Opinion
No. 2015QN034584.
10-26-2015
The PEOPLE of the State of New York v. Bernard WELCOME, Defendant.
Marla A. Band, Esq., Queens County Legal Aid Society, for Defendant. ADA Caroline Schneider, Queens County District Attorney's Office, for the People.
Marla A. Band, Esq., Queens County Legal Aid Society, for Defendant.
ADA Caroline Schneider, Queens County District Attorney's Office, for the People.
MICHELLE A. ARMSTRONG, J.
Recitation, as required by CPLR 2219[a], of the papers considered in the review of this motion:
Papers Considered
Defendant's n/m (facial sufficiency), September 9, 2015, Marla A. Band, Esq., Queens County Legal Aid Society, affirm
People's Affirmation in Opposition filed on September 25, 2015, ADA Caroline Schneider, Queens County District Attorney's Office, affirm
Supporting Deposition, subscribed and verified by Callesha Wright, dated August 3, 2015
By motion filed September 9, 2015, defendant moves to dismiss the accusatory instrument as facially insufficient pursuant to C.P.L §§ 100.40 and 100.30. Specifically, defendant posits that “[u]ntil the legislature authorizes verification by email under CPL § 100.30, an electronic signature cannot validly convert a misdemeanor complaint into an information based solely on the opinion of members of the judiciary.” The People, by Affirmation in Opposition, contend that electronic signatures are acceptable to convert misdemeanor complaints to informations so long as the supporting depositions are properly subscribed and verified such that it “reflect[s] the intent of the person making it. For the reasons set forth below, the defendant's motion is DENIED.
Defendant is charged with one count of Criminal Mischief in the Fourth Degree ( Penal Law § 145.00[1] ), a class A misdemeanor. On July 10, 2015, defendant was arraigned on the misdemeanor complaint; and the case was adjourned to August 11, 2015, for a supporting deposition. Off-calendar, on August 4, 2015, the People served and filed a supporting deposition bearing the complainant's electronic signature; copies of email correspondence between the complainant and an assistant district attorney; and a sworn affidavit signed by said Assistant District Attorney.
To be sufficient on its face, a misdemeanor information must contain non-hearsay factual allegations providing reasonable cause to believe that the defendant committed the offense(s) charged; and which establish, if true, every element of the offense(s) charged ( CPL §§ 100.15[3] ; 100.40[1][b] and [c] ). The reasonable cause standard is met by allegations of an evidentiary nature that disclose facts or circumstances which, collectively, bear such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense(s) was committed and that defendant committed it ( CPL § 70.10[2] ). When conducting a sufficiency review, the court must consider the factual allegations in the accusatory instrument in tandem with those of any supporting depositions or other non-hearsay documents which may accompany it ( CPL § 100.40[1][b] ). An information which fails to satisfy this prima facie case requirement is jurisdictionally defective. ( CPL §§ 170.30 and 170.35 ; People v. Alejandro, 70 N.Y.2d 133 [1987] ; People v. Dumas, 68 NY3d 729 [1986] ).
A valid supporting deposition is a written instrument accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint, subscribed and verified by a person other than the deponent of such acc usatory instrument, and 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 (see CPL § 100. 20 ). The phrase “factual allegations of an evidentiary character” means nonconclusory descriptions of what the deponent personally observed, heard or experienced (see People v. Dumas, 68 N.Y.2d 729 [1986] ). Further, the requirement that the supporting deposition “support or tend to support” the charges in the accusatory instrument, is satisfied by factual assertions demonstrating that the deponent is aware of the allegations and charges in the accusatory instrument and adopts them as his/her own (see People v. Phillipe, 142 Misc.2d 574, 578, 538 N.Y.S.2d 400 [Crim Ct. Kings County 1989] ).
To subscribe a document means merely to sign it (James v. Patten, 6 N.Y. 9 (1851) ; People v. Mercado, 123 Misc.2d 775, 474 N.Y.S.2d 950 (Crim Ct. N.Y. County 1984). A signature is defined as any memorandum, mark or sign, written, printed, stapled, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing (General Construction Law § 46 ). Hence, the most important feature of a signature is that it reflect the intent of the signatory (People v. LoPinto, 27 A.D.2d 63 [3rd Dept.1966] ). To that end, courts have routinely upheld various forms of markings as a valid signature (see Matter of Mack, 21 A.D.2d 205 [3d Dept 1964] [holding that initials qualify as a signature, the court reasoned that it is immaterial how a person signs his name or adopts his signature); Mohawk Airlines v. Peach, 81 Misc.2d 211, 365 N.Y.S.2d 331 [Sup Ct. Oneida County 1974] [typewritten initials qualify as a signature]; Brooklyn City R.R. Co. v. City of New York, 139 Misc. 691, 365 NYS 496 [App Term, 2d Dept 1930] [printed, typewritten or lithographed signature held valid so long as adopted as such).
CPL § 100.30 prescribes, in relevant part, that a supporting deposition, may be verified by the instrument bearing a form notice that false statements made therein are punishable as a Class A misdemeanor pursuant to PL § 210.45, and such form notice together with the subscription of the deponent constitute a verification of the instrument (see CPL § 100.30[d] ). The verification requirement is the written equivalent of a testimonial oath (see People v. Phillipe, at 579 [verification alerts the witness that his statement has jural effect on himself as well as on others] ). As such, the essence of the statutory mandate that supporting depositions be “subscribed and verified” is accountability: to wit, placing a prospective witness/deponent on notice of the legal consequences of making false or misleading statements (Id.; see also People v. Holmes, 93 N.Y.2d 889, 891–91, 689 N.Y.S.2d 687 [1999] ).
In this case, the assistant district attorney (hereinafter ADA) sent correspondence to the complainant, via email, wherein the ADA forwarded the accusatory instrument, the unsigned supporting deposition, and specific instructions. More particularly the ADA instructed the complainant to (1) read the entire misdemeanor complaint and supporting deposition attached to the email; (2) if the information is true and accurate and the complainant agrees to sign the supporting deposition electronically then reply to the ADA's email by typing “I agree” and her name. The ADA further advised the complainant that by clicking the reply button, and typing “I agree” followed by her name, she was (a) confirming the statements made by her in the misdemeanor complaint under penalty of perjury; and (b) said reply with her electronic signature will have the same force and effect as a handwritten signature.
Contrary to defendant's contentions, there exists clear legislative support for the use of electronic signatures in New York Courts (see People v. Johnson, 31 Misc.3d 145[A], 930 N.Y.S.2d 176 [App. Term, 9th & 10th Jud Dists 2011] [In the context of simplified traffic informations, electronic traffic tickets and the use of electronic signatures to verify the supporting depositions do not violate CPL § 100. 20]; People v. Bize (30 Misc.3d 68 [App. Term, 9th & 10th Jud Dists 2010] [an issuing officer's electronic signature on a supporting deposition may be deemed adopted by the officer with the intent to sign the record, and with the same validity and effect as the use of a signature affixed by hand]; People v. Gustalvo PerezSanchez, 47 Misc.3d 612, 3 NYS3d 886 [Crim Ct. Queens County 2015] [email correspondence between ADA and complainant and supporting deposition bearing electronic signature complies with mandates of CPL § 100. 20 and therefore validly converts the accusatory instrument to an information]; [see also N.Y. State Tech § 304[2] ). Moreover, New York Courts have implemented this legislative policy by its use, acceptance, and expansion of electronic filings throughout its institutions (see Perez–Sanchez, supra, citing NYLJ, November 14, 2014, p. 4, col. 3).
Applying these principles to the instant case, I find that the supporting deposition bearing the complainant's electronic signature filed on August 4, 2015, meets the legal and statutory requirements of CPL §§ 100. 20 or 100.30. Specifically, the complainant, by replying “I agree” evinced her intent to adopt the factual averments in the accusatory instrument as her own. Moreover, the complainant was duly apprised of the jural effect of clicking the reply button and typing her name. By doing so, the verification prong of the statute was satisfied. Accordingly, defendant's motion to dismiss the accusatory instrument on this ground is DENIED in its entirety.
The foregoing constitutes the decision and order of the court.