People v Almodovar
Annotate this CaseDecided on May 1, 2019
Criminal Court of the City of New York, Richmond County
The People of the State of New York
against
Edwin Almodovar, Defendant.
CR-004405-18RI
For the Defense:
Marion Elizabeth Campbell, Esq.
The Legal Aid Society
60 Bay Street
Staten Island, NY 10301
For the People:
Michael E. McMahon
Richmond County District Attorney
130 Stuyvesant Place, 7th Floor
New York, NY 10301
By: A.D.A. Scott Higgins
David Frey, J.
The defendant was charged in an information with Assault in the Third Degree (Penal Law 120.00 [1]), Menacing in the Third Degree (Penal Law 120.15), Criminal Possession of a [*2]Weapon in the Fourth Degree (Penal Law 265.01 [2]), Menacing in the Second Degree (Penal Law 120.14 [1]), and Harassment in the Second Degree (Penal Law § 240.26 [1]). By motion dated April 3, 2019, the defendant seeks to dismiss the information for facially insufficiency, claiming the supporting deposition's electronic signature is invalid under New York State law. The People submitted their opposition to this motion on April 17, 2019, stating that the electronic signature is proper under State Technology Law § 304. For the reasons stated below, the defendant's motion to dismiss is denied.
FACIAL INSUFFICIENCY
CPL 100.40 provides that an information is sufficient on its face when it substantially conforms with the requirements of CPL 100.15 (1). To be sufficient on its face, an information must contain an accusatory section, a factual section, and must specify the offense charged (CPL 100.15 [1]-[3]). The factual section must contain a statement from the complainant "alleging facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3]; People v Matthew P., 26 NY3d 322 [2015]; People v Casey, 95 NY2d 354, 360 [2000]). The factual section, along with any supporting depositions, must "provide reasonable cause to believe that the defendant committed the offenses charged." (CPL 100.40 [1] [b]; People v Dumay, 23 NY3d 518, 522 [2014]; see People v Smalls, 26 NY3d 1064 [2015]; People v Kalin, 12 NY3d 225, 228 [2009]; People v Dumas, 68 NY2d 729, 731 [1986]).
"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]).
The factual section, along with any supporting depositions, must also provide non-hearsay allegations which, if true, establish every element of the offenses and that the defendant committed those offenses (CPL 100.40 [1] [c], 100.15 [3]; Kalin, 12 NY3d at 228-229; People v Henderson, 92 NY2d 677, 679 [1999]). This prima facie case requirement does not require that the information allege facts that would prove defendant's guilt beyond a reasonable doubt (id.; People v Jennings, 69 NY2d 103, 115 [1986]). Rather, the factual allegations only need to "give an accused sufficient notice to prepare a defendant from being tried twice for the same offense" (People v Casey, 95 NY2d 354, 360 [2000]); People v Smalls, 26 NY3d 1064; People v Konieczny, 2 NY3d 569 [2004]). The reviewing court must subject the allegations in the information to a "fair and not overly restrictive or technical reading, assume that those allegations are true, and consider all reasonable inferences that may be drawn from them" [*3](People v Jackson, 18 NY3d 738, 747 [2012]; see also Casey, at 360; CPL 100.40, 100.15).
The factual allegations contained in the complaint are,
"Deponent is informed by [COMPLAINANT] that at [June 30, 2018 at approximately 5:00 p.m., in Staten Island, New York, in Richmond County] defendant displayed a knife in a threatening manner and did throw said knife at informant causing informant annoyance, alarm, and fear for her physical safety.
"Deponent is further informed by informant that defendant grabbed informant, threw informant to the ground, struck informant multiple times about her face and body, grabbed informant by the hair and dragged informant across the floor, causing informant physical injury including but not limited to bruising to informant's head, face, and body, and lacerations to informant's knee and finger, as well as substantial pain, annoyance, alarm, and fear for her physical safety.
The People also filed a supporting deposition electronically signed by the complainant attesting that the facts in the complaint were true upon her personal knowledge.
The defendant argues that the supporting deposition served electronically via email is not proper because "[a]n email is not recognized as a form of verification under CPL 100.30." The defendant's main argument is that the method used by the People does not conform with CPL 100.30 (1) (d), which requires the supporting deposition to be "subscribed" by the deponent.
The supporting deposition consisted of multiple documents. First, was a captioned, supporting deposition for the case that read,
"I, [COMPLAINANT],
"Depose and say that I am the person mentioned in the accusatory instrument filed in the above-entitled action and that I have read the above accusatory instrument in this action. Further, the facts stated in that instrument to be on information furnished by me are true upon my personal knowledge. Further, I understand that an electronic signature has the same legal effect as my signature affixed by hand. I further understand that by typing the words "I agree" along with my name in a reply email, the office of the District Attorney is authorized to affix my electronic signature to this affidavit.
"False statements made herein are punishable as a class "A" misdemeanor pursuant to section 210.45 of the Penal Law.
"[COMPLAINANT]Dated: July 1, 2018"*The above is an "electronic" signature that has been authorized by the above named person pursuant to New York's electronic Signature and Records Act and New York State's Technology Law Section[s] 301-[309] (2002)."Attached to that was another captioned affirmation signed and dated July 1, 2018 by an Assistant District Attorney that stated,
"I, Nancy Fayed, depose and say I am employed by the Richmond County District Attorney's Office, and affirm the following statements to be true under penalties of perjury:
"(1)On or about , I spoke to [CARMEN LOPEZ] in the above-entitled action, and he/she agreed to sign the supporting deposition electronically.
(2)In addition, the attached emails were sent from my office email account to the complaint's email account.
(3)The attached emails are a complete and accurate copy of the emails I sent to the complainant in the above-entitled action and the complainant's response.
(4)After I received the attached email exchange, I called the complainant and confirmed that he/she typed the attached response.
"False statements made herein are punishable as a class "A" misdemeanor pursuant to section 210.45 of the Penal Law."
Attached to that was an email exchange between the complainant, who utilized an email address at gmail.com that did not contain her name, and the Assistant District Attorney, who utilized her office email, which read,
"Hello my name is ADA Nancy Fayed. This email is to confirm our earlier conversation that you have agreed to sign the supporting deposition electronically. Below is a copy of the accusatory instrument that has been drafted in connection with the case. Your supporting deposition is currently unsigned. Please read the entire complaint below and also review the supporting deposition at the end of this email. IF the information is true and accurate and you still agree to sign your supporting deposition, please reply to this email and simply type 'I agree' and then your name. For example, 'I agree, Jane Smith.'
"By clicking on the reply button and TYPING "I AGREE" AND YOUR NAME, the supporting deposition will be considered electronically signed by you and we will place the electronic signature on the supporting deposition. By typing 'I agree' and your name you are confirming the statements in the complaint under the penalty of perjury. Replying and signing electronically will have the same force and effect as a hand written signature. Please note that the reply address should be indicated as [ADA email address]. If it isn't please change the address to that.
"You will receive a copy of the complaint, along with the electronically signed supporting deposition in a return email."
Attached to that was the original misdemeanor complaint and a copy of the unsigned supporting deposition.
CPL 100.30 (1) (d) requires the supporting deposition to be verified in the following manner
"Such instrument may bear a form notice 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."
Black's Law Dictionary defines "subscribe" as "the act of writing one's name under a written instrument; the affixing one's signature to any document, whether for the purpose of authenticating or attesting it, of adopting its terms as one's own expressions, or of binding one's self by an engagement which it contains" (https://thelawdictionary.org/letter/s/page/140/ [last accessed April 5, 2019]).
New York State Technology Law § 304 (2), allows that "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." The Appellate Term has held that a supporting deposition with an electronic signature is proper under State Technology Law § 304 (2) (People v Johnson, 31 Misc 3d 145[A], 2011 NY Slip Op 50933[U] [App Term, 2d Dept 2011]; see also People v Sanchez, 47 Misc 3d 612 [Crim Ct, Queens County 2015] [email with words "I agree," followed by name is both a signature and verification that converts a criminal complaint to an information]). In addition, the Legislature specifically listed when electronic signatures may not be used, and those exceptions do not include criminal court complaints or supporting depositions (see, State Technology Law § 307).
The defense argues, however, that because the email address used does not contain the complainant's name, that maybe somebody else received the email, spoke to the A.D.A. before the email was sent, and spoke to the A.D.A. after the email was sent. But, there is nothing in the State Technology Law that requires a person to only utilize an email address that contains their personal identifying information to execute an electronic signature. Indeed, it is the court's experience that people often do not put their names or other identifying information in their personal email addresses in order to deter identity theft, for privacy reasons, or simply because it is not available when they signed up for their email account (see, e.g., https://www.techwalla.com/articles/how-to-choose-a-name-for-an-email-address [last accessed April 5, 2019]). The defendant's remaining arguments either relate to conditions that the defense wishes to impose on the prosecution that are not required by law, rely on irrelevant psychological research, or are unpersuasive to the court.
In sum, the electronic signature on the supporting deposition is valid under the CPL and State Technology Law. Accordingly, the motion to dismiss the information as facially insufficient is denied.
IT IS SO ORDERED.
Dated:May 1, 2019
Staten Island, New York
DAVID FREY, J.C.C.
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