People v. Hernandez, 2011 NY Slip Op 21022, 2011 N.Y. Misc. LEXIS 87 (N.Y. City Ct. Jan. 26, 2011).

ESIGN Take-aways:

• Since the use of electronic signatures and records in the State of New York is voluntary, it is unclear whether they are allowed in criminal cases where the defendant or his/her attorney has not approved of their use.  Furthermore, a copy of an electronic copy of a signature (resembling a photocopy), which is so indistinct as to be unreadable, fails the State of New York's best evidence rule.  Lastly, any document submitted with an electronic signature under the State of New York's Electronic Signatures and Records Act, must still satisfy any authentication requirements that a document signed with pen and ink must satisfy.

The court ruled on the admissibility of four breath test foundational documents from two bench trials both involving Driving While Intoxicated (DWI) charges. The defendants objected to the admissibility of the four test results under the business records exception to the hearsay rule. Hernandez, 2011 N.Y. Misc. Lexis 87, at 1.  One of the documents was signed using "pen & ink" and/or a raised seal; however, the other three documents were not signed using pen and ink nor did they have raised seals, but appeared to have photocopies of a signature with a notation that the documents were "Digitally signed under New York's [Electronic Signatures and Records Act (ESRA)]…." Id.  The court held that the three documents with the alleged electronic signatures were found inadmissible under N.Y. C.P.L.R. 4518 because the documents themselves were flawed and the electronic signatures had irregularities which had not been overcome by the use of a raised seal.

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