Criminal Court of the City of New York, Bronx County, October 5, 2023

Darcel D. Clark, District Attorney (Jillian Kennedy of counsel), for the People.

The Legal Aid Society (Michael Raskin of counsel) for defendant.

The defendant is charged with one count of forcible touching, pursuant to Penal Law § 130.52 (1), one count of sexual abuse in the third degree, pursuant to Penal Law § 130.55, and one count of harassment in the second degree, pursuant to Penal Law § 240.26 (1). The People moved to convert the complaint to an information with a redacted supporting deposition. The defendant argued that the redacted supporting deposition, which removes the complaining witness' name and signature, is insufficient and improper to convert the accusatory instrument to an information. The court rejects the defendant's arguments and converts the supporting deposition after an in camera review.

The criminal court complaint alleges that on or about July 15, 2023, at approximately 12:00 p.m., in the County of the Bronx, the defendant grabbed the complaining witness' buttocks without her permission or authority. The complaint, which is signed by NYPD Detective Arlyn Zapata, does not state the name of the complaining witness. Instead, it refers to the complaining witness as "A PERSON KNOWN TO THE NEW YORK POLICE DEPARTMENT."

The defendant was arrested on August 7, 2023, and arraigned on August 9, 2023. At the defendant's arraignment, the People filed and served a supporting deposition with the complaining witness' name and signature redacted.^[FN1] The People asked the court to convert the complaint to an information.{**81 Misc 3d at 377} Defense counsel objected on the basis that the name and signature of the complaining witness should not be redacted on the supporting deposition. In lieu of filing the unredacted version, the People proposed that the court conduct an in camera inspection where both the court and defense counsel could review the unredacted supporting deposition on the condition that defense counsel not share the complaining witness' name with the defendant. [*2]The court denied the People's application without prejudice and adjourned the matter to Part DVM for conversion and discovery compliance.

On September 11, 2023, the parties appeared in Part DVM and the People renewed their application to deem the complaint an information using the redacted supporting deposition.^[FN2] Defense counsel again objected, and the People again proposed that the court conduct an in camera inspection, where both the court and defense counsel could review the unredacted supporting deposition. The court directed the parties to brief the issue of whether a supporting deposition which redacts the name of the complaining witness is sufficient to convert an accusatory instrument, and the matter was adjourned for decision.^[FN3]

A misdemeanor complaint, which may contain allegations based on hearsay, must be replaced by an information or "converted" to an information. (People v Slade, 37 NY3d 127 [2021].) Conversion is accomplished by filing and serving a supporting deposition which when read in conjunction with the complaint, alleges nonhearsay allegations sufficient to constitute an information. (CPL 100.15 [3]; 170.65 [1].)

Pursuant to CPL 100.20, for a supporting deposition to be deemed valid it must be{**81 Misc 3d at 378}

"a written instrument . . . filed in connection with an information . . . [or] a misdemeanor complaint . . . subscribed and verified by a person . . . containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein."

The People maintain that the complaining witness is a victim of a sex offense and does not wish to have her identity disclosed to the defendant given the early stages of this proceeding. The People aver that a supporting deposition with a redacted complaining witness' name and signature is sufficient for the purposes of conversion. In support of this position, the People cite to People v Wilson (76 Misc 3d 877 [Crim Ct, NY County 2022]). The court in Wilson held that a criminal complaint was appropriately converted to an information based on a supporting deposition by the complaining witness that redacted her name and signature. The court in Wilson reasoned that "requiring th[e] complaining witness to disclose her identity via [a] supporting deposition at the outset of the case would vitiate the explicit protections the legislature has afforded sexual assault victims: that their identities need not be disclosed within the initial [*3]disclosure period." (Id. at 881.)

Here, as in Wilson, the People do not contend that the defendant is never entitled to learn the complaining witness' name, but instead argue that they are not required to disclose this information at the early stages of this proceeding. Further, the People argue that courts have routinely upheld conversion of an accusatory instrument based on supporting depositions that do not identify the names of undercover police officers. (See People v Guillermo, 67 Misc 3d 133[A], 2020 NY Slip Op 50484[U] [App Term, 1st Dept 2020]; see also Wilson, 76 Misc 3d 877.) Lastly, the People argue that CPL 245.20 (1) (c) expressly states that information relating to the identity of a victim of a sex offense under article 130 of the Penal Law may be withheld and redacted from discovery materials without the need for a motion, provided that the People notify the defendant in writing that such information has not been disclosed.

The defendant argues that a supporting deposition that redacts the name and signature of a complaining witness is insufficient to convert the accusatory instrument to an information{**81 Misc 3d at 379} and violates his Sixth Amendment confrontation rights. The defendant argues that undercover officers are in their own special category and that the People wrongly analogized the redaction of a civilian complaining witness' name with that of an undercover police officer. The defendant maintains that a defendant never learns the actual names of undercover witnesses and as such, this analogy is misplaced. The defendant further argues that the People's reliance on CPL 245.20 (1) (c) is conflated and irrelevant because CPL article 245 governs the People's disclosure obligations, not the conversion of accusatory instruments. In addition, defense counsel argues that the defendant will suffer prejudice from the withholding of the complainant's name at this juncture of the proceeding, reasoning that if he were able to disclose the name of the complainant to the defendant, the defendant might be able to identify her as someone he knows and may have information about her that could be helpful to his defense. Defense counsel maintains that the defendant is in jail, unable to pay bail, with no access to the Internet and no means to pursue the complainant. Finally, defense counsel argues that the People's application to convert the accusatory instrument to an information using the redacted supporting deposition runs afoul of the law of the case because this application was initially denied by the court at the defendant's arraignment.^[FN4]

As an initial matter, the defendant's argument that converting the accusatory instrument with the redacted deposition would be a violation of the law of the case is without merit. The doctrine of law of the case provides that once an issue is judicially determined, it is not to be reconsidered by judges and courts of coordinate jurisdiction in the course of the same litigation. (Martin v City of Cohoes, 37 NY2d 162 [1975].) However, the law of the case doctrine "is necessarily amorphous in that it directs a court's discretion, but does not restrict its authority." (People v Cummings, 31 NY3d 204, 208 [2018] [internal quotation marks omitted].) Notwithstanding this rule of law, at the defendant's arraignment the court denied the People's application to convert the instrument without prejudice. (Tr of arraignment at 13, lines 22-24.) Contrary to the defendant's contention, the law of the case doctrine does not bind this court to rulings made without prejudice. (See e.g. Sampson v Roberts, 212 AD3d 545 [1st Dept 2023]; see also Fahy v Hertz Corp., Car{**81 Misc 3d at 380} Lease Div., 92 AD2d 581 [2d Dept 1983]; Berne Invs. v Wechsler, 152 AD2d 804 [3d Dept [*4]1989].)

With respect to the defendant's argument that the People wrongly analogized the redaction of a civilian complaining witness' name with that of an undercover police officer, the court acknowledges that undercover officers are in a category of witnesses with protections distinct from civilian witnesses. However, this court finds that use of an undercover officer's shield number to sign a supporting deposition is, in fact, analogous to redacting a complaining witness' name and signature on a supporting deposition, for purposes of converting an accusatory instrument to an information. (See Wilson, 76 Misc 3d 877.) The fact that an undercover officer's identity is never disclosed to a defendant, and the reasons thereunder, have no bearing on whether a supporting deposition, concealing the identity of the deponent, is sufficient to convert an accusatory instrument to an information. So long as the court finds that the supporting deposition has been subscribed and verified by a person with personal knowledge of the factual allegations to support the charges in the accusatory instrument, the document is sufficient to convert the accusatory instrument to an information. (See CPL 100.20.)

This court rejects the defendant's argument that the People's reliance on CPL 245.20 (1) (c) is conflated and irrelevant. The defendant herein is charged with two separate article 130 offenses. Requiring this complaining witness to disclose her identity at the outset of the case would deprive her of the explicit legislative protection intended to safeguard a sexual assault victim during the initial disclosure period.

This court finds that a supporting deposition, which redacts the name of a complaining witness who is a victim of a sex crime under article 130, is sufficient to convert the accusatory instrument to an information, so long as the court has the opportunity to conduct an in camera inspection of the unredacted supporting deposition and is satisfied that the document has been subscribed and verified by a person with personal knowledge of the factual allegations to support the charges in the accusatory instrument. Allowing victims to preserve their anonymity at the early stages of a criminal proceeding not only encourages them to come forward and report incidents of sexual assault and abuse but also relieves them of any fears of backlash and other retaliatory behavior by the defendant, or anyone known to the defendant.{**81 Misc 3d at 381}

In making its finding, this court has weighed the benefits of such disclosure to the defendant at the pretrial stages of a criminal case against the potential dangers posed to the alleged victim. This court cannot ascertain, and the defendant has not asserted, any valid right or benefit to knowing the complaining witness' identity at this stage of the case. Although the defendant argues that the identity of a complaining witness is required at the outset in order to properly defend himself, he articulates no factual or reasonable basis for this assertion. Defense counsel merely argues that if he were able to disclose the name of the complainant to the defendant, the defendant might be able to identify her as someone he knows, which may be helpful to his defense. However, defense counsel conceded that the parties are strangers^[FN5] and made no showing as to how the identity of the complaining witness would benefit his defense at this early stage justifying such disclosure.

This court finds that the defendant is entitled to know the identity of the complaining witness prior to trial. However, this court recognizes that this case may also fall into the large [*5]percentage of criminal cases that never actually go to trial. Thus, requiring disclosure of the complaining witness' identity at this stage would be fruitless and more importantly, would improperly evade the protections set forth in CPL 245.20 (1) (c).

Accordingly, this court finds, upon an in camera inspection, the redacted supporting deposition converts the accusatory instrument to an information.