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Electronic signature sufficient for supporting deposition

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.


Electronic Signature Sufficient for Supporting Deposition

Every summer, during the course of conducting research for the annual update to the book I co-author with Judge Karen Morris, Criminal Law in New York, I often come across cases that offer an interesting take on the intersection of law and technology. People v. Almodovar, 63 Misc.3d 994 (Crim Ct. 2019) is just such a case.

At issue in this case is the sufficiency of the accusatory instrument charging the defendant with assault in the third degree, menacing in the second and third degree, criminal possession of a weapon in the fourth degree, and harassment in the second degree. Specifically, the defendant asserted that the accusatory instruments were defective due to the fact that “the supporting deposition's electronic signature is invalid under New York State law.”

In this case the accusatory instruments consisted of, in part, a complaint and the complainant’s supporting deposition attesting that the facts set forth in the complaint were true and were based upon her personal knowledge. The supporting deposition had been electronically signed and included the following language:

*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).”

Also submitted with the complaint was the affirmation of an assistant district attorney (ADA), which also included an email exchange between the ADA and the complainant that resulted in the complainant providing her electronic signature. The ADA’s affirmation provided, in relevant part, as follows:

(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.

In reaching its decision, the court examined the legislative intent behind the enactment of New York State Technology Law § 304 (2), which specifically allows the use of an electronic signature on most legal documents, unless otherwise provided by law. The Court noted that when the Legislature enacted the law, it did not include criminal court complaints or supporting depositions on the the list of enumerated exceptions.
The Court also considered the rulings recently handed down by a number of New York courts that had concluded that the use of an electronic signature on a supporting deposition was permissible.

Based on its analysis, the Court rejected the defendant’s argument, which was that the electronic signature was invalid since the email address used to register the electronic signature did not contain the complainant’s name, and thus someone else could have executed it. The Court proffered the following explanation:

(T)here 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.

Accordingly the Court concluded that the electronic signature on the supporting deposition was valid, and as such, the accusatory instrument was facially sufficient.

The Court’s conclusion was the correct one. Times are changing and technology’s impact cannot be ignored, even in the Halls of Justice. Electronic signatures are now commonplace and have binding legal effects; criminal courts should not be immune from this 21st century reality.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at [email protected].