Friday, June 29, 2012

Unauthorized Access, Identity Theft and the Fired Employee


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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