Opinion
CR-044344-18KN
03-01-2019
The PEOPLE of the State of New York, Plaintiff, v. Armando ZAMORA, Defendant.
For the People: Kings County District Attorney's Office by ADA Andrew Lee For Defendant: The Legal Aid Society by Alexis Flyer, Esq.
For the People: Kings County District Attorney's Office by ADA Andrew Lee
For Defendant: The Legal Aid Society by Alexis Flyer, Esq.
Deepa Ambekar, J.
Defendant moves, pursuant to CPL 170.30 (1) (e), to dismiss the accusatory instrument on the ground that he has been denied his right to a speedy trial under CPL 30.30 (1) (b).
In connection with the preparation of this decision, the court reviewed the defendant's Notice of Motion to Dismiss and Affirmation in Support of Motion dated January 23, 2019 and the People's Affirmation in Response to Motion to Dismiss filed on February 5, 2019.
BACKGROUND
Defendant is charged with two counts of Criminal Contempt in the Second Degree ( Penal Law § 215.50 [3] ). The accusatory instrument alleges that on September 18, 2018, the defendant called the complaining witness numerous times and that the complainant recognized the phone number belonged to the defendant. The complaint also alleges that on September 29, 2018, the defendant received multiple text messages from the defendant from the same phone number and the complainant recognized the number as belonging to the defendant. The accusatory instrument further alleges that these actions were in violation of an order of protection issued in Queens County Criminal Court which was in effect until October 22, 2018, which, in pertinent part, directed the defendant to refrain from contacting the complainant.
Following the defendant's arraignment on October 5, 2018, on October 18, 2018, the People filed a statement of readiness. Annexed to the statement of readiness was a supporting deposition for this case, signed by the complaining witness. On the November 27, 2018, court date, the People filed a copy of the underlying order of protection, as well as an "Affirmation Certifying Translation" pertaining to the translation of the accusatory instrument and supporting deposition for the complaining witness from English into Spanish. The body of the affirmation reads as follows:
I, Assistant District Attorney Cindy Horowitz, hereby affirm that I am an employee of the Kings County District Attorney's Office, and further hereby affirm that:
1) I am fluent in the languages of English and Spanish.
2) On October 17, 2018, I translated the accusatory instrument in this action from English into Spanish for informant ALMA MARTINEZ.
3) I then translated the corroborating affidavit from English into Spanish for ALMA MARTINEZ (informant).
4) I asked ALMA MARTINEZ (informant) if she understood the meaning of said documents and she replied that she understood.
5) I asked ALMA MARTINEZ (informant) if she had any questions about the meaning of said documents and she stated that she did not.
6) On the same above-mentioned date, I then observed ALMA MARTINEZ (informant) sign and date the corroborating affidavit.
The affirmation bears the signature of ADA Horowitz. Immediately preceding the signature is the statement "False statements made in this document are punishable as a class A misdemeanor pursuant to Section 210.45 of the Penal Law."
On the November 27, 2018, court date, the People announced their readiness for trial and conceded that they were not ready for trial when the statement of readiness had been filed on October 18, 2018.
ARGUMENTS
The defendant argues that the People have never converted the accusatory instrument into an information because the affirmation certifying translation does not comply with CPLR 2101. Therefore, the People have exceeded the statutory time allowed under CPL 30.30.
In response, the People argue that the supporting deposition alone is sufficient to convert the accusatory instrument, without the affirmation of translation, because the complaining witness does speak English, just not fluently. Additionally, the People argue that if the court determines that a certificate of translation is necessary, the affirmation of translation filed in this case conforms to the requirements necessary for a valid certificate of translation. In the alternative, the People argue that if the court finds the affirmation of translation is insufficient, the People should be afforded the opportunity to file a new certificate of translation. It is noted that the People's response does not address the issue of whether they have exceeded the statutory time allowed under CPL 30.30 for this case.
DISCUSSION
Criminal Contempt in the Second Degree is a misdemeanor which is punishable by a sentence of imprisonment of more than three months. The People, therefore, must announce their readiness for trial within 90 days of the commencement of the criminal action, not including any excludable periods of time ( CPL 30.30 [1] [b] and [4] ).
In calculating time, the court must first calculate the time between the filing of the accusatory instrument and the People's statement of readiness, subtract any time which is excludable and add any post-readiness delays that are attributable to the People and not eligible for an exclusion ( CPL 30.30 ; People v Cortes , 80 NY2d 201, 208 [1992] ).
The defendant was arraigned on October 5, 2018, and the case was adjourned to November 27, 2018, for conversion. As the People were not ready at the time their statement of readiness was filed on October 18, 2018, this entire time period is chargeable to the People (see People v England , 84 NY2d 1, 4 [1994] ). (53 days charged / 53 days total)
Regardless of whether the People were required to file a certificate of translation in order to convert the accusatory instrument, the underlying order of protection, which was necessary to convert the accusatory instrument, was not filed with the court until November 27, 2018.
On November 27, 2018, the People filed a copy of the underlying order of protection and an affirmation certifying translation and announced their readiness for trial. The case was adjourned to December 17, 2018, for Discovery by Stipulation.
The People's argument that a certificate of translation was not required to convert the accusatory instrument is without merit. "[O]nce the court determines that there are sufficient factual indicia to question whether the complaint and/or supporting deposition was adequately translated to a non-English speaking complainant, the court may order, in its discretion, the filing of a certificate of interpretation." ( People v Camacho , 185 Misc 2d 31, 35-36 [Crim Ct, Kings County 2000].) The People's filing of a certificate of translation, without a court directive to do so, is a concession on the People's part that the complainant could not speak or read English sufficiently to review the accusatory instrument and supporting deposition and sign the supporting deposition without the assistance of an interpreter (see People v Hernandez , 47 Misc 3d 51 [App Term, 9th & 10th Jud Dist 2015] ). Accordingly, a certificate of translation is necessary in this case to ascertain the legitimacy of the complainant's verification (Camacho at 36).
The defendant's argument that the affirmation filed by the People does not conform with the requirements of CPLR 2101 (b) and therefore did not sufficiently convert the complaint is unavailing. While 22 NYCRR 200.3 applies CPLR 2101 to criminal proceedings, CPLR 2101 (b) requires that "[e]ach 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."
Here, the supporting deposition that was filed, which is sworn to by the complaining witness, is in the English language. Additionally, there are no documents that were filed with the court in a foreign language. "Therefore, based on the plain language of the statute, CPLR 2101 (b) does not apply to the circumstances here." ( People v Espinal , 62 Misc 3d 676, 679 [Crim Ct, Bronx County 2018].)
While the defendant relies on People v Edwards (59 Misc 3d 148[A] [App Term, 1st Dept 2018] ) to support their argument that the certificate of translation in this case must comport with the provisions of CPLR 2101, the decision in Edwards applies to the particular circumstances of that case (id. at *1). In Edwards , the trial court ordered the People to provide an affidavit from the individual who translated the supporting deposition and ordered that the affidavit be in compliance with CPLR 2101, however the prosecution failed to file such an affidavit, despite being given numerous opportunities to do so (id. ). Rather, the prosecution in Edwards filed an unsworn statement that did not state the qualifications of the translator and did not state that the translation was accurate (id. ). Therefore, the Appellate Term, First Department affirmed the trial court's decision, stating that requiring the People to submit the affidavit was an appropriate use of the trial court's discretion and therefore dismissal of the accusatory instrument was appropriate based on the People's lack of compliance with the court's order (id. ).Moreover, the decision in Edwards is devoid of any facts pertaining to the type of supporting deposition filed in that case. For example, the supporting deposition the People attempted to file in Edwards may have been the second page of a Domestic Incident Report, written by the complaining witness in Spanish. A document such as this would bear the heading of ‘Supporting Deposition’ and would be affirmed to under the penalties of perjury but written in a foreign language. If that type of supporting deposition was filed in Edwards , then it is understandable why the Edwards court ruled that CPLR 2101(b) would apply. However, these are not the facts currently before the court and therefore, this court need not decide the merit of this argument.
Moreover, even CPLR 2101 was applicable to the certificate of translation in this case, the defendant's argument would be barred by CPLR 2101 (f). CPLR 2101 (f) states that "[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 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 this case, the People filed and served a copy of the affirmation certifying translation on November 27, 2018. No objection was raised by the defendant regarding the document until the instant motion was filed on January 23, 2019, well after the fifteen days allotted by CPLR 2101 (f). Therefore, even if CPLR 2101 was applicable to this document, the defendant's argument would be time-barred.
Additionally, if CPLR 2101 (b) were to be applicable to a document in English that was translated orally into another language, the affirmation certifying translation in this case would conform to the requirements of CPLR 2101 (b). This is because the affirmation sets forth the qualifications of the interpreter, what was interpreted and the information within the document was attested to under the penalties of perjury.
Here, the affirmation certifying translation was filed without any directive from the court for a supporting deposition that was already in English. The affirmation sets forth that ADA Horowitz is fluent in both English and Spanish, that she translated both the accusatory instrument and supporting deposition to the complainant, who indicated that she understood the translation. Given these facts, the affirmation is sufficient to convert the accusatory instrument (Espinal at 679).
Regarding the defendant's argument that the certificate of translation in this case is not in affidavit form, if CPLR 2101 (b) were to apply to the certificate of translation, so would CPLR 2106. CPLR 2016 states that "[t]he statement of an attorney admitted to practice in the courts of the state ... when subscribed and affirmed to him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit." Although it is not attested within the certificate of translation, the court takes judicial notice that ADA Horowitz is an attorney duly admitted to practice law in the State of New York since 2015 (see Siwek v Mahoney , 39 NY2d 159, 163 n2 [1976] [a court is permitted to take judicial notice of public records, including information culled from them] ). Therefore, she may sign an affirmation in lieu of an affidavit.
Moreover, even if the affiant was not an attorney admitted to practice in New York State, an affirmation certifying the translation of an accusatory instrument and supporting deposition would still be sufficient.
[T]he form notice [that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the Penal Law ] provides greater practical assurances against misstatements of fact than the more routine and mechanical procedure of swearing before a notary or some other official authorized to take an oath, because the form notice alerts the subscriber thereto of the real and significant possibility of criminal prosecution should the informant be proven false.
( People v Charvat , 8 Misc 3d 13, 15 [App Term, 2d Dept 2005] ; see also People v Sullivan , 56 NY2d 378, 383-384 [1982].) "In short, the form notice authorized by section 210.45 of the Penal Law is more than adequate procedural safeguard against the rendition of perjury. Although perhaps less formal in nature than the more traditional methods of verification, a statement containing such a warning is, practically as well as theoretically, no different than a statement under oath." (Sullivan at 384.)
Accordingly, the accusatory instrument was converted to an information on November 27, 2018, when the People filed a copy of the underlying order of protection and the affirmation certifying translation and announced their readiness in court. Therefore, the entire adjournment period from November 27, 2018, to December 17, 2018, is excludable. (0 days charged / 53 days total)
On December 17, 2018, the case was on for Discovery by Stipulation. The People served a copy of the discovery materials with defense counsel and the matter was adjourned to January 23, 2019, for hearings and trial. Discovery by Stipulation "is the functional equivalent of pre-trial discovery and motion practice" and therefore is an excludable adjournment pursuant to CPL 30.30 (4) (a) ( People v Dorilas , 19 Misc 3d 75, 77 [App Term, 2d and 11th Jud Dist 2008] ). Accordingly, this adjournment period is excludable. (0 days charged / 53 days total)
On January 23, 2019, the matter was on for hearings and trial. However, the defendant filed and served the instant motion in court and a motion schedule was set. The case was adjourned to March 1, 2019, for the court's decision. This time period is excludable for motion practice ( CPL 30.30 [4] [a] ). (0 days charged / 53 days total)
Accordingly, the People are charged with 53 days. Since the People have not exceeded the 90-day time frame set forth in Criminal Procedure Law section 30.30, the defendant's motion to dismiss is denied.
CONCLUSION
For the foregoing reasons, the affirmation certifying translation filed in this case contains sufficient information. Combined with the supporting deposition and underlying order of protection which were filed, these documents properly convert the accusatory instrument into an information. The People are therefore charged with 53 days. As the People have not exceeded the 90-day time frame set forth in Criminal Procedure Law section 30.30, the defendant's motion to dismiss is denied.
This constitutes the decision and order of the court.