Opinion
No. 2014KN064047.
03-27-2015
PEOPLE of the State of New York, Plaintiff, v. Liza RIVERA, Defendant.
Brooklyn Defender Services by Anders Nelson, Esq, for Movant/defendant. DA Kenneth Thompson by Gabriel Huertas, ADA, for Respondent.
Brooklyn Defender Services by Anders Nelson, Esq, for Movant/defendant.
DA Kenneth Thompson by Gabriel Huertas, ADA, for Respondent.
Opinion
JOY CAMPANELLI, J.
By motion filed on or about February 17, 2015, defendant Liza Rivera moves for an order pursuant to CPL 30.30 and CPL 170.30 dismissing the counts in the accusatory instrument that charges Assault in the Third Degree (Penal Law–120.00(1), Criminal Mischief in the Fourth Degree (Penal Law § 145.00(1), Attempted Assault in the Third Degree (Penal Law § 110–120.00 [01 ] ), Menacing in the Third Degree (Penal Law § 120.15 ), and Harassment in the Second Degree (Penal Law § 240.26[1] ). In the alternative, defendant moves for a hearing pursuant to People v. Camacho, 185 Misc.2d 31, 711 N.Y.S.2d 283 (Crim Ct, Kings County [2000] ). By oral application made in Court on February 17, 2015, co-defendant Ashley Rivera (Docket No. 2014KN064048) joins in the motion. People filed and served opposition on March 16, 2015, conceding that forty-five (45) days are chargeable to them.
The defendants were arraigned on a misdemeanor complaint on August 22, 2014. The complaint, executed by Detective McKenna on August 22, 2014, alleges that the defendants assaulted the complaining witness and also caused damage to her vehicle. The Detective states that the complaining witness informed him, inter alia, that the defendants punched her in the face and pulled her hair, which resulted in bruises, lacerations and pain, and “to fear further injury.” After reviewing surveillance video, the complaining witness identified the defendants as the same defendants who picked up a bicycle and threw it onto the complaining witness' car. The complainant further informed the detective that she was the owner of the vehicle and that the defendants' actions scratched the hood of the car and shattered its windshield.
The supporting deposition of the complaining witness dated September 24, 2014 states: “I, Liliana Arce, read the accusatory instrument filed in this action. The facts stated in that instrument to be an information furnished by me are true to my personal knowledge.” It also contains in capital letters directly above the complaining witness' signature the following recitation: “False statements made in this document are punishable as a Class “A” Misdemeanor pursuant to Section 210.35 of the Penal Law.”
Defendants seek dismissal of the complaint on the grounds that the supporting deposition required a certificate of translation when it was filed on September 29, 2014, making the People's statement of readiness filed on the same date, “illusory and was not an actual statement of readiness to proceed to trial.” Accordingly, the entire time from September 29, 2014 to the adjourn date of October 15, 2015 was chargeable to the People. Furthermore, defendants later argue that the entire time from the filing of the complaint up to January 14, 2015 (115 days) was chargeable because the People failed to file a certificate of translation.
On January 15, 2015, defendants' counsel were served numerous documents, including Complaint Room Screening Sheets which state that the complaining witness struck one infant Mike Abreu (cousin of the co-defendants), who was on a bicycle. A handwritten statement written in the first person and in Spanish, which discusses driving a vehicle involved in a collision, was also submitted as part of the discovery. Defendants' counsel conclude that the author was “apparently” the complainant. According to the defendants' papers, on January 21, 2015, an investigator from their office spoke to the complainant over the phone, and “upon information and belief, the conversation was in Spanish.”
Defendants conclude that based on the unsigned Spanish statement and a telephone conversation in Spanish with an unidentified investigator, the complaining witness did not speak English. A certificate of translation was never submitted, which rendered the misdemeanor complaint unconverted,' which effectively rendered the intervening no-consent adjournments chargeable to the People (citing People v. Camacho at 36, 711 N.Y.S.2d 283 ).
In opposition, the People argue that any issue of language barrier is a latent defect in a criminal court information which is not a fatal defect that requires the dismissal of the complaint (citing People v. Maceda, 40 Misc.3d 1213(A), 2013 N.Y. Slip Op 51174(U), Crim Ct, Queens County [July 9, 2013], and People v. Camacho, 185 Misc.2d 31, 711 N.Y.S.2d 283 Crim Ct, Kings County, [May 9, 2000] ). The People argue that if the Court follows the People v. Maceda decision, then the People are not required to supply any certificate of translation because the accusatory instrument and supporting deposition set forth facially sufficient informationIn the alternative, if the court were to follow the line of reasoning in People v. Camacho, above, then the People are required to provide certificate of translation only if ordered by the Court.
While the defendants reference in their moving papers an unsigned statement (in Spanish) purportedly prepared by the complaining witness, defendants do not annex such documents to their moving papers .
Although not officially before this court, this court notes that defendants do not reference other documents supplied by the People which carry some indicia of the complaining witness' knowledge of English. Specifically, the Court file contains a New York City Police Department Omniform Systems—Arrest Report which indicates as follows: “Is this person (complaining witness Liliana Arce) not Proficient in English? NO.” Furthermore, a certified copy of the Woodhull Hospital Emergency Department records states the following regarding the patient Liliana Arce:
Primary Language: English
Language Preferred: English
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The supporting deposition is signed, verified and converts the complaint. There is no indication from the plain reading of the complaint and the supporting deposition that the deponent did not read or understand the supporting deposition (People v. Guerrero, 36 Misc.3d 1242[A], 2012 N.Y. Slip Op 51830[U] [Crim Ct, New York County 2012], citing Matter of Shaquana, 9 A.D.3d 466, 467, 780 N.Y.S.2d 179 [2d Dept 2004], Matter of Edward B, 80 N.Y.2d 458,463 [1992], and People v. Honshj, 176 Misc.2d 170, 174, 671 N.Y.S.2d 934 [Crim Ct, New York County 1998].
In reviewing an accusatory instrument for facial sufficiency, the court should give it a fair and not overly restricting reading, so long as the factual allegations of the information give the accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried for the same offense (People v. Casey, 95 N.Y.2d 354, 360[2000] ).
A motion to dismiss an information or misdemeanor complaint (CPL 170.45 ) is governed by CPL 210.45 –Motion to Dismiss Indictment; Procedure.
“If the motion is based upon the existence or occurrence of facts, the motion papers must contain sworn allegations thereof, whether by the defendant or by another person or persons. Such sworn allegations may be based upon personal knowledge of the affiant or upon information and belief, provided that in the latter event the affiant must state the sources of such information and the grounds of such belief. The defendant may further submit documentary evidence supporting or tending to support the allegations of the moving papers” (CPL 210.45[1] ).
As the movant, the initial burden is on the defendant to show that a certificate of translation and/or a hearing is required.
Defendants' arguments are not supported by any proof in admissible form
by a person with personal knowledge. An affidavit should state evidentiary facts rather than conclusions of fact or law (In re Portnow, 253 A.D. 395, 2 N.Y.S.2d 553 [2d Dept 1938] ); (see also OneWest Bank v. Escobar, 46 Misc.3d 587 [2014] citing, inter alia, Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ). Thus, an affidavit made upon information and belief should indicate to the court how affiant either personally had the facts or could have known of the facts as set forth in his affidavit. And unless it can be reasonably inferred from the representations in the affidavit of a person with personal knowledge, it is presumed that the affiant had no personal knowledge. See, e.g. Bova v. Vinciquerra, 139 A.D.2d 797, 526 N.Y.S.2d 671 (3rd Dept 1988). See also OneWest Bank, at 590, 995 N.Y.S.2d 476, noting that all the purported facts in support of the specific relief sought in plaintiff's motion before that court were “set forth merely in an attorney affirmation. It is axiomatic that the affirmation of a party's attorney, standing alone, is insufficient where he or she has no personal knowledge of the alleged facts set forth in support of the motion.” Defendants fail to provide the court an affidavit from someone with personal knowledge of the complaining witness' inability to understand English.
Defendants claim that, because the complainant may have written a statement in Spanish and had a conversation in Spanish with an unknown investigator from the attorneys' office, her knowledge of English was insufficient to read the accusatory instrument. The attorney's affirmation (affirmed upon information and belief) does not represent that he even spoke directly to the unknown investigator. Complainant's command of the English language is not directly addressed either by the unknown investigator or by the attorney. Instead, the attorney then blindly and baldly surmises that “these facts establish that the complainant does not speak English, and requires a Spanish interpreter.”
Pursuant to CPL 210.45(5)(b), the court may deny the motion without conducting a hearing if “[T]he motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations supporting all the essential facts” Defendants' argument that complainant's knowledge of English was insufficient to read the complaint is not supported by proof in admissible form, and is insufficient for this court to determine that a complaining witness' supporting deposition required a certificate of translation, or that a hearing be conducted.
In light of the above, defendants' motion is denied in its entirety.
This constitutes the decision and order of this court.