Opinion
12-12-2017
The PEOPLE of the State of New York, v. Ellis BROTHERS, Defendant.
Jeremy E. W. Fredericksen, Legal Aid Society, 111 Livingston Street, Brooklyn, NY 11201, attorney for defendant Ellis Brothers Eric Gonzalez, Acting District Attorney, Kings County, by Kelsey Massa, Assistant District Attorney, Brooklyn, of Counsel for the People
Jeremy E. W. Fredericksen, Legal Aid Society, 111 Livingston Street, Brooklyn, NY 11201, attorney for defendant Ellis Brothers
Eric Gonzalez, Acting District Attorney, Kings County, by Kelsey Massa, Assistant District Attorney, Brooklyn, of Counsel for the People
Rosemarie Montalbano, J.By notice of motion defendant moves to dismiss the accusatory instrument as facially insufficient pursuant to Criminal Procedure Law ("CPL") 100.40 and 100.30. The People oppose. For the following reasons, the motion is DENIED.
The point at issue in defendant's motion is whether a supporting deposition adheres to subscription and verification requirements of CPL 100.20 and 100.30, when the signature and sworn statement is generated electronically. Defendant contends that a supporting deposition, subscribed and verified through a combination of electronic mail and telephone conversations, is not authorized by the legislature. The People, citing case law and the Electronic Signatures and Records Act, Article III of State Technology Law, contend that the supporting deposition is properly subscribed and verified and the accusatory instrument is facially sufficient.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
On August 25, 2017, the People commenced this criminal proceeding with a misdemeanor complaint. The complaint was sworn to and signed by Johanna Carmona ("Ms. Carmona"), legal assistant for the District Attorney. At the time of defendant's arraignment, the prosecution served and filed: 1. an email conversation between Ms. Carmona and Ms. Stone, 2. an affirmation by Ms. Carmona, and 3. the supporting deposition of Ms. Stone. The People announced ready. Defendant objected to the People's announcement of readiness arguing that the electronically generated supporting deposition was inadmissible because it did not establish Ms. Stone's subscription and verification of the facts in the accusatory instrument. Over defendant's objection the court deemed the complaint converted. Defendant now renews his argument that the accusatory instrument is facially insufficient.
DISCUSSION
Under the Criminal Procedure Law ("CPL") for the prosecution to proceed to trial, it must be with a legally sufficient accusatory instrument ( CPL 100.15 [3 ]; 100.40). CPL 100.40 provides that an information, or a count thereof, is sufficient on its face when: [a] It substantially conforms to the requirements prescribed in section 100.15 ; and [b] The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and [c] Non-hearsay allegations of the factual part of the informationand/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof. This last subsection is referred to as the "prima facie case" standard for informations ( People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ). The prima facie standard may be accomplished by the People filing a supporting deposition.
A supporting deposition is a written instrument accompanying or filed in connection with an information. CPL 100.20 requires, amongst other things, that the supporting deposition be "subscribed and verified" ( CPL 100.20 ). "Subscribed" as it is used in the statute means to sign one's name at the end of a document ( James v. M and S Patten, 6 N.Y. 9, 12 [1851] ). A signature is: "any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing" ( General Construction Law § 46 ; People v. Sanchez, 47 Misc. 3d 612, 3 N.Y.S.3d 886 [Crim.Ct., Queens County 2015] ; People v. Welcome, 50 Misc 3d 1223(A), 2015 WL 10382566 [Crim.Ct., Queens County 2015] ; People v. Robertson, 50 Misc 3d 1224(A), 2016 WL 867532 [Crim. Ct., Kings County 2016] ; People v. Jackson, 17 Misc. 3d 788, 844 N.Y.S.2d 841 [Crim.Ct., N.Y. County 2007] ). "Verification" of the supporting deposition as it is used in the statute requires the signature be accompanied by a form notice states "false statements made therein are punishable as a class A misdemeanor pursuant to Penal Law 210.45" ( CPL 100.30 ).
The People contend that on August 24, 2017, and prior to defendant's arraignment, the prosecution was in contact with the victim through both electronic mail and telephone conversations. By email, Ms. Carmona provided Ms. Stone the language of the misdemeanor complaint and directed to read the entire complaint as well as the supporting deposition. The supporting deposition attached in the District attorney's email to Ms. Stone states: "I, Audrey Stone, have read the accusatory instrument filed in this action. The facts stated in that instrument to be on information furnished by me are true upon my personal knowledge." Immediately following that is the form notice: "False statements made in this document are punishable as a class A misdemeanor pursuant to section 210.45 of the Penal Law." The email also states that by Ms. Stone replying as instructed, Ms. Stone's name would then appear on the signature line of the deposition. On August 24, 2017, Ms. Stone sent a reply email to Ms. Carmona stating: "I Audrey Stone Agree." In executing the misdemeanor complaint and supporting deposition, the People assert that they attached the complaint and the supporting deposition to an email and sent the email to Ms. Stone.
Electronic signatures are governed by the Electronic Signatures and Records Act ("ESRA"), in Article III of the State Technology Law [STL]. According to STL § 306 "in any legal proceeding where the provisions of the civil practice law and rules are applicable, an electronic record or electronic signature may be admitted into evidence pursuant to the provisions of article forty-five of the civil practice law and rules including but not limited to section four thousand thirty-nine of such law and rules." Thereby, making electronic records admissible into evidence. ESRA also governs the use of electronic records and subsection [2] provides that "an electronic record shall have the same force and effect as those records not produced by electronic means" (STL § 305). STL § 304 [2] provides 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 signature affixed by hand." ESRA defines an electric signature as being "... an electronic sound, symbol, or, process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record" (STL § 302 [3] ).The email to the victim, states that by replying to the District attorney's emails, as instructed, Ms. Stone would be confirming the factual portion of the accusatory which she provided under penalty of perjury and that her electronic signature would have the same force and effect as a handwritten signature. The email also included the form notice pursuant to CPL 100.30 [1 ] [d]. Lastly, Ms. Stone was advised "to reply only if she still agreed to sign the supporting deposition electronically." Ms. Stone replied accordingly and the People received Ms. Stone's reply email. Ms. Carmona then contacted Ms. Stone via telephone and confirmed that Ms. Stone was the person who sent the reply email (People's Affirmation in Opposition, p. 13–14).
Vital to the subscription requirement is that the signature reflect the intent of the person endorsing ( Sanchez, 47 Misc. 3d 612, 3 N.Y.S.3d 886 ; Welcome, 50 Misc. 3d 1223(A) ; People v. Rodriguez, 50 Misc. 3d 1223(A), 2016 WL 803026 [Crim. Ct., Queens County 2016] ). By replying to the District Attorney's email as she did, Ms. Stone demonstrated her intent to adopt the factual portion of the accusatory instrument as her own. Furthermore, the prosecution apprised of the effect of her replying as she did and therefore the verification element of CPL 100.20 was met. Accordingly, the supporting deposition is subscribed and verified.
Defendant's contention that this electronic signature cannot form the basis of a perjury prosecution is unpersuasive. Defendant's relies on People v. Feola, 40 A.D.3d 874, 836 N.Y.S.2d 270 [2d Dept.2007] ; however, this reliance is misplaced. Feola did not address the issue of an electronic subscription as the source of a perjury prosecution.
For the aforementioned reasons, the accusatory instrument is facially sufficient. Defendant's motion to dismiss is DENIED.
CONCLUSION
The foregoing constitutes the decision of the Court.