Defendant's Motion to Dismiss Pursuant to CPL 30.30.

Defendant is charged with Assault in the Third Degree, PL 120.00(1), Menacing in the Third Degree, PL 120.15, and Harassment in the Second Degree, PL 240.26(1), all stemming from an incident in which Defendant allegedly threw the complaining witness on the ground and repeatedly punched her with a closed grip about her face and body.

Defendant moves to dismiss this action alleging that more than 90 days have elapsed since Defendant was arraigned and the People are not ready for trial. The court denies this motion.

The determination hinges on whether the People converted the complaint to an information when they filed a corroborating affidavit of the complaining witness who, it later turned out, did not read or speak English.

When the People filed the corroborating affidavit in court Defense counsel questioned whether the complaining witness could understand English. Defense's query was based on the fact that Defendant required an interpreter for the proceedings. Defendant indicated that if the People used an interpreter, a certificate of translation would have to be attached to the corroborating affidavit to make it sufficient under CPL 100.40. (Minutes, p.2, 12/13/06). The court stated that it would note that Defendant was "curious," but did not order a certificate of translation and the matter was adjourned for discovery by stipulation at Defendant's request. Id.

On the adjourned date the People filed both discovery and a certificate of translation. Defendant argues that the entire time between the filing of the initial corroborating affidavit and the filing of the certificate of translation (28 days) is chargeable to the People. The court disagrees. [*2]

CPL 100.40(1)( c) states that:

An information, or a count thereof, is sufficient on its face when...

(a) it substantially conforms to the requirements prescribed in section 100.15; and

...

( c) Non-hearsay allegations of the factual part of the information and/or of

any supporting depositions establish, if true, every element of the offense

charged and the defendant's commission thereof.

In People v. Flores, 189 Misc 2d 665, 735 N.Y.S. 2d 923 (Crim. Ct. Queens County 2001), a case involving the facial sufficiency of a corroborating affidavit filed by a non-English speaking witness, the court stated that "when presented with what appears on its face to be an adequately corroborated misdemeanor information, the court bases its determination of the facial sufficiency of the instrument before it....the court has no occasion or opportunity to look behind an ostensibly converted complaint and detect hidden defects, such as that the complainant may not have understood what she was signing." It is noted that in Flores the fact that the complaining witness did not understand English was not raised until the matter was at trial.

Conversely, if, during the pre-trial stage 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. People v. Banchs, 173 Misc 2d 415, 661 N.Y.S. 2d 450 (Crim. Ct. Kings County 1997) Under these circumstances the court should order a certificate of translation to convert the complaint to an information. Id.

However, absent a definitive showing that the complainant does not understand English, courts have held that complaints are properly converted without certificates of translation when defendants merely speculate that the complaining witness does not comprehend English. People v. Honshj, 176 Misc 2d 170, 671 N.Y.S. 2d 934 (Crim. Ct. Kings County 1998); People v. Allen, 166 Misc 2d 916, 637 N.Y.S. 2d 644 (Crim. Ct. Kings County 1996).

In the instant case, the court was not presented with uncontroverted information regarding the complaining witness' linguistic ability; Defendant merely indicated that he was "curious" about the complainant's English language skills. Therefore, the People should not be charged retroactively from the time they served and filed the certificate of translation through the time Defendant first questioned the reliability of the supporting deposition which appeared to be sufficient on its face. People v. Camacho, 185 Misc 2d 31, 711 N.Y.S. 2d 283 (Crim. Ct. Kings

County 2000). The People cannot be charged with a defect that was not factually revealed prior to the filing of the certificate of translation. Id. [*3]

Based on the foregoing, the court finds that only 81 days are chargeable to the People, and therefore denies Defendant's motion to dismiss pursuant to CPL 30.30.

Dated: April 18, 2007

__________________________

EILEEN N. NADELSON, J.C.C.