Criminal Court of the City of New York, Bronx County, June 20, 2023

The Bronx Defenders (David Resnick of counsel) for defendant.

Darcel D. Clark, District Attorney (Eartha Jn. Baptiste of counsel), for the People.

Defendant moves for an order: (i) deeming the People's two certificates of compliance invalid pursuant to CPL 245.50 (3); (ii) dismissing the accusatory instrument pursuant to CPL 30.30 (1) (b) and 170.30 (1) and New York State and Federal Constitutions; (iii) suppressing any identifications of defendant for which the prosecution served proper notice pursuant to CPL 710.30 (1) (b); and (iv) precluding the prosecution from introducing at trial any evidence of defendant's prior convictions or bad acts.

For the reasons set forth herein, the court grants defendant's motion for pretrial hearings pursuant to Wade/Dunaway/Rodriguez and refers any decision on preclusion of defendant's prior convictions and bad acts pursuant to Sandoval/Ventimiglia to the trial court. The court denies the additional relief requested and deems valid the People's certificate of compliance and statement of readiness filed on January 25, 2023.

Factual and Procedural History

Defendant was arrested on October 6, 2022, and given a desk appearance ticket (DAT) to appear in court on October 26, 2022. The complaint alleges that while having a verbal dispute in a motor vehicle, defendant pulled the complaining witness's hair and punched her with a closed fist. Thereafter, defendant exited the vehicle while continuing her pulling of complainant's hair and punching of her. During the alleged incident there were two minors present. As a result of these alleged acts, defendant was charged with Penal Law §§ 120.00 (1) (assault in the third degree); 260.10 (endangering the welfare of a child); and 240.26 (1) (harassment in the second degree).

On October 26, 2022, defendant appeared in court for the DAT and was arraigned on the complaint charges. At arraignment the court determined that the typed signature on the complaint attached to an email with nothing more was insufficient to convert it to an information. The matter was adjourned to December 7, 2022, for conversion and for the People to file their certificate of compliance (CoC). On December 7, 2022, the People failed to [*2]adhere to the judge's ruling. The judge who presided over defendant's arraignment reaffirmed{**80 Misc 3d at 680} his prior ruling that the email receipt from the complaining witness that contained no text and only an attachment was insufficient to convert the complaint to an information. As a result, the matter remained unconverted. The People also failed to file a CoC. The matter was adjourned to January 18, 2023, for conversion and for CoC filing. On January 15, 2023, the People filed their CoC and statement of readiness (SoR) off calendar. On January 18, 2023, on the record, the People proclaimed their belief that the complaint already was converted since it was a first-party complaint. However, the court reminded the People of its previous ruling which rendered the matter unconverted since arraignment. In response, defense counsel reserved any objections regarding the validity of the CoC until the People converted the complaint. However, defense counsel noted that the People did not turn over video footage of the incident nor the complainant's medical records. Again, the matter was adjourned for the People to convert the complaint to an information and for the filing of a CoC. The adjournment date was February 16, 2023.

On January 19, 2023, the People filed a copy of the misdemeanor complaint containing an electronic image of the complaining witness's signature. The People filed another CoC on January 25, 2023, indicating that the video footage of the incident was either lost or destroyed. On the scheduled adjournment date of February 16, 2023, the People reproclaimed their readiness for trial. In response, the defendant objected to the CoC because the People turned over the complainant's medical records belatedly. Therefore, defendant requested a motion schedule which request halted the CPL 30.30 speedy trial time.

Defendant filed a motion to invalidate the People's CoC and SoR. The motion targeted the CoCs and SoRs dated January 15, 2023, and January 25, 2023. Defendant reasoned that the People failed to convert the misdemeanor complaint to an information prior to filing the initial CoC and SoR. Defendant also noted that the People failed to provide cellular phone video footage of the incident and complainant's medical records. Defendant proffers that under CPL 245.20 (1) (j) the medical records must be provided since the complainant was taken to the hospital at the direction of law enforcement. Consequently, defendant believes that the medical records were created under the direction of law enforcement, thus obligating the People to produce those records. Moreover, the People were also obligated{**80 Misc 3d at 681} to turn over cellular phone video footage of the incident taken by one of the officers.

In opposition, the People maintain that the misdemeanor complaint was converted to an information at arraignment. The People believe that a typed signature on the complaint attached to an email containing no text from the complaining witness constitutes an electronic signature. Moreover, the People aver that the CoC and SoR filed on January 15, 2023, and January 25, 2023, were filed in good faith after exercising due diligence. The People claim that medical records are not within their custody and control since defendant could have procured those records through subpoena. Nevertheless, the People obtained the medical records and served them on defense counsel on February 14, 2023. The People do not contest that no supplemental CoC or supplemental SoR was filed and served after the medical records. The People allege that as soon as they received defense counsel's objection on January 18, 2023, regarding the video footage, they reached out to the arresting officer for the video.

The People contend that the court should deem the People ready for trial because they acted with diligence and in good faith to procure the video footage despite the footage being deleted or lost when the phone was upgraded. Also, the People request that defendant fulfill her [*3]discovery obligations and serve reciprocal discovery.

The People must be ready for trial within 90 days of the commencement of a misdemeanor criminal action, less excludable time. (People v Alvia, 78 Misc 3d 1228[A], 2023 NY Slip Op 50368[U] [Crim Ct, Bronx County 2023]; CPL 30.30 [1] [b]; see CPL 1.20 [16]-[17].) When defendant is issued a DAT, the criminal action "must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to [a] ticket." (People v Stirrup, 91 NY2d 434, 438 [1998] [emphasis omitted]; CPL 30.30 [5] [b].) The speedy trial clock does not begin to run if the defendant fails to appear in court on the DAT date regardless of the reason. (People v Parris, 79 NY2d 69 [1992] [speedy trial clock did not begin to run where defendant failed to appear in court due to his incarceration].) Even when a defendant appears in court on an unrelated matter, it will not constitute an appearance in response to a DAT. (People v Fortty, 78 Misc 3d 1229[A], 2023 NY Slip Op 50379[U]{**80 Misc 3d at 682} [Crim Ct, Bronx County 2023], citing People v Weaver, 166 Misc 2d 488, 491-492 [Crim Ct, Bronx County 1995].)

Moreover, the People are deemed ready for trial once they have filed a proper CoC and declared their readiness. (CPL 245.50 [3]; People v Erby, 68 Misc 3d 625, 630 [Sup Ct, Bronx County 2020].) A CoC filed by the People may only be deemed valid if filed after "exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery." (CPL 245.50 [1].) However, the statute does not require absolute compliance and discovery disclosures prior to filing a CoC. Even the "absence of certain discovery items from the disclosure memorialized in the original CoC (such as the scratch complaint report, an updated disclosure letter pertaining to a detective, and the resume of an expert) does not vitiate the original certificate." (People v Alvia, 78 Misc 3d 1228[A], 2023 NY Slip Op 50368[U], *2 [Crim Ct, Bronx County 2023], citing People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U] [Sup Ct, Kings County 2020].)

Simultaneously with the filing of a valid CoC, the People must announce their readiness for trial after "bring[ing] the case to a point where it may be tried." (People v England, 84 NY2d 1, 4 [1994].) "[T]he statement 'ready for trial' contemplates more than merely mouthing those words." (Id. at 5.) "To be effective, a statement of readiness must be communicated on the record at a time when the People are truly ready to proceed." (People v Carter, 91 NY2d 795, 798 [1998].) Furthermore, the People can declare their readiness for trial either by making a statement of readiness on the record or by "written notice of readiness sent . . . to both defense counsel and the appropriate court clerk, to be placed in the original record." (People v Kendzia, 64 NY2d 331, 337 [1985].) The statute, moreover, envisages present readiness not a prognostication of future readiness. (Id.)

Once the People file a CoC and SoR, defendant must notify or alert the People of any potential defects or deficiencies in the certificate as soon as practicable. (CPL 245.50 [4] [b].) There is no bright-line definition of the word "practicable." (People v Lanfair, 78 Misc 3d 371, 374 [Cohoes City Ct 2023].) Hence, it is within the court's province to determine whether defendant acted reasonably and promptly in objecting to the CoC on a case-by-case basis by considering{**80 Misc 3d at 683}

"the length of the delay; the underlying charges; the nature of the discovery violation; whether the violation is obvious, and susceptible to easy detection, or obscure, and more likely to escape notice; whether there is evidence that the defense knew or should have known of the error; the volume of discovery in the case; and the applicability of any statutory [*4]deadlines." (Id. at 375.)

When defects or deficiencies are not resolved after defendant notifies the People as a soon as practicable, any challenges to the CoC must be raised by written motion. (CPL 245.50 [4] [a].) Moreover, defendant cannot sit idly and "wait while the speedy trial clock ticks loudly in the background." (People v Ramirez, 75 Misc 3d 931, 935 [Crim Ct, Kings County 2022] [internal quotation marks omitted].) Consequently, should defense counsel "lie in wait" until the People's CPL 30.30 time has expired, they run the risk of not having the information necessary for hearings and trial. (Id.; People v Ferrer, 72 Misc 3d 1212[A], 2021 NY Slip Op 50706[U] [Crim Ct, Bronx County 2021].)

Electronic Signature to Subscribe Criminal Complaint

The People's credence that the complaint was converted to an information at arraignment is unavailing. The misdemeanor complaint submitted on October 26, 2022, contained the complainant's typed name in regular font along with the date and time on the signature line. The arraignment court rejected the People's position that the complainant's typewritten name converted the complaint to an information. Thereafter, the matter was adjourned two times for the People to remedy the defect and convert the complaint to the information.

A misdemeanor complaint "must be subscribed and verified by a person known as the 'complainant' " and contain both an accusatory and factual part. (CPL 100.15 [1].) It must be verified in writing by a person having personal knowledge and charge one or more persons with committing misdemeanor offenses only. (CPL 100.15; People v Fortty, 78 Misc 3d 1229[A], 2023 NY Slip Op 50379[U] [Crim Ct, Bronx County 2023], citing People v Williams, 63 Misc 3d 765 [Crim Ct, NY County 2019].) "[F]ailure to properly verify an accusatory instrument is a jurisdictionally fatal defect." (People v Fortty, 78 Misc 3d 1229[A], 2023 NY Slip Op 50379[U], *5 [Crim Ct, Bronx County 2023], citing People v Richard, 33 Misc 3d 855, 859 [Crim Ct, Kings County 2011].) The misdemeanor complaint may be verified{**80 Misc 3d at 684} through five different methods including the instrument containing a notice that "false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law" and being subscribed by the deponent. (CPL 100.30 [1] [d].) "Subscribed means . . . to sign one's name at the end of a document." (People v Sanchez, 47 Misc 3d 612, 614 [Crim Ct, Queens County 2015].)

Moreover, the factual part of the misdemeanor complaint may be based on hearsay. (CPL 100.15 [3].) However, the People must replace a misdemeanor complaint with an information for defendant to be arraigned. (CPL 170.65 [1].) An information is an accusatory instrument which contains nonhearsay allegations that "provide reasonable cause to believe that the defendant committed the offense charged." (CPL 100.40 [1] [b], [c].) "A misdemeanor complaint may be converted into an information through the filing of one or more supporting depositions." (People v Pachesa, 50 Misc 3d 238, 241 [Crim Ct, NY County 2015]; CPL 170.65 [1].)

A signature can be "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." (See General Construction Law § 46.) An electronic signature has the same "validity and effect as the use of a signature affixed by hand." (People v Adams, 65 Misc 3d 289, 294 [Crim Ct, NY County 2019].) Moreover, the New York Legislature and courts support the use of electronic signatures. (People v Sanchez, 47 Misc 3d 612, 616 [Crim Ct, Queens County 2015] [the legislature enacted policies to "promote the use of electronic signatures to facilitate . . . business" (internal quotation marks omitted)].)

Effective August 1999 was the New York State Electronic Signatures and Records Act (ESRA) which is New York State Technology Law, article 3. (State Technology Law §§ 301-309.) However, [*5]in 2002 the ESRA was amended to be consistent with the federal E-Sign law. (Office of Information Technology Services Guideline No. NYS-G04-001 [updated May 4, 2021].) "The definition of 'electronic signature' in ESRA § 302(3) conforms to the definition found in federal law (the 'E-Sign' Act)." (Id. at 2.) "[I]n 2002 when the legislature amended the ESRA provision defining the requirements for an 'electronic signature', it explicitly removed the requirement that an electronic signature identify the person signing." (The Prudential Ins. Co. of Am. v Dukoff, 674 F Supp 2d 401, 411 [ED NY 2009] [emphasis omitted].){**80 Misc 3d at 685}

ESRA directs that "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." (State Technology Law § 304 [2] [emphasis added].) The New York State Information Technology Services guideline emphasizes that ESRA's purpose is to simplify e-commerce and e-government by "giving electronic signatures and records (e-signatures and e-records) the same force and effect as signatures and records produced by non-electronic means." (Guideline No. NYS-G04-001 at 2.) Likewise, an electronic signature is defined as an "electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with intent to sign the record." (State Technology Law § 302 [3].) Consequently, the definition of electronic signature serves ESRA's purpose by providing several options for signatories. Moreover, the signer's intent can be demonstrated several ways including "[m]ak[ing] it impossible for an e-signature to be applied to a document without the signer having been informed that a signature is being applied." (Guideline No. NYS-G04-001 at 5.)

Simultaneously, the legislative policy promoting the use of electronic signatures has extended to the court system. In the civil law context, courts have accepted electronic signatures where "the signatory has electronically affixed the digital image of his or her signature to the document." (22 NYCRR 202.5-b [e] [1] [ii].) Similarly, the criminal courts have upheld the validity of electronically signed accusatory instruments. (See People v Johnson, 31 Misc 3d 145[A], 2011 NY Slip Op 50933[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011] [officer's electronic signature to verify supporting depositions did not violate CPL 100.20]; People v Almodovar, 63 Misc 3d 994 [Crim Ct, Richmond County 2019] [electronic signature on supporting deposition was valid]; People v White, 25 Misc 3d 1209[A], 2009 NY Slip Op 52011[U] [Otsego County Ct 2009] [simplified traffic information was facially sufficient when it contained an officer's electronic signature].)

However, when the court has upheld the validity of a signature on an accusatory instrument or supporting deposition, additional proof that the complainant was the signatory was submitted or required. The additional proof includes an "affidavit from the People pertaining to the email exchange" to show "the complainant's intent to sign the supporting deposition, {**80 Misc 3d at 686}as well as verify its contents under the penalties of perjury." (See People v Adams, 65 Misc 3d 289, 295 [Crim Ct, NY County 2019].) The validity of the electronic signature in an email from the People showed that the complainant was appraised of the consequences of confirming the statements under penalty of perjury and the complainant replied with "I agree" with her name included within the email. (See People v Sanchez, 47 Misc 3d 612, 615 [Crim Ct, Queens County 2015].)

Consequently, the email submitted by the People that contained no text and only an attachment was insufficient to convert the complaint to an information. The email did not contain any indication of the complainant's intent to sign. However, the People did resubmit a complaint on January 19, 2023, containing an electronic cursive signature of the complainant.

Accordingly, the misdemeanor complaint submitted on January 19, 2023, became an [*6]information once a digital image of the complainant's signature was affixed to the document.

Complainant's Medical Records

Defendant requests that the court invalidate the People's CoC and dismiss the matter due to the People's belated disclosure of the complainant's medical records. The court finds that defendant's demand for medical records of the complainant from St. Barnabas Hospital is inconsistent with the statutory requirements of CPL 245.20.

The People's automatic discovery obligations extend to records only in "possession, custody or control of the prosecution or persons under the prosecution's directions or control." (CPL 245.20 [1].) To fulfill their discovery obligations, the People are not required to "obtain by subpoena duces tecum material or information which the defendant may thereby obtain." (CPL 245.20 [2].)

Additionally, New York courts are reluctant to expand the People's discovery obligations. (See People v Washington, 196 AD2d 346 [2d Dept 1994] [Office of the Chief Medical Examiner not within control of the People].)

"[T]he courts of this State have consistently refused to expand the scope of the Rosario rule (see, e.g., People v Tissois, 72 NY2d 75 [statements made by a prosecution witness to a social worker for a child welfare agency were not in the People's possession or control and were not Rosario material]; People v Fishman, 72 NY2d 884 [untranscribed plea minutes{**80 Misc 3d at 687} of prosecution witness were not Rosario material]; People v Reedy, [70 NY2d 826] [victim's personal written version of crime was not in the People's possession or control and was not Rosario material]; People v Flynn, 79 NY2d 879 [accident report filed by complainant with State Department of Motor Vehicles was not within the People's possession or control and was not Rosario material]; People v Berkley, 157 AD2d 463 [statement by a rape victim to the Victim Services Agency was not within the People's possession or control and was not Rosario material]; People v Letizia, 159 AD2d 1010 [victim statement to the Crime Victims Compensation Board was not in the People's possession or control and was not Rosario material]; Matter of Dwayne H., 173 AD2d 466 [operations report created by an employee of the Board of Education was not within the constructive possession or control of the presentment agency and was not Rosario material])." (Id. at 349-350 [footnotes omitted].)

Likewise, hospitals and hospital records are not within the possession, custody, or control of the People. (People v Arroyo, 78 Misc 3d 1239[A], 2023 NY Slip Op 50482[U], *1, *9 [Crim Ct, Kings County 2023] ["neither NYC Health and Hospitals nor the ACS constitute a law enforcement or other agency under the prosecution's control"].) In addition, "EMS personnel do not act in a law enforcement capacity, and their contact information as well as any medical records they maintain, are therefore, not under the control of the People." (People v Carter, 76 Misc 3d 1206[A], 2022 NY Slip Op 50837[U], *5 [Crim Ct, Kings County 2022].) Likewise, in People v Hall, the People were found to have exercised due diligence and good faith when turning over the complainant's medical records as they were not in possession or control of the complainant's records when the initial CoC was filed. (76 Misc 3d 804 [Crim Ct, Bronx County 2022].)

Accordingly, the People's CoC cannot be deemed invalid for failing to turn over medical records.[*7]

Deleted or Lost Cellular Phone Video Footage

The People acted in good faith and with due diligence to preserve the cellular phone video footage taken by one of the officer's department cellular phones. "A court may deem the prosecution ready for trial pursuant to section 30.30 . . . where information that might be considered discoverable . . . cannot {**80 Misc 3d at 688}be disclosed because it has been lost, destroyed, or otherwise unavailable . . . despite diligent and good faith efforts, reasonable under the circumstances." (CPL 245.50 [3].) Defense counsel first raised the issue regarding the cellular phone video footage in court on January 18, 2023. Thereafter, the People contacted the arresting officer requesting the video footage and were informed that the video was lost or destroyed after an update was conducted on the phone.

On January 25, 2023, the People filed their CoC indicating that video cellular phone footage of the incident was either lost or destroyed. The People acted in good faith and with diligence by promptly contacting the arresting officer after being notified by defense counsel of the missing video. (People v Cano, 71 Misc 3d 728 [Sup Ct, Queens County 2020] [People's inability to disclose arresting officer's draft of criminal complaint that was destroyed did not vitiate their CoC]; cf. People v Georgiopoulos, 71 Misc 3d 1215[A], 2021 NY Slip Op 50380[U] [Sup Ct, Queens County 2021] [People did not act diligently or in good faith because they failed to provide an explanation for the loss or destruction of the dashboard camera footage].)

Accordingly, the court holds that the People's CoC and SoR dated January 25, 2023, are valid.

Suppression of Evidence and Statements

A court can either determine a motion for suppression summarily or grant a hearing to make the necessary findings of fact. (People v Mendoza, 82 NY2d 415 [1993].) The court finds that there are sufficient grounds to order a Wade/Dunaway/Rodriguez hearing to resolve any issues related to the suggestiveness of the defendant's identification.

Preclusion of Defendant's Prior Bad Acts

As to defendant's request for preclusion of defendant's prior convictions or bad acts pursuant to Sandoval/Ventimiglia, defendant's request is referred to the trial court.

The court orders Wade/Dunaway/Rodriguez hearings and refers any decision on the preclusion of defendant's prior convictions and bad acts to the trial court. The court also holds that the People's CoC and SoR filed on January 25, 2023, are deemed valid.