DECISION & ORDER Defendant moves for an Order: (i) deeming the People’s two certificate 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 Constitution; (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 pre-trial 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 adhere to the judge’s ruling. The judge who presided over defendant’s arraignment, reaffirmed 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, 2022 for conversion and for CoC filing. On January 15, 2023, the People filed their a 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 to turnover 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 (“SCoC”) 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 his discovery obligations and serve reciprocal discovery. Legal Analysis 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) (Crim. Ct. Bronx Cnty. 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 N.Y.2d 434 (1998); 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 N.Y.2d 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) (Crim. Ct. Bronx Cnty. 2023) citing People v. Weaver, 166 Misc. 2d 488, 491-492 (Crim Ct. N.Y. Cnty. 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, 230 (Crim. Ct. Bronx Cnty. 2020). A CoC filed by the People may only be deemed valid if filed after “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) (Crim. Ct. Bronx Cnty. 2023) citing People v. Gonzalez, 68 Misc. 3d 1213(A) (Sup. Ct. Kings Cnty. 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 N.Y.2d 1, 4 (1994). “[T]he statement ‘ready for trial’ contemplates more than merely mouthing those words.” Id. “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 N.Y.2d 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 N.Y.2d 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 (Crim. Ct. Albany Cnty. 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 “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 the error; the volume of discovery in the case; and the applicability of any statutory 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 Cnty. 2022). 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. People v. Ferrer, 72 Misc. 3d 1212(A) (Crim Ct. Bronx Cnty. 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 complainants typewritten name converted the compliant 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 charging one or more persons with committing misdemeanor offenses only. CPL §100.15; People v. Fortty, 78 Misc. 3d 1229(A) (Crim Ct. Bronx Cnty. 2023) citing People v. Williams, 63 Misc. 3d 765 (Crim. Ct. N.Y. Cnty. 2019). “Failure to properly verify an accusatory instrument is a jurisdictionally fatal defect.” People v. Fortty, 78 Misc. 3d 1229(A) (Crim Ct. Bronx Cnty. 2023) citing People v. Richard, 33 Misc. 3d. 855, 859 (Crim. Ct. N.Y. Cnty. 2011). The misdemeanor complaint may be verified 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 (Crim. Ct. Queens Cnty. 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 non-hearsay allegations that “provide reasonable cause to believe that the defendant committed the offense charged.” CPL §100.40(1)(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 (Crim. Ct. N.Y. Cnty. 2015); CPL §170.65(1). A signature can be “any memorandum, mark or sign written, printed, stapled, photographed, engraved, or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing with the intent to execute or authenticate such instrument or writing. See NY Gen Constr. §46. An electronic signature has the same “validity and effect as the use of a signature by hand.” People v. Adams, 65 Misc. 3d. 289, 294 (Crim. Ct. N.Y. Cnty. 2019). Moreover, the New York legislature and courts support the use of electronic signatures. People v. Sanchez, 47 Misc. 3d 612 (Crim. Ct. Queens Cnty. 2015)(the legislature enacted policies to “promote the use of electronic signatures to facilitate business.”). Effective August 1999 was the New York State Electronic Signatures and Records Act (ESRA) which is New York State Technology Law, Article 3, NY STT §§301-309. However, in 2002 the ERSA was amended to be consistent with the federal E-Sign law. NYS-G04-001. “The definition of ‘electronic signature’ in ESRA §302(3) conforms to the definition in federal law (the ‘E-Sign’ Act).” Id. “In 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 America v. Dukoff, 674 F.Supp.2d 401 (E.D.N.Y. 2009). 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. N.Y. State Tech. Law §304(2). 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 erecords) the same force and effect as signatures and records produced by nonelectronic means.” NYS-G04-001. 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.” N.Y. State Tech. 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.” NYS-G04-001. 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 (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) (App. Term 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 Cnty. 2019)(electronic signature on supporting deposition was valid); People v. White, 25 Misc. 3d 1209(A) (Cnty. Ct. Otsego Cnty. 2009)(simplified traffic information were 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, as well as verify its contents under the penalties of perjury.” See People v. Adams, 65 Misc. 3d 289, 295 (Crim. Ct. N.Y. Cnty. 2019). The validity of the electronic signature in an e-mail from the People showed that the complainant was appraised of the consequences of confirming the statements under perjury and the complainant replied with “I agree” with her name included within the e-mail. See People v. Sanchez, 47 Misc. 3d 612 (Crim. Ct. Queens Cnty. 2015). Consequently, the e-mail submitted by the People that contained no text and only an attachment was insufficient to convert the complaint to an information. The e-mail 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 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 defendant’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 A.D.2d 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 N.Y.2d 75, 531 N.Y.S.2d 228, 526 N.E.2d 1086 [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 N.Y.2d 884, 532 N.Y.S.2d 739, 528 N.E.2d 1212 [untranscribed plea minutes of prosecution witness were not Rosario material]; People v. Reedy, [70 N.Y.2d 826, 523 N.Y.S.2d 438, 517 N.E.2d 1324)] [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 N.Y.2d 879, 581 N.Y.S.2d 160, 589 N.E.2d 383 [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 A.D.2d 463, 549 N.Y.S.2d 392 [statement by a rape victim to a Victim Service Agency was not within the People's possession or control and was not Rosario material]; People v. Letizia, 159 A.D.2d 1010, 552 N.Y.S.2d 732 [victim's statement to the Crime Victim's Compensation Board was not in the People's possession or control and was not Rosario material]; Matter of Dwayne H., 173 A.D.2d 466, 570 N.Y.S.2d 89 [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 587-588 (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) 1, 9 (Crim. Ct. Kings Cnty. 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) (Crim. Ct. Kings Cnty. 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. Cnty. 2022). Accordingly, the People’s CoC cannot be deemed invalid for failing to turnover medical records. Deleted or Lost Cellular Phone Video Footage The People acted in good faith and 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 cannot be disclosed because it has been lost, destroyed, or otherwise unavailable…despite diligent and good faith efforts, under reasonable circumstances.” CPL §245.50(1). 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 diligence by promptly contacting the arresting officer after being notified by defense counsel of the missing video. People v. Cano, 71 Misc. 3d 728 (Crim. Ct. Queens Cnty. 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) (Crim. Ct. Queens Cnty. 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 N.Y.2d 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. This constitutes the decision and order of the court. Dated: June 20, 2023
