Criminal Court of the City of New York, Bronx County, October 2, 2019

The Bronx Defenders (Edie Joseph of counsel) for defendant.

Darcel D. Clark, District Attorney (Charles V. DeJoie III of counsel), for plaintiff.

The defendant is charged with assault in the third degree (Penal Law § 120.00 [1]), criminal obstruction of breathing or blood circulation (Penal Law § 121.11 [a], [b]), endangering the welfare of a child (Penal Law § 260.10 [1]), and harassment in the second degree (Penal Law § 240.26 [1]). He now moves this court to dismiss the accusatory instrument on the ground that he has been denied his statutory right to a speedy trial under CPL 30.30 (1) (b) as well as his federal and state constitutional rights to a speedy trial pursuant to CPL 30.20 (1), CPL 170.30 (1) (e), and the Sixth Amendment of the United States Constitution. The People oppose.{**65 Misc 3d at 916}

The court has reviewed the parties' submissions, court documents, and relevant law. For the reasons that follow, the defendant's motion to dismiss is granted.

On March 4, 2019, the defendant was arraigned on a criminal complaint signed by Johana Andreina Ascencio Alvarado and containing allegations from informant Gricelda Alvarado Ramirez. Simultaneously, the People filed and served a supporting deposition from informant Ramirez and stated their readiness for trial. The defendant waived pretrial motions and the case was adjourned to March 18, 2019, for trial. On each of the next two trial dates (Mar. 18, 2019, and May 6, 2019), the People were not ready for trial and indicated that they would file and serve an off-calendar statement of readiness if and when they became ready. On May 16, 2019, the People filed a statement of readiness with the court.

At the next scheduled court appearance, June 20, 2019, the case was called to the calendar four separate times. On the first call, the People stated not ready for trial, and represented that they had once again lost contact with a complaining witness. Upon the court's inquiry, the People specified that the assigned Assistant District Attorney had made telephone contact with a necessary witness on May 15, 2019, but had subsequently failed to reach her on May 28 and June 17. Based on that representation, the court ruled that the People were to be charged the full time from the previous court date. Defense counsel indicated that by her count, the People had thus exceeded their statutory speedy trial time.

At the second call of the case, the parties stood in agreement that should the court's ruling stand, the People would be in excess of their speedy trial time. However, the People maintained their position that the May 16 statement of readiness was filed in good faith and as such, should have tolled the speedy time clock. On that record, the court, sua sponte, dismissed the case pursuant to CPL 30.30 (1) (b).

At the third calendar call, the People made an application to restore the case to the calendar in order to provide them an opportunity to respond to a written motion from the defendant, pursuant to People v Alvarez (46 AD3d 476 [1st Dept 2007]), which the court granted. The assigned Assistant District Attorney, appearing for the first time, made the additional record that the complaining witnesses in the case had been present{**65 Misc 3d at 917} that morning in his office in response to the People's notice to appear. The assigned Assistant, however, had not been able to convey that new information to the Assistants present in the courtroom during the first two calls. The People represented that despite the presence of the complainants, they were not changing their trial readiness status for the day. The court adjourned the case to July 16, 2019, for motion practice on the speedy trial issue.

Finally, on the fourth calendar call, defense counsel withdrew her request for a motion schedule and requested an adjournment for trial. The People requested the following day for trial, but defense counsel reiterated their request for July 16, 2019, as a trial date. The court adjourned the case to July 16, 2019, for trial.

The parties agree that discovery was served upon the defendant in two parts, the first on May 6, 2019, and the second on June 20, 2019. On July 8, 2019, defense counsel notified the People and the court that based upon her review of the discovery, the defendant was of the position that proper conversion of the complaint to an information required a certificate of translation. On July 16, 2019, the People filed with the court and served upon the defendant two affidavits of translation signed by Wilfredo Izaguirre, one for each complainant. In each affidavit, Mr. Izaguirre states that he is fluent in both English and Spanish, that he is employed as a Spanish interpreter by the Bronx County District Attorney's Office, and that he interpreted and translated the contents of the Criminal Court complaint and supporting deposition for each complainant on July 15, 2019. The People asserted their trial readiness on the record.

The defendant filed the instant motion to dismiss on July 16, 2019, and the People filed their opposition on August 1, 2019. With the court's leave, the defendant filed his reply to the People's opposition on August 7, 2019, and the People filed a supplemental response on August 8, 2019.

The defendant's motion to dismiss is based on two main arguments. First, the defendant argues that the People should be charged for the period between March 18, 2019, and July 16, 2019, despite the People's May 16 statement of readiness. The defendant maintains that the People's May 16 statement of readiness was rendered illusory by the People's subsequent{**65 Misc 3d at 918} unready status at their next appearance on June 20, 2019. The defendant also challenges the form of the May 16 statement of readiness, arguing that the statement was ineffective in that it failed to specify which complainant had been successfully contacted by the People.

Second, the defendant argues that the People should be charged for the entire period between the defendant's Criminal Court arraignment on March 4, 2019, and July 16, 2019, because the People failed to properly convert the criminal complaint into an information. The defendant claims that material received from the People in discovery provides sufficient indicia that neither complainant is able to speak, read, or understand English, and therefore the complainants were unable to properly verify the accusatory instrument. The defendant thus contends that without affidavits of translation, the instrument did not comply with the requirements of CPL 100.10 and 100.15 (1) and remained unconverted.

In response, the People first argue that the defendant's motion to dismiss is untimely as it was filed beyond the 45-day limitation laid out by CPL 255.20. The People further contend that the accusatory instrument and supporting depositions in this case are facially sufficient and thus jurisdictionally valid without certificates of translation. The People also argue that requiring an affidavit of translation for a complainant who speaks and understands English but is unable to read it may constitute impermissible discrimination in violation of the Equal Protection Clause of the United States Constitution and article I, § 11 of the New York State Constitution. In the alternative, the People assert that in filing the affidavits of translation of July 16, 2019, they have cured any perceived deficiencies and no further remedy is necessary.

With respect to the May 16 statement of readiness, the People maintain that as the assigned Assistant District Attorney had reestablished contact with the complainants the day before its filing, the statement was made in good faith and thus should not be deemed illusory, notwithstanding the People's subsequent unready status.

The court finds that the defendant's motion is not time-barred. The court also finds that the People have failed to timely cure a demonstrated latent defect in the accusatory instrument, and thus are beyond their speedy trial allowance pursuant to CPL 30.30. Accordingly, the defendant's motion to dismiss is granted.{**65 Misc 3d at 919}

Timeliness of the Defendant's Motion

CPL 255.20 (1) provides, in relevant part, that "all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment." However, the same statute also provides that notwithstanding subdivision (1),

"the court must entertain and decide on its merits, at any-time before the end of the trial, [any] appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified in subdivision one of this section" (CPL 255.20 [3]).

Here, the People argue that the defendant's motion should be barred as untimely as it was filed beyond the 45-day period contemplated by CPL 255.20. The People's position is that because defense counsel could have learned from the defendant whether the complainants' English-language abilities were sufficient to adequately subscribe and verify the accusatory instrument, waiting until over 100 days after arraignment to first raise the issue does not constitute "due diligence" and thus the defendant has not shown good cause for the delay.

The defendant, on the other hand, asserts that defense counsel became aware that the complainants did not speak, read, or understand English only upon receipt and review of the discovery materials disclosed by the People on May 6, 2019, and June 20, 2019, respectively. While defense counsel does not address what, if any, information was provided to her by the defendant prior to her review of the discovery, she does lay out clearly which specific items supported her conclusion that the complainants' English-language skills were inadequate: first, Domestic Incident Reports (DIRs) received on May 6, 2019, handwritten by the complainants in Spanish; and second, received on June 20, 2019, 911 recordings revealing a conversation conducted entirely in Spanish; and third, body-worn camera footage showing police officers unsuccessfully attempt to interact with the complainants in English before eventually relying on translations by a bilingual police officer. Defense counsel avers that it was only after reviewing these items that she could reasonably conclude that a certificate of translation was required.

{**65 Misc 3d at 920}[1] While defense counsel certainly had access to information about the complainants through her client, it is not a given that simply because the parties were well-known to each other the defendant would have perfect knowledge of both complainants' English-language skills. It is similarly not a given that the defendant's information alone would have been sufficient to support the instant application (see 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)]). However, the discovery items described by defense counsel—the Spanish-language DIRs combined with the all-Spanish conversations between the complainants, police officers, and the 911 operator—provided defense counsel with a reliable factual basis for her conclusions about the complainants' English-language abilities, which she could not have had prior to the disclosure of the discovery materials. The 18-day period between when defense counsel received the discovery and communicating her position to the People was a reasonable length of time for defense counsel to review and analyze the discovery and then to communicate the defense position to the People. Therefore, this court finds that the defendant has shown good cause for why the instant motion could not have been brought at an earlier date and will consider the defendant's application on its merits.

Latent Defects

Where criminal charges are commenced by way of misdemeanor complaint, the complaint must first be converted into an information that, together with any supporting depositions, (1) alleges facts of an evidentiary character supporting or tending to support the charges, pursuant to CPL 100.15 (3); (2) provides reasonable cause to believe that the defendant committed the offenses charged in the information; and (3) includes nonhearsay factual allegations which, if true, establish every element of the offense charged (see CPL 100.40 [1] [a]-[c]). The People cannot be ready on a facially insufficient or an unconverted misdemeanor complaint (People v Colon, 59 NY2d 921 [1983]).

A criminal complaint that relies on hearsay allegations must be accompanied by "sufficient supporting depositions . . . that remove all hearsay from the complaint and thereby establish a prima facie case against the defendant" (People v Flores, 189{**65 Misc 3d at 921} Misc 2d 665, 666 [Crim Ct, Queens County 2001]). A supporting deposition is "a written instrument accompanying or filed in connection with" a criminal complaint, and

"subscribed and verified by a person other than the complainant of such . . . instrument, and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein" (CPL 100.20).

When a supporting deposition is signed by a witness who has not reviewed the contents of the complaint or who does not speak or read English, it contains hearsay as it does not reflect the witness' statements, but rather "[law enforcement's] interpretation" of the witness' statements (Matter of Edward B., 80 NY2d 458, 463 [1992]). Because such flaws are not apparent from the face of the accusatory instrument itself, they constitute "latent defects," as opposed to the "facial defects" contemplated by CPL 100.40 (id. at 463-464).

Of substantial significance to the validity of an accusatory instrument is whether it was properly "subscribed and verified" by its deponent. "Verification" of a document is akin to the administration of a testimonial oath, whereby a deponent acknowledges that the truthfulness and accuracy of his statement carries legal consequences. The verification procedure need not be overly complex, but may be accomplished through inclusion of "a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument" (CPL 100.30 [1] [d]; see Penal Law § 210.45). But if a deponent is simply told to sign a document "and neither knows nor is made to understand that his signature is the equivalent of an oath, the act has no legal significance even if it had been performed in the presence of a notary or other person legally empowered to administer an oath" (People v Phillipe, 142 Misc 2d 574, 580 [Crim Ct, Kings County 1989]). Thus, "[t]he failure to properly sign and verify an accusatory instrument or supporting deposition therefore cannot be regarded as a mere irregularity curable at any later date, after expiration of the speedy trial period" (id. at 580-581).

In their opposition, the People cite a seminal case on latent defects, Matter of Edward B., which addressed a latent defect{**65 Misc 3d at 922} discovered during the fact-finding stage of a juvenile delinquency proceeding (80 NY2d 458 [1992]). In Edward B., the complainant revealed that she had not actually read or been read the contents of the accusatory instrument before signing it. The Court of Appeals held that this rendered the substance of the instrument hearsay, characterizing it as a "latent deficiency" (id. at 463). However, the Court also held that because the case had progressed beyond the pretrial stages and into the fact-finding stage, the need for the accusatory instrument to comply with sufficiency requirements was no longer compelling, as the witnesses were present and available to testify in person and under oath (id. at 465).

Pretrial, however, courts have held that such latent defects may be addressed by trial courts in their discretion, and may lead to either a court order for the People to file curative documentation or even outright dismissal (People v Camacho, 185 Misc 2d 31, 35-36 [Crim Ct, Kings County 2000]; see also People v Brooks, 63 Misc 3d 158[A], 2019 NY Slip Op 50859[U] [App Term, 1st Dept 2019] [affirming trial court's dismissal where the People failed to submit a proper affidavit of translation]; People v Edwards, 59 Misc 3d 148[A], 2018 NY Slip Op 50787[U] [App Term, 1st Dept 2018] [also affirming trial court's dismissal where the People failed to submit a proper affidavit of translation]; People v Allen, 63 Misc 3d 159[A], 2019 NY Slip Op 50869[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019] [dismissing case where People failed to properly file an affidavit of translation for a Spanish-speaking complainant, opting only to annex it to motion response papers]; People v Hernandez, 47 Misc 3d 51 [App Term, 2d Dept, 9th & 10th Jud Dists 2015] [holding that a trial court may either dismiss based on latent defect or order a certificate of translation to fully convert a misdemeanor complaint to an information]).

If sufficient "unchallenged indicia" are present that call into doubt a deponent's English-language abilities, a court may order, at its discretion, the filing of a certificate of translation (People v Hernandez, 47 Misc 3d 51, 54 [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; see also People v Camacho, 185 Misc 2d 31 [Crim Ct, Kings County 2000]). Whether such indicia exist may be based on the uncontradicted representations of the parties or where the parties are in dispute, after a hearing (People v Camacho, 185 Misc 2d 31, 35-36 [Crim Ct, Kings County 2000]). In cases where the People file a certificate of translation absent a court order, such filing is a concession{**65 Misc 3d at 923} on the People's part of a complainant's inability to speak or read English (People v Zamora, 63 Misc 3d 1208[A], 2019 NY Slip Op 50443[U], *3 [Crim Ct, Kings County 2019]; People v Reyes, 60 Misc 3d 245 [Crim Ct, Queens County 2018]; People v Maslowski, 58 Misc 3d 592, 596 [Crim Ct, Queens County 2017]; see also People v Brooks, 63 Misc 3d 158[A], 2019 NY Slip Op 50859[U] [App Term, 1st Dept 2019]; People v Edwards, 59 Misc 3d 148[A], 2018 NY Slip Op 50787[U] [App Term, 1st Dept 2018]).

The filing of a certificate of translation in such cases "is imperative, because it is based on the court's determination that there is sufficient evidence to question the legitimacy of the complainant's verification, and therefore, the court's jurisdiction is no longer assured" (People v Camacho, 185 Misc 2d 31, 36 [Crim Ct, Kings County 2000]; see also People v Case, 42 NY2d 98 [1977]).

[2] Here, defense counsel, having reviewed discovery materials received by the People, concluded that the complainants in this case were incapable of confirming the veracity and accuracy of the English-language accusatory instrument and supporting deposition without the assistance of a Spanish-language interpreter. Notably, the People do not dispute the defendant's representation, but filed two affidavits of translation before the court had an opportunity to address the issue. The People's filing of the affidavits without contesting the defendant's representation regarding the complainants' English-language skills is an implicit concession that the assistance of a Spanish-language interpreter was necessary (see People v Reyes, 60 Misc 3d 245 [Crim Ct, Queens County 2018]). Accordingly, this court finds that a certificate of translation is necessary in this case to ascertain the legitimacy of the complainants' verification and thus this court's jurisdiction over the case (see e.g. People v Allen, 63 Misc 3d 159[A], 2019 NY Slip Op 50869[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Hernandez, 47 Misc 3d 51 [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). Without a certificate or affidavit of translation, the Criminal Court complaint could not be converted into an information and any subsequent statements of readiness by the People are illusory (People v Reyes, 60 Misc 3d 245 [Crim Ct, Queens County 2018]).

The People have argued in the alternative that in filing the July 16, 2019 affidavits of translation, they have cured any perceived defects and no further remedy is required. Each affidavit is signed by Wilfredo Izaguirre, who attests that (1) he is{**65 Misc 3d at 924} fluent in both English and Spanish; (2) he is able to interpret and translate between these two languages and has experience doing so in the past; (3) he is employed by the Bronx County District Attorney's Office as a Spanish interpreter, meets the requisite qualifications, and was raised with Spanish as his primary language; (4) on July 15, 2019, he interpreted and translated the language in the instant complaint from English to Spanish for the named complainant; (5) he did so accurately, clearly, and completely; and (6) after doing so, the complainant stated that she understood what was interpreted. These affidavits clearly indicate that a qualified interpreter, fluent in both English and Spanish, properly conveyed the contents of the accusatory instrument to both complainants. However, the affidavits indicate that he did so on July 15, 2019, over four months after the documents were originally signed by the complainants.

This may have sufficed, had the affidavits of translation referred back to the complainants' initial signing of the complaint and supporting deposition on March 3, 2019. If the affidavits so indicated, then this court may be assured that on that date, the complainants were given the opportunity to review the documents' contents for their truth and accuracy, and from there conclude that the instrument was properly converted into an information. However, these affidavits indicate only that the contents in the complaint and supporting deposition were translated to the complainants on July 15, 2019. No reference is made to the date of original signing. Without some attestation that on March 3, 2019, the contents of the complaint and supporting deposition were accurately translated from English to Spanish for the complainants to review, this court cannot conclude that the complaint was properly verified and thus that it was a jurisdictionally valid information.^[FN*]

Based on the defendant's uncontradicted representations that the complainants required a Spanish-language interpreter{**65 Misc 3d at 925} to understand and verify the contents of the accusatory instrument and supporting deposition, a certificate or affidavit of translation was a necessary prerequisite to full conversion. Because the People have failed to establish that either complainant reviewed the accusatory instrument for its truth and accuracy on or prior to March 3, 2019, the date on which the complainants signed their respective documents, this court finds that the accusatory instrument was not properly converted to an information on that date.

Speedy Trial Implications

Where, as here, the top count charged in an accusatory instrument is a misdemeanor punishable by up to one year in jail, the People are required to be ready for trial within 90 days of the defendant's arraignment, less any excludable time (CPL 30.30 [1] [b]). The 90-day period commenced with the filing of the accusatory instrument, excluding the day on which the instrument was filed (CPL 1.20 [17]; People v Stirrup, 91 NY2d 434, 437 n 2 [1998]).

Before they may declare readiness for trial, the People must have done "all that is required of them to bring the case to a point where it may be tried" (People v England, 84 NY2d 1, 4 [1994]). At that point, the People are deemed ready for trial only if they have stated their readiness in open court or by written notice to defense counsel and the court (People v Kendzia, 64 NY2d 331, 337 [1985]). However, the People cannot be ready on a facially insufficient or an unconverted misdemeanor complaint (People v Colon, 59 NY2d 921 [1983]).

Once the defendant has alleged that the People have failed to announce their readiness within the statutorily prescribed time period, the People bear the burden of establishing sufficient excludable delay (see People v Berkowitz, 50 NY2d 333, 349 [1980]). The People must identify the statutory exclusions on which they are relying to bring them within the statutory time limit for declaring readiness (see People v Cortes, 80 NY2d 201, 208 [1992]). Further, the People have the burden of making{**65 Misc 3d at 926} a record sufficient to enable the court to make a determination as to each adjournment (id. at 215-216). If the statutorily prescribed period elapses without sufficient excludable time established, the charges at issue must be dismissed upon motion by the defendant (CPL 30.30 [1]; 210.20).

Here, as discussed above, the People have failed to establish that the Criminal Court complaint and supporting deposition were properly verified on the day those documents were signed, March 3, 2019. Because the accusatory instrument was never properly verified, the People never had a fully converted and thus jurisdictionally valid information upon which to state ready. Therefore, any statements of trial readiness by the People prior to July 15, 2019, were illusory and ineffective (see People v Reyes, 60 Misc 3d 245 [Crim Ct, Queens County 2018]).

The People have identified no statutory basis for excludable time during the period from March 4, 2019, the defendant's initial arraignment, to July 16, 2019, the date on which they filed the affidavits of translation and stated their trial readiness on the record.

Based on the foregoing, the court finds the period from March 4, 2019, to July 16, 2019, chargeable to the People pursuant to CPL 30.30. The People are thus charged with a total of 134 days, beyond the statutory limitation. Accordingly, the defendant's motion to dismiss is granted. The court therefore need not reach the remainder of the parties' contentions.