Criminal Court of the City of New York, Queens County, November 30, 2017

Legal Aid Society (Judy J. Jun and Danielle M. Troumouliaris of counsel) for defendant.

Richard A. Brown, District Attorney (Yena Kwon of counsel), for plaintiff.

The defendant, Bartosz Maslowski, is charged with assault in the third degree (Penal Law § 120.00) and harassment in the second degree (Penal Law § 240.26 [1]). He now moves this court to dismiss the information on trial readiness grounds. The defendant's dismissal motion rests upon two arguments:

• that the People's February 8, 2017 declaration of non-readiness for trial, based upon the prosecutor's intention of obtaining medical records, renders illusory all previous declarations of readiness; and

• that the accusatory instrument was not converted to an information until the People filed and served a valid certificate of translation attesting that the document was translated to the complainant.

The People, by written response, oppose the defendant's motion.

This court first addresses the defendant's two legal arguments, followed by an analysis of the "30.30 clock" in light of these legal determinations.{**58 Misc 3d at 594}

[1] The People's announcement of non-readiness for the purpose of obtaining medical records does not render previous declarations of readiness illusory per se pursuant to CPL 30.30.

The defendant argues that the procedural history of this case tracks that of People v Sibblies (22 NY3d 1174 [2014]) where, approximately one month after filing and serving an off-calendar certificate of readiness (CoR) for trial, the People informed the court that they were not ready for [*2]trial as they were awaiting the complainant's medical records. The Sibblies Court found unanimously that the off-calendar CoR was rendered illusory by the People's subsequent admission of non-readiness. However, the Court did not decide definitively whether the People have the burden of "demonstrat[ing] that some exceptional fact or circumstance arose after their declaration of readiness so as to render them presently not ready for trial" or if a presumption exists that "a statement of readiness is truthful and accurate" on its face. (Sibblies, 22 NY3d at 1178-1180.) Approximately two years after Sibblies, the Court of Appeals resolved this question by holding that "an off-calendar statement of readiness is presumed truthful and accurate[,] and . . . a defendant who challenges such a statement must demonstrate that it is illusory." (People v Brown, 28 NY3d 392, 405 [2016].)

This Brown presumption overrules the defendant's per se objection in the instant case to the validity of the People's statements of readiness prior to their subsequent statement of non-readiness. But, that does not end the inquiry. If the defendant demonstrates sufficiently that a CoR is illusory, then, pursuant to Brown, the presumption of the People's truthfulness and accuracy will be rebutted, and the time will be charged against the "30.30 time" the People have to be ready for trial.

In this case, the People declared themselves ready to proceed to trial on back-to-back calendar court dates (Oct. 12 and Dec. 6, 2016), followed by a declaration on the next court date (Feb. 8, 2017) that they were no longer ready to so proceed as they "are awaiting medical records."

The People explain that the police officer "complainant was cooperative and available, and the charges could have been proven at trial without the medical records. The People were prepared to proceed without the medical records, but medical records were sought to enhance the case." (People's 30.30 response {**58 Misc 3d at 595}at 2; see also e.g. People v Wright, 50 AD3d 429, 430 [1st Dept 2008] ["There is nothing in CPL 30.30 to preclude the People from declaring their present readiness, but still gathering additional evidence to strengthen their case. . . . Here, the People could have tried this case on the basis of eyewitness testimony alone, and the wisdom of doing so is irrelevant for speedy trial purposes"]; People v Polanco, 54 Misc 3d 141[A], 2017 NY Slip Op 50188[U], *1 [App Term, 1st Dept 2017] ["The People could legitimately declare their readiness while gathering additional evidence to strengthen their case"].) Additionally, the People explain, they received the medical records later in the day on February 8th and filed and served a CoR the next day.

The defendant provides no additional information to rebut the prosecutor's explanations. Thus, the Brown presumption of truthfulness and accuracy attaches to the People's October 12 and December 6, 2016 in-court proclamations of readiness.

[2] Where the defendant demonstrates actual or constructive knowledge by the People that a complainant requires an interpreter to understand and verify the truthfulness and accuracy of the allegations of an accusatory instrument, translation by an interpreter, confirmed by the filing and service of a supporting deposition, such as a certificate of translation, is a necessary prerequisite for conversion to an information.

In this case, the defendant was arraigned on August 5, 2016. Off-calendar, on August 26, 2016, the People filed and served a supporting deposition of the complainant. Subsequently, on January 27, 2017, the People filed and served a superseding information signed by the complainant and accompanied by a certificate of translation (CoT) attesting that an interpreter with the AT&[*3]T Language Line Interpretation Service translated the superseding information into Polish for the complainant. No such CoT was filed with the initial accusatory instrument.

The original accusatory instrument alleged that the defendant committed assault in the third degree and harassment in the second degree against the complainant by "punch[ing] and kick[ing] him about the face and body causing bruises to his face and body." Via the supporting deposition, the complainant attested, under the penalty of perjury, that the allegations against the defendant attributed to him in the accusatory instrument were in fact true.{**58 Misc 3d at 596}

However, in later filing a CoT along with a superseding information, the People conceded their actual knowledge, and constructive knowledge since the start of this prosecution, that the complainant was incapable of confirming the veracity and accuracy of the English-written, hearsay allegations attributed to him in the accusatory instrument without the benefit of a Polish translation.

Moreover, Rosario documents further substantiate the fact that the complainant was reliant upon a Polish translation, namely,

• complainant is described on the NYPD Omniform Complaints Sheet as "not proficient in English," Polish speaking and requiring translation; and

• complainant is listed on certified records of Wyckoff Heights Medical Center as Polish speaking and requiring an interpreter service to sign an acknowledgement form while being treated.

That these Rosario documents were provided by the prosecution to the defendant underscores the People's constructive knowledge of the complainant's lack of proficiency in English.

"A misdemeanor complaint authorizes jurisdiction over an accused, and can commence a criminal action . . . , but it cannot serve as a basis for prosecution, unless the defendant waives prosecution by information. Concomitantly, unless waived, a valid information is a jurisdictional requirement for a misdemeanor prosecution." (People v Dumay, 23 NY3d 518, 522 [2014], citing CPL 100.10 [4]; 120.20 [1] [a]; 170.65 [1], [3]; 170.70; People v Kalin, 12 NY3d 225, 228 [2009].) Here, it is undisputed that the defendant never waived prosecution by information. The "[n]on-hearsay allegations of the factual part of the information . . . [must] establish, if true, every element of the offense charged and the defendant's commission thereof." (CPL 100.40 [1] [c].) In this case, where the complainant is clearly non-English speaking and the People knew that translation was necessary to provide him the opportunity to learn exactly what accusations were being made in his name, but failed to file a CoT, every allegation of the initial accusatory instrument was hearsay.

The People, in response, describe a CoT as "not necessary for the complaint to be deemed an information" and argue that "whether the signing witness understood the complaint due to a language barrier or any other reason is an issue for cross-{**58 Misc 3d at 597}examination at trial." (People's 30.30 response at 4.) However, this argument overlooks the defendant's affirmative evidence and the People's admission, through the subsequent filing of a CoT, that the complainant lacked such understanding without the aid of a Polish interpreter. The prosecutor's work in creating a superseding document, interacting with the complainant via a telephonic Polish interpreter to ensure his complete understanding of, and agreement with, the accusations made against the defendant, and creating a CoT to memorialize this effort directly belie the People's current attempt to minimize this undertaking.

Further, cases cited by the People undercut their stance. For example, in People v Benitez (15 Misc 3d 1122[A], 2007 NY Slip Op 50798[U], *2 [Crim Ct, Kings County 2007]), the court opined that "if, during the pre-trial stage [*4]of a criminal proceeding, a court is presented with unchallenged indicia of a complaining witness' lack of understanding and ability to speak or read English, the verifications by that complaining witness on the corroborating affidavit would become immediately suspect." The case sub judice involves exactly this issue of a corroborating affidavit rendered "immediately suspect" by the "unchallenged indicia," demonstrated by Rosario documents and the People's later filing of a CoT, that the complainant could not understand the English-written accusatory instrument unaided. (Compare also People v Honshj, 176 Misc 2d 170, 175 [Crim Ct, Kings County 1998] ["defendant's mere speculation that the complainant 'might' not have read or understood the allegations in the complaint is insufficient to successfully challenge the propriety of the supporting deposition" (emphasis added)].)

Beyond the hearsay ramifications of the People filing and serving an accusatory instrument or supporting deposition signed by a complainant whom they know, actually or constructively, does not understand English, this court also is concerned that disregard for obtaining a complainant's knowing verification of the truthfulness and accuracy of the accusatory instrument violates the spirit of the procedural and substantive due process rights guaranteed to the defendant under both the Federal and the New York State Constitutions. (See US Const Amends V, XIV, § 1; NY Const, art I, § 6.) That a defendant may be charged with a crime only pursuant to the attestation of a person with actual knowledge of the event is a central tenet of due process.{**58 Misc 3d at 598}

Accordingly, this court finds that, based upon Rosario documentation and the People's implied concession, the People were aware that the complainant required a Polish interpreter to understand and verify the truthfulness and accuracy of the allegations of the English-written accusatory instrument. Therefore, utilization of a translator, confirmed by the filing and service of a valid CoT, was a necessary prerequisite for conversion of the document to an information.^[FN1]

Against the backdrop of these legal determinations, this court makes the following findings regarding the defendant's 30.30 motion.

Trial Readiness Analysis

Where, as here, the top count charged in a superseding information is a class A misdemeanor, the People must be "ready for trial within . . . ninety days of the commencement of [the] criminal action." (CPL 30.30 [1] [b].) A defendant has the initial burden of asserting that the People's "30.30 time" has expired. Thereupon, the burden switches to the People to demonstrate that certain periods within that time should be excluded pursuant to statutorily enumerated exemptions. (See CPL 30.30 [4]; People v Santos, 68 NY2d 859, 861 [1986]; People v Cantoni, 140 AD3d 782, 784 [2d Dept 2016].)

The Adjournment from August 5 to October 12, 2016

This case commenced with the defendant's arraignment on August 5, 2016. It was adjourned to October 12, 2016, for the People to file and serve a necessary supporting deposition, which was done off-calendar on August 26, 2016, along with a certificate of readiness.

However, no CoT was filed despite the People's knowledge that the complainant required a Polish translation to understand and verify the truthfulness and accuracy of the charges and allegations against the defendant attributed to him. Therefore, for the reasons explained ante, the People are charged the entirety of this adjournment period, excluding the{**58 Misc 3d at 599} arraignment date. (See People v Stiles, 70 NY2d 765, 767 [1987].) This is a 67-day time period.

The Adjournment from October 12 to December 6, 2016

In court on October 12, 2016, a motion schedule was set and the matter was adjourned for decision. The People are conservatively charged 0 days of this time period. (See CPL 30.30 [4] [a].)^[FN2]

The Adjournment from December 6, 2016, to February 8, 2017

In court on December 6, 2016, the People announced that they were ready for trial. However, as the People had yet to convert the accusatory instrument to an information by filing a CoT this statement is deemed illusory for the reasons explained ante. However, off-calendar on January 26, 2017, the People filed and served a superseding information that included a CoT and a CoR. Accordingly, the People are charged from December 6, 2016, to January 26, 2017, a 51-day time period.

The Adjournment from February 8 to April 13, 2017

In court on February 8, 2017, the People announced that they were not ready for trial as they desired to obtain relevant medical records. The matter was adjourned to April 13, 2017, for trial. The day after this court appearance the People received the desired documents and filed a CoR. As such, they are charged one day of this adjournment period.

The Adjournments from April 13 to June 14, 2017; June 14, 2017, to October 20, 2017; and October 20 to November 30, 2017^[FN3]

In court on April 13, 2017, the defendant filed and served the instant 30.30 motion which has remained sub judice ever since.{**58 Misc 3d at 600} Accordingly, these adjournment periods are excludable. (See CPL 30.30 [4] [a].)

[*6]Total Number of Chargeable Days

A total of at least 119 (67+0+51+1+0) chargeable days have elapsed since the commencement of this criminal action, more than the 90 days allotted pursuant to CPL 30.30 (1) (b). Accordingly, the defendant's motion to dismiss the information on statutory trial readiness grounds is granted.

Further, it is ordered that sealing of this case be stayed for 30 days.