People v. Klapper

• Decision Date: 28 April 2010
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Andrew KLAPPER, Defendant.
• Court: New York Criminal Court

902 N.Y.S.2d 305

28 Misc.3d 225

The PEOPLE of the State of New York, Plaintiff,

v.Andrew KLAPPER, Defendant.

Criminal Court, City of New York, New York County.

April 28, 2010.

New York County District Attorney's Office, ADA Gregory LeDonne, New York, for the People.

Law Office of Robert E. Brown, Esq., Robert E. Brown, Esq., New York, for the Defense.

MARC J. WHITEN, J.

In this day of wide dissemination of thoughts and messages through transmissions which are vulnerable to interception and readable by unintended parties, armed with software, spyware, viruses and cookies spreading capacity; the concept of internet privacy is a fallacy upon which no one should rely.

It is today's reality that a reasonable expectation of internet privacy is lost, upon your affirmative keystroke. Compound that reality with an employee's use of his or her employer's computer for the transmittal of non-business related messages, and the technological reality meets the legal roadway, which equals the exit of any reasonable expectation of, or right to, privacy in such communications.

In the case at bar, the defendant, Andrew Klapper, is charged with Unauthorized use of a Computer under Penal Law (PL) 156.05. By omnibus motion, the defendant moves to dismiss the charge as facially insufficient and for various other reliefs. For the following reasons, defendant's motion to dismiss for facial insufficiency is GRANTED.

Facial Sufficiency

In order to be facially sufficient, an information must substantially conform to the formal requirements of CPL 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL 100.15[3] and 100.40[1]; see People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986]; see also People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ).

The requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone ( People v. Alejandro, 70 N.Y.2d at 138, 517 N.Y.S.2d 927, 511 N.E.2d 71, quoting 1968 Report of Temp Comm on Rev of Penal Law and Crim Code, Intro Comments); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt ( People v. Henderson, 92 N.Y.2d 677, 680, 685 N.Y.S.2d 409, 708 N.E.2d 165 [1999]; People v. Hyde, 302 A.D.2d 101, 754 N.Y.S.2d 11 [1st Dept. 2003] ). Thus, "[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only thatthe crime and the factual basis therefor be sufficiently alleged" ( People v. Sylla, 7 Misc.3d 8, 10, 792 N.Y.S.2d 764 [2d Dept. 2005] ). Finally, where the factual allegations contained in an information "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendantfrom being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" ( People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000]; see also People v. Konieczny, 2 N.Y.3d 569, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004]; People v. Jacoby, 304 N.Y. 33, 38-40, 105 N.E.2d 613 [1952]; People v. Knapp, 152 Misc. 368, 370, 274 N.Y.S. 85 [1934], affd. 242 App.Div. 811, 275 N.Y.S. 637; People v. Allen, 92 N.Y.2d 378, 385, 681 N.Y.S.2d 216, 703 N.E.2d 1229 [1998]; People v. Miles, 64 N.Y.2d 731, 732-733, 485 N.Y.S.2d 747, 475 N.E.2d 118 [1984]; People v. Shea, 68 Misc.2d 271, 272, 326 N.Y.S.2d 70 [1971]; People v. Scott, 8 Misc.3d 428, 797 N.Y.S.2d 847 [Crim. Ct., N.Y. County 2005] ).

The factual portion of the accusatory instrument alleges, in pertinent parts, that:

[D]eponent is informed by a first individual known to the District Attorney's Office that the defendant installed software on a computer at the defendant's office that recorded the keystrokes entered by the users of said computer.

Deponent further states that deponent is further informed by a second individual known to the District Attorney's Office that said second individual was an employee at the defendant's office and was instructed by the defendant to use only the above mentioned computer. Deponent further states that deponent is further informed by said second individual that said second individual then used the above-mentioned computer for work-related purposes, including to access and use a personal e-mail account.

Deponent further states that deponent is further informed by the first individual that the software installed by the defendant on the above-mentioned computer recorded the password for the e-mail account of the second individual. Deponent further states that deponent is further informed by the first individual that said first individual observed the defendant access the second individual's e-mail account and print copies of computer data and computer material contained within the second individual's e-mail account.

Deponent further states that deponent is further informed by the second individual that the defendante-mailed said second individual an electronic document that contained portions of e-mails generated from said second individual's e-mail account. Deponent further states that deponent is further informed by said second individual that the defendant had no permission or authority to access said second individual's personal e-mail account or to take or use any computer data, computer material, or other electronic information stored in said second individual's personal e-mail account.

A person is guilty of unauthorized use of a computer when he or she knowingly uses, causes to be used, or accesses a computer, computer service, or computer network without authorization. PL 156.05. A computer is defined as "a device or group of devices which, by manipulation of electronic, magnetic, optical or electrochemical impulses, pursuant to a computer program, can automatically perform arithmetic, logical, storage or retrieval operations with or on computer data, and includes any connected or directly related device, equipment or facility which enables such computer to store, retrieve or communicate to or from a person, another computer or another device the results of computer operations, computer programs or computer data." PL 156.00[1]. A computer service includes "any and all services provided by or through the facilities of any computer communication system allowing the input,output, examination, or transfer, of computer data or computer programs from one computer to another." PL 156.00[4]. Under the statute, to access a computer, computer service or computer network means "to instruct, communicate with, store data in, retrieve from, or otherwise make use of any resources of a computer, physically, directly or by electronic means." PL 156.00[7].

Therefore, in sum, to support the charge the allegations must allege facts of an evidentiary nature to establish that defendant (1) knowingly used or accessed a computer or services; (2) without authorization.

At issue before this court is whether the above allegations are sufficiently plead to support the charge of unauthorized computer use. Specifically, the element of "without authorization".

Defendant contends that the accusatory instrument fails to allege facts sufficient to establish a prima facie case to support the charge of unauthorized use of a computer. Specifically, defendantargues that the factual allegations fail to identify with specificity the email account allegedly accessed or any other facts to support that the alleged access was unauthorized, inasmuch as the complaint fails to state whether the email account was complainant's personal-work email account or a "private personal" email account. Moreover, defendant argues the allegations are devoid of facts to support that complainant had an expectation of privacy with regard to email use at work since defendant owned the computer and complainant was defendant's employee.

The People oppose defendant's motion and contend that the factual allegations are sufficiently plead to support the charge. First, the People contend that the allegations that defendant was (1) observed by another employee installing keystroke-tracking software on a computer, (2) that he instructed complainant to use said computer, (3) that complainant did use said computer "for work-related purposes, including to access and use a personal email account", and (4) that defendant was later observed accessing said email are sufficient to support the charge, as the allegations provide defendant with the conduct and crime that he is alleged to have committed. Second, the People contend that the question of whether the defendant as an employer had the authority to access the email account is an issue of fact for trial, as the complainant's use of the computer for work-related purposes goes to the weight, not the sufficiency of the charges. This court disagrees with the People and finds that under the circumstances herein the factual allegations fail to establish the element of "without authorization", as such the accusatory instrument is jurisdictionally defective.

Penal Law 156.00[8] defines "without authorization" to mean the use or access of "a computer, computer service or computer network without the permission of the owner ... where such person" (1) knew that access was without permission or (2) had actual notice that he or she did not have permission from the owner of the computer or computer service, or (3) by proof that the user knowingly circumvented a security measure installed or used by the owner of the computer or computer service. PL 156.00[8].

The allegations viewed in the light most favorable to the People ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d...