Verification is a key step in upholding the due process guaranteed by the 5th Amendment. The authority to prosecute a violation of law is demonstrated and justified through adherence to the law. One of the abstract pleasures of working for the Defendant is keeping the system honest. If one Defendant can be improperly prosecuted, we all can.

The statute governing the various methods of verification is pretty straightforward. CPL § 100.30 describes accusatory instruments and supporting depositions as validated if they are:

  • Sworn before the court
  • Sworn before a desk officer or his superior at a police station or headquarters
  • Sworn before authorized public servants
  • Sworn by notice pursuant to Penal Law § 210.45
  • Sworn by a notary public

Any of the above methods are acceptable under CPL § 100.30(1), however, under CPL § 100.30(2) the court may demand verification by a particular method if it so chooses.

[i] As an extension of this discretion, the courts have ruled in favor of the spirit of the law, rather than the letter of the law, in cases which challenge the technicality of a given verification.

For instance, in the case of People v. Pagan, the court concluded that reading a statement and providing a signature before the sworn officer was sufficient verification, and the deponent was not required to “raise his hand and orally recite an oath.”[ii]

Hearsay

While an accusatory instrument without a verification can result in the dismissal of an information, (see People v. Ryan)[iii], it may not result in the dismissal of a complaint (see People v. Revine)[iv].

It is important to establish that CPL § 100.15(1) dictates that verification of an accusatory instrument applies only to the factual part of the instrument. This process of verification is necessary to elevate the standard of proof of evidence described in CPL § 70.10 from “reasonable cause to believe that a person has committed an offense” to “legally sufficient evidence.”[v]

An unverified complaint has standard of proof of “reasonable cause” (as with Revine) and may include or consist of hearsay. An information verified under due process has a higher standard of proof of “legally sufficient evidence” (as with Ryan) and must be supported by non-hearsay allegations. CPL § 170.65 allows a defendant to waive his right to prosecution by the higher standard of proof offered by an information.

This presents a negotiation opportunity for Prosecutors who have forgotten the color of their desktops which lay under piles of complaints. This is an important opportunity for Defendant’s as well to potentially receive a reduced bail or plea offer. As always, consult your attorney prior to taking any action.

The Law Office of John C. Nelson represents people throughout Erie County including Springville Village Court, Concord Town Court, Sardinia Town Court, Boston Town Court, Cheektowaga Town Court, as well as most of Cattaraugus County on all criminal, drug, DWI, and traffic charges.

[i] http://codes.lp.findlaw.com/nycode/CPL/TWO/H/100/100.30

[ii] People v. Pagan, 93 N.Y.2d 891, 689 N.Y.S.2d 686, 711 N.E.2d 964 (1999), NYS CLS Desk Edition Gilbert’s Criminal Practice Annual 2014 Edition (Matthew Bender), CPL-217

[iii] People v. Ryan, 185 Misc. 2d 477, 713 N.Y.S.2d 447 (Dist. Ct. Suffolk Co. 2000), Bender, CPL-217.

[iv] People v. Revine, 80 Misc. 2d 292, 362 N.Y.S.2d 989 (Dist. Ct. Nassau Co. 1975), Bender, CPL-217.

[v] http://codes.lp.findlaw.com/nycode/CPL/ONE/D/70/70.10