Misc.3d at 791, 844 N.Y.S.2d 841 ). Defendant submits no evidence to the contrary (see People v. Honshj, 176 Misc.2d 170, 174, 671 N.Y.S.2d 934 [Crim. Ct., Queens County 1998] [in the absence of a clear indication from the complainant that he or she has not signed the supporting deposition, the supporting deposition was deemed sufficient to convert the complaint] ).
Because Nieves's supporting deposition was validly subscribed, and the People also filed the supporting deposition of Detective Pelaez, which is not challenged, defendant's motion to controvert the conversion of the accusatory instrument to an information is therefore denied.
CONCLUSION
Accordingly, it is hereby
ORDERED that defendant's motion is DENIED.