Criminal Court of the City of New York, Bronx County, December 17, 2018

The Bronx Defenders, Bronx (Alyssa Work of counsel), for defendant.

Darcel D. Clark, District Attorney, Bronx (Michelle Greaux of counsel), for plaintiff.

The defendant, Herbert Espinal, who stands charged with assault in the third degree, criminal obstruction of breathing or blood circulation, and harassment in the second degree, has moved pursuant to Criminal Procedure Law §§ 30.30 and 170.30 (1) (e) for the dismissal of the above-captioned matter. The basis of the defendant's motion is that the accusatory instrument remains unconverted due to a purported defect in the affidavit of translation, and the People have exceeded their speedy trial time as a result. The court has reviewed the defendant's motion, the People's opposition, the defendant's reply, the defendant's supplemental reply, and the court file. For the reasons set forth below, the defendant's motion is denied.

The defendant was arraigned on a first-party accusatory instrument on February 19, 2018. At arraignment, the People conceded that they needed an affidavit of translation to convert the accusatory instrument and the case was adjourned for conversion.^[FN1] On April 24, 2018, the People filed and served an affidavit of translation along with a statement of readiness. By motion filed on August 15, 2018, 113 days after the People's aforestated readiness, the defendant argues that the accusatory instrument remains unconverted as the affidavit of translation does not comport with the requirements of Civil Practice Law and Rules § 2101 (b).^[FN2] Specifically, the defendant argues that the affidavit of translation fails to state the translator's qualifications and that the translation was accurate.{**62 Misc 3d at 678}

CPLR 2101 states in relevant part the following:

"(b) Language. Each paper served or filed shall be in the English language which, where practicable, shall be of ordinary usage. Where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate. . . .

"(f) Defects in form; waiver. A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregarded by the court, and leave to correct shall be freely given. The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections."

In support of his argument that the affidavit of translation was not sufficient to convert the accusatory instrument, the defendant primarily cites to People v Edwards (59 Misc 3d 148[A], 2018 NY Slip Op 50787[U] [App Term, 1st Dept 2018]). In Edwards, the Appellate Term, First Department, held that

"[i]n the particular circumstances of this case, when the People filed a statement of a translator simultaneously with [a] supporting deposition, they provided indicia of [the complainant's] inability to speak or read English. In the circumstances, Criminal Court providently exercised its discretion in requiring a proper certificate of translation to be produced in order to convert the complaint into an information" (2018 NY Slip Op 50787[U], *1 [citations omitted]).

Although the defendant reads the Appellate Term's holding in Edwards as support for the proposition that in all cases where a witness requires the assistance of a translator, an affidavit of translation must comport with the requirements set forth in CPLR 2101 (b), this court disagrees.

First and foremost, in looking at the plain language of the statute, CPLR 2101 (b) states, "Where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the{**62 Misc 3d at 679} translation is accurate" (emphasis supplied). Here, the accusatory instrument is not an affidavit or exhibit annexed to a paper served nor is it in a foreign language. Rather, it is a first-party complaint sworn to by the complaining witness that is in the English language with nothing annexed to it. Therefore, based on the plain language of the statute, CPLR 2101 (b) does not apply to the circumstances here.

Further, contrary to the defendant's argument, Edwards does not stand for the proposition that CPLR 2101 (b) applies to a first-party accusatory instrument. Notably, in Edwards, the Appellate Term, First Department, specifically limited itself to circumstances where the affidavit of translation was filed along with a supporting deposition and a judge had directed that the People file "a proper certificate of translation," and the People failed to comply with that directive. Simply put, the Edwards court concluded that it was not an abuse of discretion for the court to impose such a requirement where the supporting deposition and affidavit were filed together. By stating, however, that its ruling only applied "[i]n the particular circumstances of this case," the court in Edwards was not holding that an affidavit that comported with CPLR 2101 (b) was required in every case where a translator was used.

Here, the accusatory instrument was a first-party complaint and, as noted, CPLR 2101 (b) does not on its face apply to that circumstance. Indeed, as noted by the People, there is no defect on the face of the instrument and a certificate of translation is not part of the accusatory instrument at all. Further, when the People filed an affidavit of translation, the affidavit stated that the translator was fluent in both English and Spanish, that the contents of the affidavit had been translated in Spanish to the complainant, who had indicated that he understood the translation, and that the translator had also translated the fact that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the Penal Law. This court finds that under these circumstances, the affidavit was sufficient to convert the case, particularly where the defendant waived his right to object by waiting until 90 days had passed to object orally to the affidavit and 113 days had passed before filing a written motion. As stated in CPLR 2101 (f),

"[t]he party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt{**62 Misc 3d at 680} thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections."

In the instant matter, the defendant waited well beyond the 15 days required by statute to interpose any objection (cf. People v Casey, 95 NY2d 354, 367 [2000] [even where there is a hearsay pleading defect in the factual portion of a local criminal court information, a defendant must interpose a timely objection or motion for a court to consider it and the failure to do so constitutes a waiver]). Here, the defendant's failure to raise his argument in a timely manner constitutes a waiver and his argument fails on that ground as well.^[FN3]

For these reasons, the court finds that the accusatory instrument was properly converted when the People filed the affidavit of translation on April 24, 2018, and therefore, the statement of readiness served to stop the speedy trial clock.

CPL 30.30 (1) (b) provides that, where a defendant is charged with one or more misdemeanor offenses, punishable by imprisonment of more than three months, a motion to dismiss pursuant to CPL 170.30 (1) (e)^[FN4] must be granted if the People are not ready for trial within 90 days. In this case, the People have 90 days in which to be ready for trial. The defendant was arraigned on a misdemeanor complaint on February 19, 2018, commencing the action. The first day of the statutory period is excludable (see People v Stiles, 70 NY2d 765, 767 [1987]). The issue of whether the People have satisfied their obligation under CPL 30.30 is determined by (1) "computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness"; (2) "subtracting any periods of delay that are excludable under the terms of the statute"; and then (3) "adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion" (People v Cortes, 80 NY2d 201, 208 [1992]).{**62 Misc 3d at 681}

The court finds that a total of 63 days is chargeable to the People as follows:

February 19, 2018—April 18, 2018

The defendant was arraigned on February 19, 2018. The case was adjourned to April 18, 2018, for conversion, based on the People's concession that they needed to file and serve an affidavit of translation to convert the accusatory instrument. Accordingly, the court finds that during this time period the People are charged with 57 days.

April 18, 2018—May 25, 2018

On April 18, 2018, the People still had not filed an affidavit of translation. The case was adjourned again to May 25, 2018, for conversion. On April 24, 2018, however, the People filed and served an affidavit of translation and statement of readiness off calendar. For the reasons set forth above, the affidavit of translation converted the accusatory instrument and the statement of readiness filed and served on April 24, 2018, stopped the speedy trial clock. Accordingly, the People are charged with six days.

May 25, 2018—July 23, 2018

On May 25, 2018, the People stated that they were ready for trial, and the case was adjourned to July 23, 2018, for trial. The People are not charged for this adjournment. Accordingly, the court finds that during this time period the People are charged with zero days.

July 23, 2018—September 7, 2018

On July 23, 2018, the People stated that they were ready for trial. The defendant was not present on this date due to a family emergency. At this appearance, 90 days after the People filed the affidavit of translation, defense counsel first raised the argument that the complaint was unconverted due to a defect in the affidavit of translation that was filed and served on April 24, 2018. The court stated that such argument must be presented by defense counsel in writing, and the matter was adjourned for trial. As the People maintained their readiness and did not request any time, they are not charged for this adjournment. Accordingly, the court finds that during this time period the People are charged with zero days.

September 7, 2018—October 10, 2018

The defendant filed the underlying, off-calendar motion on August 15, 2018, prior to the date of September 7, 2018, when the case was calendared. On September 7, 2018, the court{**62 Misc 3d at 682} directed the People to respond to the defendant's motion, and the matter was adjourned to October 10, 2018, for decision on the defendant's motion. As this adjournment was for the People's response to the defendant's motion and the court's decision, the People are not charged any time. Accordingly, the court finds that during this time period the People are charged with zero days.

October 10, 2018—December 17, 2018

The People filed and served their response to the defendant's motion on October 2, 2018. Although the defense argues that the People should be charged for part of the time as their response in opposition was filed after the motion schedule set by this court, this court concludes that the delay was reasonable as the defendant raised a complicated issue and the time originally set by the court did not take that into account. Further, after the People filed their response, on October 9, 2018, the defense filed a reply to the People's affirmation in opposition and on October 19, 2018, the defense filed a supplemental reply. The court then needed to review all of the submissions by the parties before deciding the issue. The court concludes that all of this time is excludable as it was necessary for motion practice and the court's decision (see CPL 30.30 [4] [a]). Accordingly, the court finds that during this time period the People are charged with zero days.

In light of the foregoing, the People are charged with a total of 63 days of speedy trial time. Accordingly, the defendant's motion to dismiss pursuant to CPL 30.30 is denied.