July 9, 2013
The PEOPLE of the State of New York
Eduardo MACEDA, Defendant. No. 2012QN046965.
This decision has been referenced in a table in the New York Supplement.
Tasha Lloyd, for defendant.
ADA Priya Ravishankar, for the People.
ELISA S. KOENDERMAN, J.
The defendant, Eduardo Maceda, is charged with Assault in the Third Degree, Penal Law [" PL" ] § 120.00(1) and Harassment in the Second Degree, PL § 240.26(1).
The defendant moves to dismiss the accusatory instrument on two grounds. First, he contends that the information is defective because it contains hearsay. In sum, he argues that because the complainant's supporting deposition was not filed with an affidavit from a qualified interpreter certifying that he or she accurately translated the misdemeanor complaint to the complainant (a " Certificate of Translation" ), the misdemeanor complaint was improperly deemed an information. Additionally, he asserts that since the People consequently failed to announce their readiness upon a valid accusatory instrument within the requisite 90 day period, he has been denied his right to a speedy trial under Criminal Procedure Law [" CPL" ] § 30.30(1)(b). Contrary to the defendant's contention, the issue of whether the complainant misread or misunderstood the misdemeanor complaint due to a language barrier is a latent defect which does not affect the facial sufficiency of the instrument. Because the supporting deposition is valid on its face, a Certificate of Translation is not required to deem the complaint an information. Consequently, since the non-hearsay factual allegations of the information, accepted as true, establish every element of the offenses charged, the defendant's motion to dismiss for facial insufficiency pursuant to CPL § 170.35(1)(a) is denied. Further, since the People declared their readiness for trial upon a facially sufficient information, and are chargeable with less than 90 days since arraignment, the defendant's motion to dismiss pursuant to CPL § 30.30(1)(b) is denied.
The defendant was arraigned on the misdemeanor complaint on August 31, 2012. The complaint alleges that Lourdes Martinez informed Detective Holmes Canovas that on July 1, 2012, in Queens County, the defendant punched her on the back of the head and face, causing lacerations, bruising and swelling to her head. Off-calendar on September 19, 2012, the People filed and served a supporting deposition from Lourdes Martinez Rojas . The supporting deposition states that " I, Lourdes Martinez Rojas, depose and say that I have read the accusatory instrument in the above-entitled action and that the facts therein stated to be on information furnished by me are true based upon my personal knowledge." The supporting deposition is signed by Lourdes Martinez Rojas above a form notice stating that " false statements made herein are punishable as a Class " A" misdemeanor pursuant to Section 210.45 of the Penal Law." With the supporting deposition, the People additionally filed and served an affidavit from the assigned assistant district attorney swearing that she witnessed an interpreter from AT & T's Language Line Interpretation Service translate the misdemeanor complaint and supporting deposition to Lourdes Martinez Rojas in Spanish over the telephone.
The defendant argues that for the supporting deposition to be valid, the People must submit an affidavit from the AT & T language interpreter attesting to his or her proficiency, qualifications and the accuracy of the translation to the complainant. He relies in part on a position paper issued on February 27, 2009 by the National Association of Judiciary Interpreters and Translators, which recommends that telephone interpretation be used only when " no certified, qualified or language skilled interpreter ... is available in person." He contends that without such an affidavit, the supporting deposition is defective and does not cure the hearsay in the complaint. He claims that the information therefore is facially insufficient, rendering the People's declarations of readiness illusory.
The statutory requirement that a facially sufficient information contain nonhearsay factual allegations establishing every element of the offenses charged assures that the instrument possesses a " measure of reliability" and that a " valid and documented basis" for prosecution exists ( Matter of Jermaine G., 38 A.D.3d 105, 111, 828 N.Y.S.2d 160 [2d Dept 2007] ). Thus, " the limited, albeit important, purpose of the statute is amply served by facial compliance" ( Matter of Edward B., 80 N.Y.2d 458, 465  [emphasis in original] ). Once a facially sufficient accusatory instrument has been filed and " the witnesses are available to describe the case against the accused, in person and under oath," the need for and effect of the statute dissipates ( id. ).
Contrary to the defendant's contention, a Certificate of Translation is not required for the information to be facially sufficient. Moreover, the affidavit of translation filed by the People is superfluous to a determination of facial sufficiency. The supporting deposition comports with the statutory requirements as to form and content ( see CPL § 100.20) and is properly verified ( see CPL § 100.30[d] ). In the supporting deposition, the complainant avers, under penalty of perjury, that she read the complaint and that the facts supplied by her are true. Because there is no indication on its face that the complainant did not read or understand the accusatory instrument, the supporting deposition suffices to convert the complaint to an information ( see Matter of Shaquana, 9 A.D.3d 466, 467, 780 N.Y.S.2d 179 [2d Dept 2004]; People v. Honshj, 176 Misc.2d 170, 174, 671 N.Y.S.2d 934 [Crim Ct, N.Y. County 1998] [where an AT & T line interpreter was used, " in the absence of a clear indication" that the complainant did not read or understand the factual allegations, the supporting deposition was proper and the information was sufficient]; People v. Allen, 166 Misc.2d 916, 921, 637 N.Y.S.2d 644 [Crim Ct, N.Y. County 1996] ).
Because no deficiency is apparent from the face of the information, the purported inability of the complainant to read or understand the accusatory instrument, regardless of the underlying reason, qualifies as a latent defect. A latent defect in an accusatory instrument does not mandate dismissal for facial insufficiency ( see Matter of Edward B., 80 N.Y.2d at 460-461, 591 N.Y.S.2d 962, 606 N.E.2d 1353 [dismissal of juvenile delinquency petition for facial insufficiency not required where the complainant had not read the supporting deposition before signing it since the " hearsay character of ... the supporting deposition [was] not facially apparent" ]; Matter of Steven C., 93 A.D.3d 91, 95, 939 N.Y.S.2d 468 [2d Dept 2012] [juvenile delinquency petition not subject to mandatory dismissal where the face of the petition did not reveal the hearsay defect that the officer who signed the supporting deposition did not witness the defendant commit the offense]; see also Matter of Nelson R., 90 N.Y.2d 359, 362-363  [since juvenile delinquency petition was facially valid, any defect relating to the capacity of the child witness to swear to the supporting deposition was latent and did not mandate dismissal]; cf. Matter of Rodney J., 83 N.Y.2d 503, 507  [where ballistics report failed to indicate that it was signed by the person who tested the gun, juvenile delinquency petition was jurisdictionally defective since " the nonhearsay nature" of the report was " not clear on its face" ] ).
Accordingly, whether the accusatory instrument was properly translated to the complainant so that she was able to understand it is an issue for cross-examination at trial. Because the information is sufficient on its face, the defendant's motion to dismiss on that ground is denied.
STATUTORY SPEEDY TRIAL
Pursuant to CPL § 30.30(1)(b), the People must be ready for trial within ninety (90) days of commencement of a criminal action charging a defendant with a misdemeanor punishable by a sentence of imprisonment of more than three months. Although a criminal action commences when the accusatory instrument is filed, counting for speedy trial purposes starts the following day ( see People v. Stiles, 70 N.Y.2d 765  ).
Whether the People have satisfied their obligation to be ready under CPL § 30.30 is generally determined by calculating the time between the filing of the accusatory instrument and the People's declaration of readiness, then subtracting statutorily excludable periods of delay and finally adding any additional delays that transpire after readiness has been declared when such delays are attributable to the People and are ineligible for any exclusions under the statute ( see People v. Cortes, 80 N.Y.2d 201, 208  ). Although a criminal action commences when the accusatory instrument is filed, counting for speedy trial purposes starts the following day ( see Stiles, 70 N.Y.2d at 765, 520 N.Y.S.2d 745, 514 N.E.2d 1368).
Trial readiness means that " the People have done all that is required of them to bring the case to a point where it may be tried" ( People v. England, 84 N.Y.2d 1, 4  ). Trial readiness is established when " the People have a valid accusatory instrument upon which the defendant may be brought to trial, where the People have complied with their obligation to produce for trial a defendant in their custody, and where the People have complied with all pending proceedings required to be decided before trial can commence" ( People v. Caussade, 162 A.D.2d 4, 8, 560 N.Y.S.2d 648 [2d Dept 1990] ) (internal citations omitted).
After arraignment on August 31, 2012, the case was adjourned to October 24, 2012 for conversion. Off-calendar on September 19, 2012, the People filed and served the requisite supporting deposition with a statement of readiness. Because the People satisfied their statutory obligation by announcing their readiness for trial upon a valid accusatory instrument ( see People v. Giordano, 56 N.Y.2d 524 ; Caussade, 162 A.D.2d at 8, 560 N.Y.S.2d 648), there are nineteen (19) days chargeable to the People for this adjournment.
On October 24, 2012, the case was adjourned to November 28, 2013 for open file discovery to be provided. This adjournment is excludable as a period of delay for discovery by stipulation ( see People v. Thomas, 2010 N.Y. Slip Op 50441 [U] at 1 [App Term, 2nd, 11th & 13th Jud Dists 2010] ). There are zero (0) days chargeable to the People for this adjournment.
On November 28, 2012, the People provided open file discovery and announced ready for trial. The case was adjourned to January 11, 2013 for trial. Once the People have declared their readiness for trial they are not chargeable with any delay in proceeding due to court congestion ( see People v. Chavis, 91 N.Y.2d 500, 502 ; People v. Brothers, 50 N.Y.2d 413, 416  ). There are zero (0) days chargeable to the People for this adjournment.
On January 11, 2013, the People announced not ready and requested two weeks to be ready for trial. The case was adjourned to February 26, 2013 for trial. Once the People have declared their readiness they are chargeable only with delay they have caused which " directly implicates [their] ability to proceed with trial" ( Cortes, 80 N.Y.2d at 210, 590 N.Y.S.2d 9, 604 N.E.2d 71) and are not chargeable with any delay in proceeding due to court congestion ( see Chavis, 91 N.Y.2d at 502, 673 N.Y.S.2d 29, 695 N.E.2d 1110; Brothers, 50 N.Y.2d at 416, 429 N.Y.S.2d 558, 407 N.E.2d 405). There are fourteen (14) days chargeable to the People for this adjournment.
On February 26, 2013, the People announced not ready and requested an adjournment to March 6, 2013 for trial. The case was adjourned to March 25, 2013 for trial. Once the People have declared their readiness they are chargeable only with delay they have caused which " directly implicates [their] ability to proceed with trial" ( Cortes, 80 N.Y.2d at 210, 590 N.Y.S.2d 9, 604 N.E.2d 71) and are not chargeable with any delay in proceeding due to court congestion ( see Chavis, 91 N.Y.2d at 502, 673 N.Y.S.2d 29, 695 N.E.2d 1110; Brothers, 50 N.Y.2d at 416, 429 N.Y.S.2d 558, 407 N.E.2d 405). There are eight (8) days chargeable to the People for this adjournment.
On March 25, 2013, the People announced ready for trial. The defendant announced not ready for trial since he was awaiting receipt of additional medical records . The case was adjourned to April 18, 2013 for trial. Delays occasioned by adjournments which are requested or consented to by the defendant are not chargeable to the People ( see People v. Worley, 66 N.Y.2d 523, 525 ; People v. Kopciowski, 68 N.Y.2d 615, 617  ). There are zero (0) days chargeable to the People for this adjournment.
On April 18, 2013, the People announced ready for trial. The defendant announced not ready for trial since defense counsel required an adjournment to resolve a potential conflict of interest issue regarding her representation of the defendant. The Court directed the People to provide defense counsel with the complainant's date of birth to facilitate resolution of the issue. The case was adjourned to May 9, 2013 for trial. Delays occasioned by adjournments which are requested or consented to by the defendant are not chargeable to the People ( see Worley, 66 N.Y.2d at 525, 498 N.Y.S.2d 116, 488 N.E.2d 1228; Kopciowski, 68 N.Y.2d at 617, 505 N.Y.S.2d 52, 496 N.E.2d 211). There are zero (0) days chargeable to the People for this adjournment.
On May 9, 2013, the People announced ready for trial. Off-calendar on May 8, 2013, the defendant filed and served a motion to compel discovery pursuant to People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961) and People v. Consolazio, 40 N.Y.2d 446, 387 N.Y.S.2d 62, 354 N.E.2d 801 (1976). The Court rendered an oral decision directing the People to comply with their statutory obligation. The defendant again announced not ready for trial. The case was adjourned to May 22, 2013 for trial. Also on May 9, 2013, the defendant filed and served the instant motion to dismiss. Delays occasioned by adjournments which are requested or consented to by the defendant are not chargeable to the People ( see Worley, 66 N.Y.2d at 525, 498 N.Y.S.2d 116, 488 N.E.2d 1228; Kopciowski, 68 N.Y.2d at 617, 505 N.Y.S.2d 52, 496 N.E.2d 211). Moreover, under CPL § 30.30(4)(a), the delay resulting from pretrial motions and the time during which they are under consideration by the court is properly excludable as having been " caused by the defendant for his own benefit" ( Worley, 66 N.Y.2d at 527, 498 N.Y.S.2d 116, 488 N.E.2d 1228). There are zero (0) days chargeable to the People for this adjournment.
On May 22, 2013, the People announced ready for trial. The defendant failed to appear and the Court issued a bench warrant for his arrest. The defendant voluntarily returned to court on June 3, 2013 and the warrant was vacated. Where the defendant fails to appear as required, the period between the issuance of a bench warrant and the defendant's return is excludable ( see CPL § 30.30[c][ii] ).
When the defendant returned to court and the bench warrant was vacated on June 3, 2013, the Court set bail at $1500 insurance company bond or cash. It directed the People to respond to the defendant's instant motion off-calendar by June 17, 2013 and adjourned the matter to July 9, 2013 for decision. While a defendant's pretrial motion is sub judice, that period of delay is excludable regardless of the People's readiness (see People v. Douglas, 209 A.D.2d 161, 162, 617 N.Y.S.2d 765 [1st Dept 1994] ). There are zero (0) days chargeable to the People for this adjournment.
Pursuant to the above analysis, there are forty-one (41) days chargeable to the People to date. Accordingly, the defendant's motion to dismiss pursuant to CPL § 30.30 is denied.
This constitutes the decision and order of the Court.