People v Rucano (Anthony)

[*1] People v Rucano (Anthony) 2015 NY Slip Op 50177(U) Decided on February 17, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 17, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ.
2012-1045 RI CR

The People of the State of New York, Respondent,

against

Anthony Rucano, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Alan J. Meyer, J.), rendered July 21, 2011. The judgment convicted defendant, upon his plea of guilty, of unauthorized use of a computer.

ORDERED that the judgment of conviction is affirmed.

An accusatory instrument charged defendant with installing a program on his former girlfriend's computer that records the keystrokes of that computer, including, but not limited to, account names and passwords to email accounts. At the time, defendant and his former girlfriend were living together. The accusatory instrument further charged defendant with accessing his former girlfriend's email account, from an "IP Address" registered to defendant. Defendant subsequently pleaded guilty to a charge of unauthorized use of a computer (Penal Law § 156.05).

A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (see People v Dumay, 23 NY3d 518, 522 [2014]; People v Dreyden, 15 NY3d 100, 103 [2010]). As defendant waived prosecution by information, "the facial sufficiency of the accusatory instrument" must be measured "by the standard required of misdemeanor complaints" (Dumay, 23 NY3d at 524; see People v Lurk, 41 Misc 3d 144[A], 2013 NY Slip Op 52061[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). A misdemeanor complaint must "set forth facts that establish reasonable cause to believe that the defendant committed the charged offense" (Dumay, 23 NY3d at 522), and provide "the defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy' " (Dumay, 23 NY3d at 524, quoting Dreyden, 15 NY3d at 103). " Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2]).

In this case, the reasonable cause requirement was met. Defendant's claim that the allegations in the accusatory instrument were insufficient because they were circumstantial is without merit, as an accusatory instrument may include factual allegations supported by circumstantial evidence (see People v Deegan, 69 NY2d 976, 979 [1987]; People v Cooks, 230 AD2d 683, 684 [1996]; People v Essalek, 17 Misc 3d 835, 840 [Crim Ct, NY County 2007]; People v Dixson, 9 Misc 3d 358, 361 [Crim Ct, Kings County 2005]). Furthermore, a reasonable inference can be drawn that defendant committed the alleged acts, because the program had been [*2]installed on his former girlfriend's computer at a time when they were living together, and his former girlfriend's email account was accessed from an "IP Address" registered to defendant (see People v Agrocostea, 35 Misc 3d 1241[A], 2012 NY Slip Op 51098[U] [Crim Ct, NY County 2012]).

Accordingly, the judgment of conviction is affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur.

Decision Date: February 17, 2015