Criminal Court of the City of New York, Queens County, April 26, 2018

Richard A. Brown, District Attorney (Christopher McClain of counsel), for plaintiff.

The Legal Aid Society (Francis Gibbons of counsel) for defendant.

By written decision dated January 19, 2018, this court granted a defense motion to dismiss the accusatory instrument pursuant to CPL 30.30. The People now move to reargue this court's decision. The defendant has elected to not respond to the People's motion.

On May 23, 2016, the defendant was arraigned in Queens County Criminal Court on charges of forcible touching (Penal Law § 130.52 [1]) and sexual abuse in the third degree (Penal Law § 130.55). At the arraignment, the People filed and served a necessary supporting deposition of the complainant and declared themselves ready to proceed to trial. At a subsequent court appearance, however, the People acknowledged a "need {**60 Misc 3d at 247}to see if [a] cert[ificate] of translation is/was required." (Court action sheet, docket No. 2016QN023251 [Crim [*2]Ct, Queens County, Oct. 24, 2016].)

On the following court date, the prosecutor explained that the accusatory instrument "was translated" into Spanish for the complainant, and the People "still need[ ] to serve [the] certif[icate] of translation." (Court action sheet, docket No. 2016QN023251 [Crim Ct, Queens County, Nov. 14, 2016].) The case was adjourned to December 16, 2016, at which time the People served a certificate of translation signed by Andres Sanchez and a new supporting deposition signed by the complainant, both dated December 15, 2016.

On the certificate of translation, Mr. Sanchez attested, under the penalty of perjury, that he is "fluent in written English and Spanish[;] can translate and interpret accurately" between the two languages; and "fully and accurately" translated the English-written accusatory instrument and supporting deposition prior to the complainant signing the supporting deposition. While he does not say when he translated these documents for the complainant, the complainant's attestation states it occurred on the day the documents were signed, December 15, 2016.

Per her signed supporting deposition, the complainant attested, under the penalty of perjury, that on May 22, 2016, "an officer from the 101st precinct translated the accusatory instrument [and] the supporting deposition to me from English to Spanish." It was only after these documents were translated that she "signed and dated the supporting deposition because the facts stated in [the accusatory instrument] were furnished by me and are true upon my personal knowledge." Additionally, the complainant attested that, on December 15, 2016, "the accusatory instrument [and] the supporting deposition[ ] were translated to me again from English to Spanish," and thereafter she signed the instant supporting deposition.

After the December 16, 2016, court appearance, there were multiple adjournments for a Wade/Dunaway hearing in which either of the parties was not ready to proceed or the parties were ready, but no court part was available to conduct the hearing. Then, on April 25, 2017, the defendant filed a motion to dismiss this case pursuant to CPL 30.30. This motion remained sub judice for several months as the parties filed supplemental briefs in response to questions posed by this court.{**60 Misc 3d at 248}

On January 25, 2018, this court issued a written decision granting dismissal pursuant to CPL 30.30 and explaining that, because

"the People were aware that the complainant required a[n] . . . interpreter to understand and verify the truthfulness and accuracy of the allegations of the English-written accusatory instrument[,] . . . utilization of a translator, confirmed by the filing and service of a valid [certificate of translation], was a necessary prerequisite for conversion of the document to an information." (People v Reyes, Crim Ct, Queens County, Jan. 19, 2018, docket No. 2016QN023251, Gopee, J., slip op at 2-3, quoting People v Maslowski, 58 Misc 3d 592, 598 [Crim Ct, Queens County 2017].)

On February 20, 2018, the People filed the instant motion to reargue, asserting that this court misapprehended facts concerning, and misapplied the law regarding, certificates of translation (hereafter CoT). Specifically, the People argue:

• "Generally, a CoT is not required to deem a complaint an information when the supporting deposition is valid on its face," and "whether a complaining witness understood what he or she was signing" constitutes a "latent defect which does not mandate dismissal" of the accusatory instrument (mot to reargue at 1-2);

• Where a CoT is necessary, it is within "the court's discretion as to whether they [sic] [*3]should grant leave for the People to file a CoT or dismiss the charges outright," and this court should, in its discretion, "allow[ ] the People a reasonable period of time to file and serve proof of translation" (id. at 2); and

• The complainant's December 15, 2016, attestation that the accusatory instrument and the supporting deposition were translated into Spanish for her on May 22, 2016, should be applied retrospectively to satisfy the CoT requirement (see id. at 5).

Each of these arguments is unavailing, and this court grants the People's motion to argue to address them in turn.{**60 Misc 3d at 249}

[1] The People argue that "[t]he ability of a complainant to read or understand the accusatory instrument is a latent defect which does not mandate dismissal" (mot to reargue at 1), and cite Matter of Edward B. (80 NY2d 458 [1992]) in support. This argument betrays the People's misunderstanding of both the Court of Appeals' analysis in Edward B. and this court's reasoning in dismissing the instant case pursuant to CPL 30.30.

In Edward B., the complainant had not written, read or been read the accusatory instrument. Rather, Assistant Corporation Counsel "merely 'explained' its contents to her." (Edward B., 80 NY2d at 461.) The Court of Appeals explicitly "reject[ed] the Appellate Division's assumption that the Assistant Corporation Counsel's actions in editing and revising the complainant's version of events before transcribing it did not render the statements in the deposition hearsay." (Id. at 462-463.) The Court explained that

"[t]he statement contained in the deposition was not the complainant's, but rather was the Assistant's interpretation of what the complainant had told her. Thus, . . . the deposition here was in truth nothing more than . . . hearsay. The fact that . . . the witness in this case actually signed the document does not alter the equation, since . . . she had never read—nor been read—its contents, and thus she never learned what the document actually said." (Id. at 463.)

This court's original dismissal decision on the instant case is wholly consistent with the reasoning of Edward B. This court found that, pursuant to the People's voluntary admission that the complainant required translation to verify the accusatory instrument's truthfulness and accuracy, without proof of such translation (e.g., a CoT), the allegations were hearsay, thus rendering the accusatory instrument unconverted and, consequently, the People's statement of readiness illusory. This court did not, and does not now, find the information to be facially insufficient.

The basis for dismissal—that the CPL 30.30 time allotted to the People to be ready for trial had expired in large part because the allegations of the accusatory instrument were unconverted hearsay, thus preventing the People from being{**60 Misc 3d at 250} validly ready for trial—is not controverted by Edward B. While "latent deficiencies in the accusatory instrument that are revealed during the trial or hearing do not provide a ground for mandatory dismissal" (80 NY2d at 465),^[FN*] the expiration of 30.30 time does mandate dismissal. (See CPL 30.30 [1] ["a motion [*4]made pursuant to paragraph (e) of subdivision one of section 170.30 . . . must be granted where the People are not ready for trial within" the statutorily prescribed period of time (emphasis added)].) Thus, this court's dismissal of the information on trial readiness grounds does not contravene Edward B.

[2] At the defendant's arraignment on May 23, 2016, the People filed a supporting deposition and announced their readiness for trial. On November 14, 2016, the prosecution acknowledged for the first time that they needed to file and serve a CoT. This court reasonably must conclude that if the People had spoken directly with the complainant on or about the defendant's arraignment date, they would have been aware of the language barrier, as well as her need for a bilingual police officer to translate the complaint and supporting deposition. Therefore, the People would have known that a CoT was a necessary prerequisite to making a valid declaration of readiness, and they could have had one signed by the officer and ready to file and serve at the defendant's arraignment or shortly thereafter. Inversely, if the People had not spoken with the complainant, and thus were not aware of the language barrier, then the People could not have been ready for trial when they made the announcement. Either way, the People's statement of readiness on May 23, 2016, at the defendant's arraignment was inaccurate, and this court deems it illusory and invalid.

The People argue that they are entitled to a "reasonable period" to file the CoT. "They are, indeed—90 days." (People v Schneck, 20 Misc 3d 1146[A], 2008 NY Slip Op 51892[U], *1 [Crim Ct, NY County 2008].) Contrary to the People's assertion here, and as explained ante, it would not be "reasonable" to {**60 Misc 3d at 251}exclude the nearly seven-month period between the defendant's May 2016 arraignment and the prosecution's filing and service of the CoT necessary to convert the accusatory instrument to an information. (See People v Clarke, 28 NY3d 48, 52-53 [2016] ["the dominant legislative intent informing CPL 30.30 (is), namely, to discourage prosecutorial inaction"], quoting People v Price, 14 NY3d 61, 62 [2010].)

Importantly, the People point to no statutory basis for excluding the entirety of this seven-month period. In calculating the CPL 30.30 chargeable time, this court did apply statutory exclusions to applicable portions of this time period, e.g., excluding the July 27 to October 24, 2016, adjournment for voluntary early discovery and excluding the October 24 to November 14, 2016, adjournment on consent. (See CPL 30.30 [4] [a] [excluding pretrial motions], [b] [excluding consent adjournments]; People v Dorilas, 19 Misc 3d 75, 76-77 [App Term, 2d Dept, 2d & 11th Jud Dists 2008] [voluntary early discovery is "the functional equivalent of pretrial discovery and motion practice" and thus "falls within the ambit" of CPL 30.30 (4) (a)].) However, the People's argument for a blanket, "reasonable-time" exclusion of this entire time period is unavailing.

[3] In her supporting deposition filed and served on December 16, 2016, the complainant stated that, on May 22, 2016, "an officer from the 101st precinct translated the accusatory [*5]instrument [and] the supporting deposition to me from English to Spanish." The People argue that this December attestation applies nunc pro tunc to May, rendering valid the People's statement of readiness at the defendant's arraignment. However, the complainant's December attestation cannot be applied retrospectively for three reasons.

First, as the People concede, they never filed and served a CoT signed by the allegedly bilingual police officer interpreter from May 2016. (See mot to reargue at 5.) Second, this court cannot accept the attestation of the complainant that the English-written accusatory instrument was properly translated to her. Such acceptance would be illogical, as the complainant{**60 Misc 3d at 252}—who required an interpreter precisely because she does not read English fluently—is in no position to make such a declaration.

Third, this court agrees with the People that it is exceedingly important that an accusatory instrument be translated for a complainant who is not fluent in English. This way, she will have "understood the complaint and supporting deposition when signed to substantiate the allegations . . . ." (Id. at 6.) As this court has pronounced previously,

"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. . . . 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." (Maslowski, 58 Misc 3d at 597.)

However, this court disagrees with the People's assertion that "when the paperwork proving such [translation has taken place] was filed" is of no moment. (Mot to reargue at 6.) Another fundamental aspect of a defendant's due process right is the right to know the status of his or her case. The Court of Appeals explained this in the context of the exceptional circumstances time exclusion pursuant to CPL 30.30 (4) (g):

"[A]lthough not required, the statute's text contemplates that the prosecutor will seek a continuance from the court where the circumstances make it impossible to proceed. The Legislature thus envisioned an approach by which the prosecutor could secure a prior judicial ruling as to exceptional circumstances rather than ask a court to apply the exclusion after the fact. This would ensure that the defendant is kept abreast of the status of his case and the charges pending against him." (Price, 14 NY3d at 64.)

Similarly, and assuming arguendo in the instant case that the police officer properly translated the accusatory instrument and supporting deposition to the complainant in May 2016, the fact remains that no one knew this had happened until seven months later. The People's declaration that it is of no moment that they failed to so inform the court and the defendant regarding whether the complainant understood and agreed{**60 Misc 3d at 253} with the accusations being made against him in her name is discordant with both the defendant's federal and state due process rights and "the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction." (Clarke, 28 NY3d at 52-53, quoting Price, 14 NY3d at 62; see also US Const Amends V, XIV, § 1; NY Const, art I, § 6.)

Because the People's silence on this matter violated this "dominant legislative intent," CPL 30.30 time was properly charged against the People, excepting where statutory exclusions applied, until the accusatory instrument's hearsay defect was cleared, the instrument [*6]was converted to an information and the People validly declared their readiness to proceed to trial.

Accordingly, this court affirms its original decision dismissing the information pursuant to CPL 30.30.