Defendant is charged with Assault in the Third Degree, in violation of Penal Law (P.L.) section 120.00(1), Attempted Assault in the Third Degree, in violation of P.L. sections 110/120.00(1), Menacing in the Third Degree, in violation of P.L. section 120.15, and Harassment in the Second Degree, in violation of P.L. section 240.26(1). Defendant now moves to dismiss the information on the grounds that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law (C.P.L.) section 30.30(1)(b). The People oppose the motion.

Defendant's motion is based on the premise that the complainant, Shmaya Reichman, does not understand any English, and that without a certificate of translation "affirming that the complainant understood the complaint, and ... that the form notice was properly translated to the complainant by an official interpreter recognized by the court," the supporting deposition signed by the complainant is insufficient to convert the complaint (Defendant's Affirmation, ¶11). In support of his position, defendant cites People v. Camacho, 185 Misc 2d 31 (Crim Ct, Kings County 2000) and People v. Banchs, 173 Misc 2d 415 (Crim Ct, Kings County 1997). Defendant submits that the People should be charged with the 244 days that elapsed from the defendant's arraignment on June 7, 2013, to the date defendant filed the instant motion on January 17, 2014.

The People, relying on Matter of Edward B., 80 NY2d 458 (1992) and People v. Maceda, 40 Misc 3d 1213(A), counter that the issue of whether the defendant required a translator is a latent, rather than facial defect, which does not subject the accusatory instrument to dismissal on facial insufficiency grounds. The People, citing People v. Camacho, supra, further submit that "the court may only begin charging the People time pursuant to C.P.L. § 30.30 after the court has ordered the People to provide an affidavit of translation, and the People have failed to do so [*2]within a reasonable amount of time" (People's Memorandum of Law, p 2). It is the People's position that because they filed and served an affidavit of translation before the court ordered the People to provide one, the People cannot be charged any time pursuant to C.P.L. section 30.30.

Here, the complainant signed a supporting deposition wherein he avers, under the penalty of perjury, that he read the accusatory instrument and that the facts furnished by him are true. Where there is no indication on the face of the instrument that the complainant could not read or understand it," the supporting deposition is not defective and suffices to convert the complaint (see Matter of Shaquana S., 9 AD3d 466, 466-7 [2nd Dept 2004] People v. Maceda, 40 Misc 3d 1213[A], *2 [Crim Ct, Queens County 2013]).

However, where there is evidence presented to a court sufficient to challenge the legitimacy of the complainant's verification, the court's jurisdiction is no longer assured and an inquiry must be undertaken to determine whether the complaint was properly converted (Camacho, 185 Misc 2d at 35-36, citing People v. Case, 42 NY2d 98 [1977] People v. Honshj, 176 Misc 2d 170, 174 [Crim Ct, Kings County 1998], citing People v. Vasquez,NYLJ 11/25/94, at 32, col 1 [App Term, 2nd Dept 1994] and People v. Darryl K., NYLJ 7/7/1993, at 24, col 6 [App Term, 2nd Dept], lv den sub nom People v. Khan, 82 NY2d 721 [1993]). In such instances, the court may order the People to file a certificate of translation (see Camacho, 185 Misc 2d at 35-36; Banchs, 173 Misc 2d at 418).

In People v. Camacho, which both sides have cited in their respective papers, the court was presented with a similar issue. During the pre-trial stages of Camacho, defense argued that without a certificate of translation, the supporting deposition of the complainant, who did not read English, was insufficient to convert the complaint into an information. Five months after the supporting deposition was signed, the People submitted an affirmation from an assistant district attorney which stated that on the date the supporting deposition was signed, the assistant translated the complaint into Spanish for the complainant, explained to the complainant the meaning and legal consequences of signing the supporting deposition, and that the complainant signed the supporting deposition in the assistant's presence. The defense moved to dismiss the accusatory instrument on speedy trial grounds alleging that the certificate of translation, which was needed to properly convert the complaint into an information, was filed after the speedy trial time had expired.

The court in Camacho held that once the legitimacy of a supporting deposition is called into question, "[t]he People should be allowed a reasonable period of time ... to file and serve the certificate [of translation]" (Camacho, 185 Misc 2d at 36). The court found that the certificate of translation later filed in the case established that the complainant understood the complaint and [*3]supporting deposition before he signed the supporting deposition. In denying the defendant's speedy trial motion, the court reasoned that "if the court finds that the complaint and supporting deposition were adequately translated, then the court must conclude that the complaint was properly converted at the time of service and filing of the signed supporting deposition" (id.).In this matter, the latent defect regarding this complainant's inability to read, speak or understand English was not brought to the court's attention until January 17, 2014, when the defendant filed the instant motion. On that same date, the People filed a certificate of translation signed by the complainant's wife ^[FN1] wherein she avers, under the penalty of perjury, that she is fluent and literate in the languages of English and Hebrew, that on June 17, 2013, the date the complainant signed the supporting deposition, she translated the accusatory instrument and the supporting deposition from English to Hebrew for the complainant, that the complainant understood the meaning of those documents and did not have any questions, and that the complainant then signed the supporting deposition. Although the interpreter's supporting deposition is not dated, it does relate back to the date on which the supporting deposition was signed and the translation took place. The absence of a date is therefore not fatal (cf. People v. Concepcion, 36 Misc 2d 551, 554 [Crim Ct, NY County 2012] [undated supporting deposition, properly subscribed and verified, is sufficient to convert complaint as "neither C.P.L. §§ 100.20 or 100.30 require that a valid supporting deposition bear the date it was subscribed and verified").

The court finds that the certificate of translation confirms that before signing the supporting deposition, the complainant was read the complaint and the supporting deposition and understood both documents. Accordingly, the information is jurisdictionally sufficient (see Camacho, 185 Misc 2d at 38). The complaint was properly converted on the date the People filed and served the supporting deposition and the People's statement of readiness, filed together with the supporting deposition, was a valid statement of readiness.

Speedy Trial

In this case, the highest crime charged against the defendant is a class A misdemeanor (see P.L. §120.00). Class A misdemeanors are punishable by a sentence of imprisonment not to exceed one year (P.L. §70.15). Where the defendant is charged with a class A misdemeanor, a motion to dismiss on speedy trial grounds must be granted where the People are not ready for trial within 90 days of commencement of the criminal action (C.P.L. §30.30 [1][b]).

The defendant has the initial burden of showing, through sworn allegations of fact, that there has been an inexcusable delay beyond the time allotted by the statute, in this case 90 days (People v. Santos, 68 NY2d 859, 861 [1986]). Once the defendant has made that showing, the People bear the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss (id.).

Based on a review of the official court file and the submissions of the parties, the court finds as follows:

[*4]June 7, 2013 - July 22, 201319 days

On June 7, 2013, defendant was arraigned on a misdemeanor complaint and released on his own recognizance. The matter was adjourned to July 22, 2013, for a supporting deposition.On June 26, 2013, the People filed with the court and served on defense counsel a supporting deposition accompanied by a Statement of Readiness (SOR).

The People are ready for trial when they communicate their actual readiness in open court or file with the court and serve on defense counsel a certificate of actual readiness (see People v. Kendzia, 64 NY2d 331, 337 [1985]). The People's act in filing and serving an SOR served to toll the speedy trial clock for the remainder of the adjournment (People v. Stirrup, 91 NY2d 434, 440 [1998]).

The People are chargeable, however, with the 19 days preceding their declaration of readiness.

July 22, 2013 - October 9, 20130 days

On July 22, 2013, the matter was adjourned to October 9, 2013, for discovery by stipulation (DBS).

An adjournment for discovery is excludable (C.P.L. §30.30 [4] [a] People v. Dorilas, 19 Misc 3d 75, 76-77 [App Term, 2nd Dept 2008] [time attributable to DBS is excludable] People v. Khachiyan, 194 Misc 2d 161, 166 [Crim Ct, Kings County 2002] [An adjournment for DBS which "is in lieu of motion practice and discovery practice in Kings County" is excludable).

October 9, 2013 - December 12, 20130 days

On October 9, 2013, the People filed and served DBS, and the matter was adjourned to December 12, 2013, for hearings and trial.

The People are entitled to a reasonable adjournment to prepare for hearings and trial once hearings are ordered (see People v. Greene, 223 AD2d 474 [1st Dept], lv den 88 NY2d 879 [1996] People v. Hernandez, 268 AD2d 344 [1st Dept], lv den 95 NY2d 253 [2000] People v. Lucas, 25 Misc 3d 1213[A], [Crim Ct, Kings County 2009]). Accordingly, this entire adjournment is excludable.

December 12, 2013 - January 17, 20147 days

On December 12,2013, the People answered not ready for trial and requested a one-week adjournment. The matter was adjourned to January 17, 2014, for hearings and trial.

When a case is in a post-readiness posture, adjournments that extend beyond the delay requested by the People are not chargeable to the People (People v. Bruno, 300 AD2d 93, 95 [1st Dept 2002], lv den 100 NY2d 641 [2003] People v. Dushain, 247 AD2d 234, 236 [1st Dept], app den 91 NY2d 1007 [1998]). The People are thus only charged with their specific request.

January 17, 2014 - March 6, 20140 days [*5]

On January 7, 2014, the People filed and served a certificate of translation and the defendant filed the instant motion to dismiss the accusatory instrument on speedy trial grounds. The court directed the People to file and serve their response off-calendar by February 7, 2014, and adjourned the matter to March 6, 2014, for decision. An adjournment for motion practice and the period during which defendant's motion is "under consideration by the court" is excludable (C.P.L. §30.30[4][a] see People v. Shannon, 143 AD2d 572, 572-573 [1st Dept], lv den 73 NY2d 860 [1988] [time while speedy trial motion under consideration by court is excludable]).

This shall constitute the decision and order of this Court.

Dated: Brooklyn, New York____________________________

March 6, 2014

JOANNE D. QUIÑONES

J.C.C.