People v Robertson

[*1] People v Robertson 2016 NY Slip Op 50262(U) Decided on March 2, 2016 Criminal Court Of The City Of New York, Kings County Daniels-DePeyster, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 2, 2016
Criminal Court of the City of New York, Kings County

The People of The State of New York, Plaintiff,

against

Jason Robertson, Defendant.



The People of The State of New York, Plaintiff,

against

Darrell Williams, Defendant.



2015KN042484



Attorneys:

Kenneth P. Thompson

Kings County District Attorney

By ADA Jonathan I. Smith

350 Jay Street

Brooklyn, NY 11201-2908

Daniel Ades, Esq., of Counsel

Justine Luongo, Esq.

Attorney for Defendant Robertson

The Legal Aid Society

111 Livingston Street

Brooklyn, NY 11201

Scott R. Hechinger, Esq.

Attorney for Defendant Williams

Brooklyn Defender Services

177 Livingston Street, 7th floor

Brooklyn, New York 11201
Claudia Daniels-DePeyster, J.

Defendants Jason Robertson (Docket No. 2015KN042484), and Darrell Williams (Docket No. 2015KN042485) are each charged (in separate instruments) with Unauthorized Use of a Vehicle in the Third Degree, Penal Law § 165.05 (1), a class A misdemeanor, and with Attempted Petit Larceny, Penal Law § 110/155.25, a class B misdemeanor.

By motion dated October 23, 2015, defendant Robertson moves for dismissal of the accusatory instrument (Docket No.: 2015KN04284) pursuant to Criminal Procedure Law (CPL) 30.30. The People oppose the motion by response filed November 12, 2015.The defendant served and filed a reply to the Court's Interim Order and the People's Additional Submissions, dated December 30, 2015.

By motion dated November 13, 2015, defendant Williams moves for dismissal of the accusatory instrument (Docket No.: 2015KN04285) pursuant to CPL 30.30. The People oppose the motion by response filed November 30, 2015. The defendant served and filed a supplemental affirmation dated December 22, 2015.

In determining the motions, the court has reviewed the court files and the motion papers of all parties. For the reasons stated below, the defendants' motions to dismiss are denied.

SPEEDY TRIAL MOTION

CPL 30.30 (1) (b) mandates that the People must be ready for trial within 90 days from the commencement of a criminal action when the defendant is charged with one or more offenses, at least one of which is a misdemeanor punishable by more than three months in jail. The defendants in these two docketed cases were arraigned on accusatory instruments that each included an A misdemeanor as the highest charge, which carries a possible sentence of imprisonment of more than three months (Penal Law § 70.15[1]). Therefore, the People must be ready for trial within 90 days of the commencement of the action. Failure to abide by the time limits imposed by CPL 30.30 requires dismissal of the accusatory instrument.

The defendant bears the burden of going forward by sworn allegations of fact to show that there has been an inexcusable delay beyond the time allowed by statute, and then the People have the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss (People v Santos, 68 NY2d 859 [1986]; People v Berkowitz, 50 NY2d 333 [1980]).

Whether the People have met their obligation to be ready for trial within the applicable trial readiness period is generally determined by computing the time which has elapsed between commencement of the action and the People's declaration of readiness for trial, subtracting any periods of delay that are excludable under the terms of CPL 30.30 and then adding any post-readiness periods of delay which are attributable to the People and are ineligible for exclusion (People v Cortes, 80 NY2d 201 [1992]).

The crucial issue common to both defendants' cases is whether the September 20 [*2]corroborating affidavit [FN1] of one of the complaining witnesses, Michael Dembinsky, was legally sufficient to convert the two complaints into informations.[FN2] If it was not properly verified, then the accusatory instrument was not converted into an information and the People's September 22 written statement of readiness was ineffective.

Calculating Includable and Excludable Time

Defendant Robertson [FN3]

July 2, 2015 to September 9, 2015

Defendant Robertson was arraigned on a criminal court complaint on July 2. The case was adjourned for conversion purposes to September 9, 2015. On September 9, the People did not convert the charges, and the case was adjourned to October 5, 2015 for conversion.

The Court finds, and the People concede, that they are charged for the period from July 2, 2015 to September 9, 2015, 69 days pre-readiness delay.[FN4] [69 days, 69 total days charged].

Defendant Williams

July 2, 2015 to September 15, 2015

Defendant Williams was arraigned on a criminal court complaint on July 2. The case was adjourned for conversion purposes to July 7, 2015. On July 7, the charges were not converted and therefore, the People could not be ready for trial (People v England , 84 NY2d 1 [1994]). The case was adjourned to September 15, 2015 for conversion. On September 15, the People answered "not ready for trial" and the case was adjourned for "conversion or 30.30" to October 8, 2015.

The Court finds, and the People concede, that they are charged 75 days pre-readiness delay for the period from July 2, 2015 to September 15, 2015. [75 days, 75 total days charged].

The September 22, 2015 Statements of Readiness

On September 22, 2015, the People served and filed, off calendar, two corroborating affidavits for each docket (2015KN042484 and 2015KN042485) — one for complaining witness Abraham Rosenberg and one for complaining witness Michael Dembinsky [FN5] — together with statement of readinesss for trial. The People contend that on that date, they had converted each accusatory instrument to an information and that they were ready for trial.[FN6]

If the People are correct that the corroborating affidavits converted each of the complaints into an information, that coupled with the People's statement of readiness, means that the accrual of chargeable time stopped at 82 days for each defendant. (For defendant Williams, 7 days for the period from September 15 through September 22 are added to the previously accrued chargeable time of 75 days. For defendant Robertson's case, 13 days for the period from September 9 through September 22 are added to the previously accrued chargeable time of 69 days.)

However, the defendants argue separately that the corroborating affidavit for one of the complaining witnesses, Michael Dembinsky, was improperly endorsed and thus failed to convert the accusatory instrument into an information, pursuant to CPL §§ 100.15, 100.20, 100.30 and 100.40; and therefore, the People could not possibly be ready for trial, regardless of the written statements of readiness.

The corroborating affidavit in question is in the familiar form that states:

"I, Michael Dembinsky, have read the accusatory instrument filed in this action. The facts in that instrument stated to be on information furnished by me are true to my personal knowledge."[FN7]

Above the space indicated for the complaining witness's signature, is a jurat, which reads: "False statements made in this document are punishable as a class A' misdemeanor pursuant to section 210.45 of the Penal Law." What distinguishes this from the typical corroborating affidavit is that instead of someone's handwritten signature, there is superimposed on the line provided for the complaining witness's signature, a boldface box containing the following type: "9/20/15. . . . Michael Dembinsky."

Defendant Robertson contends, among other things, that "the method of signature submitted by the prosecution cannot form the basis of a perjury prosecution, and thus cannot be used to corroborate hearsay in an accusatory instrument" (Def. Memo of Law, p.5). He specifically relies [*3]upon People v Feola, 40 AD3d 874 (2nd Dept 2007), for this argument. However, the court in Feola never held that this method of signature on an affidavit cannot form the basis of a perjury prosecution, or any other kind of prosecution. In Feola, a police officer was convicted of perjury for signing an affidavit that allegedly contained false statements, and returning it by fax to the assistant district attorney. The court overturned his conviction — which had been based solely on circumstantial evidence — because "[t]he People inexplicably failed to proffer any direct evidence that the affidavit bore the actual signature of the defendant. Under these circumstances, the evidence was legally insufficient to sustain the conviction beyond a reasonable doubt."

Defendant Robertson also argues that "corroboration of a misdemeanor complaint by electronic signature of any kind has not been authorized by the legislature and cannot be authorized by the judiciary;" and that in the instant case ". . . in place of a sworn corroborating affidavit from Michael Dembinsky, the People filed an unsworn supporting deposition that appeared to be electronically stamped with a box containing the name Michael Dembinsky superimposed on top of the signature line. This argument is also made, more or less, by Defendant Williams.

The defendants both discuss, among other things, the important differences between civil and criminal cases, proposed legislative changes — that to date have not been enacted — regarding verification of signatures on affidavits, and the need for courts to avoid judicial activism. Although this court may not disagree with some of these statements, they miss the point and are without merit when discussing the issue before the court.

Additionally, both defendants contend that the only case directly on point on this issue, People v Sanchez (47 Misc 3d 612 [Crim Ct, Queens County 2015]), was "wrongly decided." The arguments to support their position, however, are unavailing.

Here, with respect to defendants Robertson and Williams, the question is whether Michael Dembinsky's affidavit satisfies the legal requirements to convert the accusatory instruments into jurisdictionally sufficient informations.

Regarding the legal sufficiency of an accusatory instrument, the Court of Appeals stated the following in People v Casey (95 NY2d 354, 360 [2000]):

"The procedural requirements for the factual portion of a local criminal court information are, simply: that it state facts of an evidentiary character supporting or tending to support the charges' (CPL 100.15 [3]; see, CPL 100.40 [1][a] ); that the allegations of the factual part. . . together with those of any supporting depositions . . . provide reasonable cause to believe that the defendant committed the offense charged' (CPL 100.40 [1] [b] ); and that the [n]on-hearsay allegations [of the information and supporting depositions] establish, if true, every element of the offense charged and the defendant's commission thereof' (CPL 100.40 [1] [c]; see, CPL 100.15[3] )."

CPL 100.30 provides for the verification of an information, misdemeanor complaint, felony complaint, supporting deposition, and proof of service of supporting depositions. Specifically, CPL [*4]100.30 (1) (d) provides that "[s]uch instrument may bear a form notice [FN8] that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument [emphasis added]."

The defendants argue that the typed-in-name of the witness is not a "signature" and thus the corroborating affidavit is not "subscribed and verified;" and, in turn, without a corroborating affidavit, the accusatory instrument has not been converted into an information upon which the People may declare readiness for trial.

It does not appear that the Criminal Procedure Law has specifically defined the term "subscription." As the Sanchez court did, so does this court look to case law and statutory authority for the definition of "subscription." "Subscribed means. . . to sign one's name at the end of a document (James v Patten, 6 NY 9 [1851]; People v Mercado, 123 Misc 2d 775 [Crim Ct, NYC 1984])" (Sanchez, at 614). Furthermore, General Construction Law § 46, defines the term "signature" 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'" (id). In People v Mercado, supra, the court found that there have been "[u]pheld as valid signatures . . . initials or a mark . . .; typewritten initials . . .; printed, typewritten or lithographed signature . . .". Additionally, New York State Technology Law § 304 (2) provides, in pertinent part, ". . . unless specifically provided otherwise by law, 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."

Therefore, the typed signature of Michael Dembinsky is a valid subscription and verification on the corroborating affidavit. As such, when the People filed and served the corroborating affidavits, the accusatory instruments were converted and the statements of readiness were effective, on September 22, 2015. Thus, the "30.30 clock" stopped on September 22, 2015.

It is noted that during the motion schedule phase of the Robertson case, the court directed the People to supply an affidavit wherein the complaining witness would attest that he had earlier read and verified, albeit through an electronic signature, the corroborating affidavit that the People had originally submitted on September 22.

The Affidavit of Michael Dembinsky (which appears below the caption containing the names of both defendants and both docket numbers), states:

" I, Michael Dembinsky, being duly sworn, depose and say:

SEPTEMBER 20, 2015 SUPPORTING DEPOSITION

That I am the Michael Dembinsky who read, verified the truthfulness of, and swore to the allegations contained in the criminal complaint against the above named Defendants on September 20, 2015.

ELECTRONIC SIGNATURE

That on September 20, 2015, I affixed my name (Michael Dembinsky) and date (9/20/15) to the supporting deposition sent to [*5]me from Assistant District Attorney Jonathan Smith by way of electronic typing. This was done after I read the aforementioned criminal complaint filed against the above named Defendants.

SUPPORTING DEPOSITION SENT BACK TO THE ASSISTANT DISTRICT ATTORNEY

That on September 20, 2015 I attached the above mentioned, signed, supporting deposition to an e-mail and sent said e-mail to Assistant District Attorney Jonathan Smith and that I stated in the body of the e-mail Here you go . . .'"

A handwritten signature dated 12/1/2015, appears below the jurat: "FALSE STATEMENTS MADE IN THIS DOCUMENT ARE PUNISHABLE AS A CLASS A MISDEMEANOR PURSUANT TO SECTION 210.45 OF THE PENAL LAW." The document was notarized on 12/1/2015.

The court's direction to the People occurred in the context of the resolution of defendant Robertson's CPL 30.30 motion.[FN9] The court decided that the product of this second affidavit was a more efficient use of the court's limited resources instead of a full blown evidentiary hearing, and addressed in a meaningful way defendants' concerns about Michael Dembinsky's intent and the reliability of the electronic signature. The court at no time indicated that this second affidavit was necessary to convert the complaint into an information. This was accomplished by the original corroborating affidavit which the court has determined fully satisfies the requirements of the criminal procedure law.

As for defendant Robertson, the time charged from September 9, 2015 through September 22, 2015 amounts to 13 days. Adding this to the previous subtotal of 69 days of chargeable time, the total time accrued under CPL 30.30 amounts to 82 days of time charged to the People. [13 days, 82 total days charged].

As for defendant Williams, the time charged from September 15, 2015 through September 22, 2015 amounts to 7 days. Adding this to the previous subtotal of 75 days of chargeable time, the total time accrued under CPL 30.30 amounts to 82 days of time charged to the People. [7 days, 82 total days charged].

Therefore, there are 82 days of chargeable time under both dockets. Since the highest charge in each of the instant cases is an A misdemeanor, the People have 90 days in which to declare their readiness for trial. Therefore, the People have not exceeded the time limit in which to be ready for trial under CPL 30.30.

Accordingly, defendants' motions to dismiss the instant accusatory instruments is denied.

The foregoing constitutes the Decision and Order of this Court.

Dated:March 2, 2016

Brooklyn, New York

/s/

Hon. Claudia Daniels-DePeysterJudge of the Criminal Court Footnotes

Footnote 1:The People had submitted to the complaining witness a single corroborating affidavit form that bore the names and docket numbers of both defendants. Thus, any defect in that one form would affect both defendants.

Footnote 2:Although the assistant district attorney (ADA) and the defendants in this case use the term "supporting affidavits," the court points out that this term is being used erroneously, and the correct term is "corroborating affidavit." A supporting affidavit is defined in CPL 100.20 as an affidavit that sets forth additional facts of an evidentiary nature by someone other than the listed complainant. The form in question in the case at bar is an affidavit that corroborates the written statements that are already contained in the complaint.

Footnote 3:Defendants Robertson and Williams were arrested together, and arraigned on the same day.However, other than the first appearance in court for arraignment purposes, they never again had their cases adjourned to the same dates. Their cases will be heard together again on March 3, 2016, the date this court has set for decision on these motions.

Footnote 4:It is noted that although time is counted from the day after the accusatory instrument is filed (People v Stiles, 70 NY2d 765 [1987]), where, as in this case, it is not perfectly clear on what date the accusatory instrument was filed, it is clear that it had been filed by the arraignment date; and thus we start counting by the arraignment date.

Footnote 5:Annexed to the corroborating affidavit were copies of the e-mail transmissions between ADA Jonathan I. Smith and Michael Dembinsky dated September 20, indicating that Mr. Dembinsky was to read the attached criminal complaint against the defendants, sign the attached supporting affidavit, and return the supporting affidavit to him as soon as possible. Mr. Dembinsky attached his "signed" supporting affidavit to his September 20 reply to ADA Smith and stated "Here you go. . .".

Footnote 6:A written statement of readiness is deemed effective at the time of filing (People v Kendzia, 64 NY2d 331, 337 [1985]; People v Cenat, 176 Misc 2d 39, 44 [Crim Ct, Kings County 1997]).

Footnote 7:The heading in the corroborating affidavit indicates two docket numbers (2015KN042484 and 2015KN042485), and the defendant (singular) indicated: Jason Robertson and Darrell Williams.

Footnote 8:Neither defendant contends that the instrument in question failed to bear this form jurat; and the court finds that the instrument did bear such form notice.

Footnote 9:The People were also directed to serve this affidavit on counsel for defendant Williams.