Criminal Court of the City of New York, New York County, March 13, 2019

New York County Defender Services, New York City (Renate Lunn of counsel), for defendant.

Cyrus R. Vance, Jr., District Attorney, New York City (Andrea Osgood of counsel), for plaintiff.

Defendant is charged with one count of petit larceny (Penal Law § 155.25). In this motion, he now moves to controvert the conversion of the accusatory instrument, on the ground that the supporting deposition bears an electronic signature. The People oppose the motion. For the reasons below, defendant's motion is denied.

The accusatory instrument alleges, in relevant part, that on or about November 2, 2018, at about 6:06 p.m., inside the Sephora store at 557 Broadway in the County and State of New York, Lyanne Nieves, a loss prevention agent, observed defendant removing approximately five Chanel fragrances from the display rack, placing the items in a bag, bypassing the store cash registers, and leaving the store without paying for those items and without permission or authority to do so. Ms. Nieves allegedly informed Detective Fabrian Pelaez about defendant's conduct, and Detective Pelaez then allegedly told Detective Kolin Kaufmann, the deponent, about the incident.

On November 16, 2018, defendant was arrested, charged, and arraigned the next day. The court (Drager, J.) set bail and adjourned the case to Part C on November 21, 2018, for the People to file two supporting depositions.

On November 21, 2018, the People filed a supporting deposition from Ms. Nieves. The supporting deposition states, "I, Lyanne Nieves . . . being duly sworn, depose and say: that I have read the Accusatory Instrument filed in the above-entitled action and attached hereto and that the facts therein stated to be on information furnished by me are true upon my personal knowledge." The supporting deposition appears to be signed, and above the signature appears the notice, "False statements made herein are punishable pursuant to section 210.45 of the penal law, and as other crimes." Below the signature line appears Ms. Nieves's typed first and last name, followed by the date "(Nov 19, 2018)."

The People conceded that defendant was entitled to release from custody pursuant to CPL 170.70. The court (Moses, J.) released defendant on his own recognizance and adjourned the case to January 10, 2019, for the People to file one more supporting deposition.

On January 10, 2019, the People filed a supporting deposition from Detective Pelaez. [*2]The court (Weston, J.) deemed the{**63 Misc 3d at 767} misdemeanor complaint an information, set a motion schedule, and adjourned the case to February 4, 2019, for response and decision on defendant's motion. Defendant filed this omnibus motion on January 16, 2019, seeking to controvert conversion of the misdemeanor complaint to an information, seeking suppression hearings, and other relief.

On February 4, 2019, the People consented to hearings on the suppression issues and requested additional time to respond to the issue of facial sufficiency. The court (Tsai, J.) granted the People's request for more time, instructed them to file their response off calendar by February 14, 2019, and adjourned the case to February 22, 2019, for decision. Because the People filed and served their response on the adjourn date, the court (Marcus, J.) adjourned the case to March 14, 2019, again for decision.

Motion to Controvert Conversion

A misdemeanor complaint is deemed to have been converted to an information when it is supplemented by a supporting deposition and such instruments, taken together, satisfy the requirements for a valid information (CPL 170.65 [1]). Pursuant to CPL 100.40 (1), an information is sufficient on its face when, among other things: (1) the allegations provide reasonable cause to believe that the defendant committed the offense charged; and (2) the nonhearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof.

The requirement that a misdemeanor information set forth nonhearsay allegations is known as "the prima facie case requirement" (People v Kalin, 12 NY3d 225, 228-229 [2009], citing People v Henderson, 92 NY2d 677, 679 [1999], and CPL 100.40 [1] [c]). The defendant's hearsay challenge to a count of the information should be raised by way of a formal motion to dismiss that count (People v Brooks, 190 Misc 2d 247, 249 [App Term, 1st Dept 2001]).

"The prima facie standard may be accomplished by the People filing a supporting deposition" (People v Brothers, 58 Misc 3d 664, 666 [Crim Ct, Kings County 2017]). An information that fails to allege a complete element of the charged offense is jurisdictionally defective (Kalin, 12 NY3d at 228-229). Here, it is undisputed that the accusatory instrument required two supporting depositions for conversion: one from Nieves,{**63 Misc 3d at 768} and another from Detective Pelaez. Defendant does not challenge the validity of Pelaez's supporting deposition.

As to Nieves's supporting deposition, CPL 100.20 requires a supporting deposition to be "subscribed and verified." CPL 100.30 (1) sets forth five different ways in which a supporting deposition may be verified, including where the supporting deposition bears "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 is subscribed by the deponent (CPL 100.30 [1] [d]).^[FN1] Here, counsel does not dispute that the requisite form notice appears on Nieves's supporting deposition, above her signature.

Nieves's signature appears to be in cursive writing, as if she had signed the supporting [*3]deposition directly. However, counsel contends that Nieves's supporting deposition was not properly verified because it "bears an electronic signature acquired via email" (Lunn affirmation at 17). The People do not dispute counsel's contention that Nieves's handwritten signature was placed upon the supporting deposition through some electronic means. Thus, the narrow issue presented is whether a supporting deposition can be validly subscribed through electronic means.

Counsel contends that the legislature did not authorize an "electronic signature" as a method of verification because, in 2010 and again in 2012, the Advisory Committee to the Chief Administrative Judge of the Courts of the State of New York (Advisory Committee) proposed that the legislature amend the Electronic Signatures and Records Act (ESRA) (State Technology Law § 301 et seq.) to make the ESRA expressly applicable to criminal proceedings, and the legislature has not done so (Lunn affirmation at 19, citing Rep of Advisory Comm on Local Cts to Chief Admin Judge of Cts of St of NY at 12 [Jan. 2010], https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2010-LocalCourts-ADV-Report.pdf [last accessed Mar. 13, 2019], cached at http://www.nycourts.gov/reporter/webdocs/2010LocalCourtsADVReport.pdf). Counsel also contends that a supporting deposition signed by an "electronic signature" is not validly subscribed because the deponent would not be subject to prosecution for perjury, citing People v Feola (40 AD3d 874 [2d Dept 2007]) (Lunn affirmation at 22).{**63 Misc 3d at 769}

Finally, to the extent that signature was obtained via email, counsel argues

"there is no indication of how the prosecutor verified that this email account was registered to the complainant, where the computer or device from which the email account was accessed was located, or who was using the computer or email address at the time the email was received and signed" (id. at 21).

Counsel stresses, "[e]ven if Ms. Nieves did open the email, there is no way to verify her state of mind at the time she opened it and provided an electronic signature" (id. at 25).

In opposition, the People counter that verification of a supporting deposition by an electronic signature is proper and acceptable, citing several lower court cases (Osgood affirmation ¶ 3).

As the People point out, other courts have accepted "electronic signatures" upon supporting depositions as valid (Brothers, 58 Misc 3d 664; People v Rodriguez, 50 Misc 3d 1223[A], 2016 NY Slip Op 50248[U] [Crim Ct, Queens County 2016]; People v Robertson, 50 Misc 3d 1224[A], 2016 NY Slip Op 50262[U] [Crim Ct, Kings County 2016]; People v Welcome, 50 Misc 3d 1223[A], 2015 NY Slip Op 51977[U] [Crim Ct, Queens County 2015] [collecting cases]). These courts reason that "[t]o subscribe a document means merely to sign it" (Rodriguez, 2016 NY Slip Op 50248[U], *3, citing James v Patten, 6 NY 9 [1851]), and that an electronic signature is valid because a signature can be " 'any memorandum, mark or sign, written, printed, stamped, . . . or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing' " (Brothers, 58 Misc 3d at 666, quoting General Construction Law § 46).

This court agrees. A person may validly subscribe a supporting deposition by placing one's signature upon it by electronic means, so long as the signature was placed with the intent to sign the supporting deposition (see e.g. People v Sanchez, 47 Misc 3d 612 [Crim Ct, Queens County 2015]). "The key is that the endorser intended to leave his mark upon a document, thereby taking some level of responsibility for its contents" (People v Jackson, 17 Misc 3d 788, 791 [Crim Ct, NY County 2007] [a mark in the shape of an oval at the bottom of supporting deposition was valid]).

Counsel's reliance upon the legislature's inaction with respect to the recommendations of [*4]the Advisory Committee to{**63 Misc 3d at 770} amend the ESRA is misplaced. In the Advisory Committee's view, the standard of admissibility of electronic signatures (i.e., "in any court where the provisions of the CPLR are applicable") was inadequate to ensure that electronic signatures on the electronic version of simplified informations and supporting depositions would be placed "in a manner that complies with due process," citing People v Rose (11 Misc 3d 200, 208 [Rochester City Ct 2005]) (Rep of Advisory Comm on Local Cts to Chief Admin Judge of Cts of St of NY at 12 [Jan. 2010], https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2010-LocalCourts-ADV-Report.pdf [last accessed Mar. 13, 2019], cached at http://www.nycourts.gov/reporter/webdocs/2010LocalCourtsADVReport.pdf; Rep of Advisory Comm on Local Cts to Chief Admin Judge of Cts of St of NY at 37 [Jan. 2012], https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2012-LocalCourts-ADV-Report.pdf [last accessed Mar. 13, 2019], cached at http://www.nycourts.gov/reporter/webdocs/2012LocalCourtsADVReport.pdf). The concerns that were raised in People v Rose, which involved law enforcement's use of "e-tickets," i.e., computer-generated simplified traffic informations, are not present here.^[FN2]

Contrary to counsel's contention, People v Feola (40 AD3d 874 [2007]) does not dictate a contrary result. There, a signed affidavit purportedly bearing the defendant's signature was sent back to the Assistant District Attorney by facsimile under a cover sheet bearing the defendant's name (id. at 875). The judgment convicting defendant, after a jury trial, of making a punishable false written statement was reversed, and the indictment was dismissed. The Appellate Division ruled that the evidence was legally insufficient to sustain the conviction beyond a reasonable doubt, because "the People inexplicably failed to proffer any direct evidence that the affidavit bore the actual signature of the defendant" (id. at 875). Feola did not involve an electronic signature.

Nothing in Feola suggests that a person who signed a supporting deposition by an electronic signature could not be convicted for making false statements contained therein, if the proof were legally sufficient. Moreover, as discussed above,{**63 Misc 3d at 771} verification of a supporting deposition using the form notice pursuant to CPL 100.30 (1) (d) does not require that it be sworn to before a notary public or some other official authorized to take an oath (Charvat, 8 Misc 3d at 15).

Counsel's remaining arguments are unavailing. There is no reason to believe that Nieves did not intend to place her electronic signature upon the supporting deposition (see Jackson, 17 Misc 3d at 791). Defendant submits no evidence to the contrary (see People v Honshj, 176 Misc 2d 170, 174 [Crim Ct, Queens County 1998] [in the absence of a clear indication from the complainant that he or she has not signed the supporting deposition, the supporting deposition was deemed sufficient to convert the complaint]).

Because Nieves's supporting deposition was validly subscribed, and the People also filed the supporting deposition of Detective Pelaez, which is not challenged, defendant's motion to controvert the conversion of the accusatory instrument to an information is therefore denied.

Accordingly, it is hereby ordered that defendant's motion is denied.