An accusatory instrument was filed on March 12, 2012, charging defendant with Unauthorized Use of a Computer (Penal Law §156.05) and Identity Theft in the Third Degree (Penal Law §190.78). By Notice of Omnibus Motion dated April 9, 2012, defendant moves, inter alia, for an order to dismiss the complaint for facial insufficiency

The factual portion of the accusatory instrument alleges 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 defendant was formerly employed at Goldglit and Company, and that on January 20, 2012, defendant's employment was terminated. Informant states that on January 26, 2012, an email was sent from informant'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 defendant does not have access to his computer, computer network, and email account, and that [*2]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 defendant, which letter enclosed a copy of the above-mentioned email and which letter described said email as "PRAISE COURTESY OF MY FORMER EMPLOYER."

The supporting deposition indicates that defendant was fired on January 11, 2012.

Facial Sufficiency

When a defendant is charged in a misdemeanor complaint, unless he pleads guilty or waives prosecution by information, the misdemeanor complaint must be replaced prior to trial with an information meeting the requirements for facial sufficiency. CPL §§170.65; 100.40(1)(c); 100.15(3); 170.35; People v Alejandro, 70 NY2d 133 (1987). The information must, for jurisdictional purposes, contain non-hearsay factual allegations sufficient to establish a prima facie case. People v Alejandro, 70 NY2d 133 at 137. Furthermore, both informations and misdemeanor complaints must allege or be based upon "reasonable cause to believe" the defendant committed the offenses charged. People v Dumas, 68 NY2d 729 (1986). "Reasonable cause to believe that a person has committed an offense 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..." CPL §70.10(2). A conclusory allegation a defendant committed each and every element of a crime, standing alone, does not meet the reasonable cause requirement. People v Kalin, 12 NY3d 225, 229 (2009).

In reviewing an accusatory instrument for facial sufficiency, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense...," the court should give it "[a] fair and not overly restrictive or technical reading." People v Casey, 95 NY2d 354, 360 (2000). Moreover, the Court of Appeals in People v Allen, 92 NY2d 378, 385 (1998), held that at the pleading stage, all that is needed is that factual allegations are sufficiently evidentiary in character and tend to support the charges.

With regards to the Unauthorized Use of a Computer charge, defendant argues that the complaint fails to allege facts to establish that defendant knowingly used or accessed the informant's computer without authorization. This Court disagrees.

An individual violates Penal Law §156.06 "[w]hen he or she knowingly uses, causes to be used or accesses a computer, computer service, or computer network without authorization."The allegations of the instant complaint are sufficient to meet the burden of reasonable cause to believe that defendant knowingly accessed the informant's email account without authorization. The supporting deposition alleges that the defendant 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 the defendant and requesting that the defendant be considered for employment. The [*3]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 defendant 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 defendant knowingly accessed defendant's computer without permission.

Defendant's claim that the complaint is facially insufficient because it does not demonstrate that he sent the email or how he accessed the informant's email account is unavailing. Given that the email was sent shortly after defendant was fired, that the email commends the defendant's job performance, expresses regret for firing him, urges that he be considered for employment, and is attached to a letter from defendant endorsing its content, the Court may draw the reasonable inference that the defendant accessed the informant's email account and sent the email for the purposes of obtaining employment.

Moreover, the statute does not require that the People allege precisely how the defendant accessed the informant's email account, but merely that the defendant 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 that defendant 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.

Accordingly, defendant's motion to dismiss Penal Law §156.06 for facial insufficiency is denied.

Here, the defendant argues that the complaint lacks sufficient allegations to establish that defendant assumed the informant's identity. The Court disagrees. Penal Law §190.78 provides that:

A person is guilty of identity theft in the third degree when he or 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.

The allegations of the complaint are sufficient to meet the burden of reasonable cause to believe that defendant, 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 defendant distributed this email to others.

Accordingly, the defendant's motion to dismiss the complaint for facial insufficiency is denied in its entirety.

This is the decision and order of the Court. [*4]

Dated: May 21, 2012

New York, New York______________________________

Hon. Diana M. Boyar

Justice of the Criminal Court