This post examines a New York court’s opinion addressing Basil
Agrocostea’s motion to dismiss the “accusatory instrument” filed against him
“for facial insufficiency.” People v. Agrocostea, 2012 WL 2273595
(New York City Criminal Court 2012). We’ll
get to the charges in the “accusatory instrument” in a bit. First, I need to parse out what is going on
here.
According to New York’s Criminal Procedure Law § 1.20(1), an
“accusatory instrument” is “an indictment, . . . an information. . . a misdemeanor
complaint or a felony complaint.” Agrocostea was charged by a misdemeanor
complaint. People v. Agrocostea, supra.
As § 1.20(7) also notes, a misdemeanor complaint is
verified written accusation by a person
. . . filed with a local criminal court, which charges one or more defendants
with the commission of one or more offenses,
at least one of which is a misdemeanor and none of which is a felony, and which
serves to commence a criminal action but
which may not, except upon the defendant's consent, serve as a basis for
prosecution of the offenses charged therein.
Unless a defendant pleads guilty to the charges in the
misdemeanor complaint or waives his right to be prosecuted by an information, “the
misdemeanor complaint must be replaced prior to trial with an information
meeting the requirements for facial sufficiency.” People v. Agrocostea,
supra. So, Agrocostea was apparently
trying to stop this prosecution from going any further, i.e., to the filing of
an information or an indictment.
The opinion doesn’t specifically say this, but as far as I
can tell Agrocostea’s motion to dismiss was filed under New York’s Criminal
Procedure Law § 170.35, which says an accusatory instrument, as defined
above, can be dismissed as “defective” when it “is not sufficient on its face
pursuant to the requirements of” New York’s Criminal Procedure Law §
100.40. Section 100.40(4)(b) says a
misdemeanor complaint is “sufficient on its face when” the
allegations of the factual part of such
accusatory instrument and/or any supporting depositions which may accompany it,
provide reasonable cause to believe that the defendant committed the offense
charged in the accusatory part of such instrument.
According to this opinion, “reasonable cause” exists when
`evidence or information which appears
reliable discloses facts or circumstances which are collectively of such weight
and persuasiveness as to convince a person of ordinary intelligence, judgment
and experience that it is reasonably likely that such offense was committed and
that such person committed it. . . . ‘
People v. Agrocostea,
supra (quoting New York Criminal Procedure Law § 70.10(2)). A “conclusory
allegation” that the defendant committed the crime does not constitute
“reasonable cause”. People v. Agrocostea, supra.
And that brings us to the facts in the case. The opinion notes that the “factual portion
of the” misdemeanor complaint alleged that
on January 26, 2012 at about 2:00 hours
inside of 499 Seventh Avenue in the County and State of New York, defendant
committed these offenses under the following circumstances:
Deponent is informed by Steven Goldglit, of an
address known to the District Attorney's Office, that informant is the managing
partner of Goldglit and Company, an accounting firm located at the above
location. Informant states that [Agrocostea] was formerly employed at Goldglit
and Company, and that on January 20, 2012, [his] employment was terminated.
Informant states that on January 26, 2012, an email was sent from [Agrocostea’s]
business email account to basyagro@gmail.com which reads, in substance:
BASIL AGROCOSTEA IS MY SILENT REAL PARTNER. I SHOULD
NOT HAVE FIRED HIM. HE WASN'T PAID ENOUGH. HE WAS THE FIRST TO IMPLEMENT MANY
GOOD IDEAS. HE TAUGHT ME THINGS AND WAS A VALUABLE MEMBER OF THE FIRM. I WAS
WRONG FOR NOT ADEQUATELY COMPENSATING HIM AND FOR FIRING HIM. PLEASE CONSIDER
HIM FOR EMPLOYMENT.
Informant states that the email purports to be
signed by informant, but that informant did not sign said email.
Deponent is further informed that informant did not
send the above stated email, that [Agrocostea] does not have access to his
computer, computer network, and email account, and that he does not have
permission or authorization to use said email account.
Deponent is further informed that
informant has read a letter dated February 20, 2012, directed to a client of
Godglit and Company and signed by [Agrocostea], which letter enclosed a copy of
the above-mentioned email and which letter described said email as `PRAISE COURTESY
OF MY FORMER EMPLOYER.’
People v. Agrocostea,
supra.
The opinion also notes that “the supporting deposition” said
Agrocostea “was fired on January 11, 2012”, well before the email in question
was sent. People v. Agrocostea, supra.
As a result of the allegations outlined above and, presumably, further
elaborated on in the “supporting deposition”, Agrocostea was charged with
unauthorized use of a computer in violation of New York Penal Law § 156.05 and
with identity theft in the third degree in violation of New York Penal Law §190.78. People v. Agrocostea, supra.
As to the unauthorized use of a computer charge, Agrocostea
argued that the misdemeanor complaint failed “to allege facts to establish that
[he] knowingly used or accessed the informant's computer without authorization.” People
v. Agrocostea, supra. More
precisely, he argued that the complaint was “facially insufficient because it [did]
not demonstrate that he sent the email or how he accessed the informant's email
account”.
People v. Agrocostea,
supra.
The court did not agree:
The supporting deposition alleges that [Agrocostea]
was fired on January 11, 2012. The accusatory instrument alleges that
thereafter, on January 26, 2012, an email was sent from the informant's email
account to the email address basyagro @gmail.com expressing regret for firing [Agrocostea]
and requesting that [he] be considered for employment. The complaint further
alleges that the email purports to be sent by the informant, but that the
informant did not send the email.
The complaint also references a letter,
dated February 20, 2012, signed by [Agrocostea] and sent to one of the
informant's clients. This letter references the content of the email sent from
the informant's email account.
These allegations, taken together,
given a fair and not overly technical reading are sufficient to meet the burden
of reasonable cause to believe that [Agrocostea] knowingly accessed [the deponent’s]
computer without permission.
People v. Agrocostea,
supra.
The judge also found that given that “the email was sent
shortly after” Agrocostea was fired, that it commended his “job performance,
expresse[d] regret for firing him, urge[d] that he be considered for
employment, and is attached to a letter” in which Agrocostea “endors[ed] its content,” she could “draw the
reasonable inference” that Agrocostea “accessed the informant's email account
and sent the email for the purposes of obtaining employment.” People
v. Agrocostea, supra.
She also noted that the statute defining the offense does
not require the prosecution to
allege precisely how [Agrocostea]
accessed the informant's email account, but merely that [he] knowingly used or
accessed the informant's computer or computer network without permission. It is
well known that an individual need not be present or ever have had contact with
the computer terminal of another in order to access their email account or
computer network.
Based upon the foregoing, the facts of
the instant complaint provide the Court reasonable cause to believe [Agrocostea]
knowingly accessed his former employer's email account or caused it to be used
to send an email that he was not authorized to send.
People v. Agrocostea,
supra. She therefore denied his
motion to dismiss the unauthorized access charge. People
v. Agrocostea, supra.
The judge then took up Agrocostea’s argument that the
complaint lacked “sufficient allegations to establish that [he] assumed the
informant's identity.” People v. Agrocostea, supra. She noted that the statute at issue, New York
Penal Law § 190.78, states that a person is guilty of identity theft in the
third degree when he/she
knowingly and with intent to defraud
assumes the identity of another person by presenting himself or herself as that
other person, or by acting as that other person or by using personal identifying
information of that other person, and thereby: (1) obtains goods, money,
property or services or uses credit in the name of such other person or causes
financial loss to such person or to another person or persons or (2) commits a
class A misdemeanor.
People v. Agrocostea,
supra.
She therefore found that the
allegations of the complaint are
sufficient to meet the burden of reasonable cause to believe that [Agrocostea],
with the intent to defraud potential employers assumed his former employer's identity,
by sending an email through his employer's email account, in the name of his
employer, for the purpose of obtaining employment.
The accusatory instrument further
supports the reasonable inference that [Agrocostea] distributed this email to
others.
People v. Agrocostea,
supra.
Given all this, the judge denied Agrocostea’s motion to
dismiss the complaint for facial insufficiency.
People v. Agrocostea, supra. So, that presumably means he either pleads
guilty to the charges in the misdemeanor complaint or goes to trial on the
complaint (if he waives his right to be charged by a information) or on the
felony complaint that would replace it.
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