Opinion
No. 2014NY020478.
07-01-2014
The PEOPLE of the State of New York v. Julio ROSARIO, Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by ADA Mary Vitale, for the People. Lawrence P. LaBrew, Esq., for the Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by ADA Mary Vitale, for the People.
Lawrence P. LaBrew, Esq., for the Defendant.
Opinion
STEVEN M. STATSINGER, J.
Defendant, charged under one docket with Assault in the Third Degree and related offenses, and under another with Criminal Contempt in the Second Degree, moves to dismiss both cases. With respect to the Assault case, defendant argues that the Misdemeanor Complaint was never converted. And with respect to the Criminal Contempt case, defendant argues that the defendant lacked notice of the content of the Temporary Order of Protection. For the reasons that follow, defendant's motions are DENIED.
In deciding this motion, the Court has considered defendant's motion papers, the People's opposition and the relevant statutes and cases.?
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Also before the Court is the People's motion to consolidate, which is unopposed. That motion is GRANTED.
Finally, as to each docket, the Court orders a Huntley/Dunaway hearing.
I. FACTUAL BACKGROUND
A. Docket Number 2014NY020478
According to the Misdemeanor Complaint, on March 16, 2014, defendant struck the complainant, Whitney Tavarez, in the fact twice with a closed fist, causing her bleeding, bruising and substantial pain.
B. Docket Number 2014NY020627
According to the Misdemeanor Complaint, on March 17, 2014, a witness saw the defendant in Whitney Tavarez' presence inside of the New York County District Attorney's Office, in violation of the Temporary Order of Protection (“T.O.P.”) in Ms. Tavarez' favor that was entered at defendant's arraignment on Docket Number 2014NY020478 the day before.
B. Legal Proceedings
1. Arraignment for Docket Number 2014NY020478
Defendant, represented by The Legal Aid Society, was arraigned on March 16, 2014, on a Misdemeanor Complaint charging him with two counts of Assault in the Third Degree (Penal Law § 120.00(2) and (2) ), and one count each of Attempted Assault in the Third Degree (Penal Law §§ 110/120.00(2)) and Harassment in the Second Degree (Penal Law § 240.26(1) ). The Court set bail and adjourned the case to March 21 for conversion.
The Court also entered a T.O.P in favor of the complainant, Whitney Tavarez. According to the minutes, the Court told the defendant that “while this case is pending you can't have any contact with Ms. Tavarez, not in person, not over the phone, not electronically. You must stay away from her completely. Do you understand?” Defendant replied, “Yes.” No Spanish interpreter was requested or present at this proceeding.
2. Arraignment for Docket Number 2014NY020627
Defendant was arraigned one day later, March 17, 2014, on a Misdemeanor Complaint charging him with one count of Criminal Contempt in the Second Degree, in violation of Penal Law § 215.50(3). The People filed and served both a Supporting Deposition and the underlying T.O.P., which together converted the Misdemeanor Complaint to an Information.
At this proceeding, defendant was represented by present counsel, assigned pursuant to Article 18–B of the County Law, and a Spanish interpreter was present. According to the minutes of this arraignment, counsel asserted that the defendant “only speaks Spanish,” and that defendant did not understand the proceedings the day before; counsel specifically alleged that defendant “had no knowledge of what the actual contents of the order of protection even meant.” The Court adjourned the case to March 21 to join the underlying case and for the filing of defense motions.
The Court also entered a second T.O.P. in favor of Ms. Tavarez, and explained it to the defendant.
3. Post–Arraignment Proceedings
On March 21, 2014, defendant appeared in Part D on both dockets. With respect to Docket Number 2014NY020478, the People filed and served the Supporting Deposition of Whitney Tavarez, along with an Affidavit of Translation, and the Court deemed the Misdemeanor Complaint an Information. For both cases, the Court set a motion schedule under which motions were due on April 7. The Court adjourned the cases to April 30 for response and decision.
On April 30, 2014, the People filed and served a Motion to Consolidate; defense counsel asked for more time to file motions and to respond to the Motion to Consolidate. The case was adjourned to May 12 for response and decision.
On May 12, 2014, defense counsel was engaged and did not appear; the Court, having learned that the defense had not yet filed motions, precluded motions, and adjourned the case to May 29. On May 29, however, it emerged that defense counsel had filed the instant motions on May 28, and the Court accepted them. The Court adjourned the cases to July 1 for decision. The People responded to defendant's motions on June 12, 2014.
II. DISCUSSION
A. In Docket Number 2014NY020478, the Misdemeanor Complaint was Properly Converted
Defendant moves to dismiss this case, asserting that the Misdemeanor Complaint was not properly converted because Ms. Tavarez did not understand the Supporting Deposition. He claims that neither the Supporting Deposition nor the Misdemeanor Complaint was translated into Spanish for her. The Court holds both that there is no merit to the claim and that, in any event, dismissal would not be the appropriate remedy if there were.
1. The Misdemeanor Complaint, Supporting Deposition and Affidavit of Translation
The Misdemeanor Complaint in Docket Number 2014NY020478, sworn on March 16, 2014, provides that “Whitney Tavarez” informed a police officer that “Ms. Tavarez observed the defendant strike her twice about the face with a closed fist, causing bleeding, bruising, and substantial pain to her nose and mouth.”
The Supporting Deposition, sworn the next day, provides that, “I, WHITNEY TAVAREZ ... have read the attached criminal complaint. The facts in this complaint that are attributed to me are true, and I know these facts from my personal knowledge.” It bears a signature that reads “Whiney Tavarez,” and the following recitation: “False statements are punishable as a Class A misdemeanor pursuant to section 210.45 of the penal law.”
The Affidavit of Translation filed along with the Supporting Deposition bears the same recitation. Sworn and signed by Anzuris Loaiza, it provides:
1. I am fluent in Spanish and English
2. On March 17, 2014, I translated from English to Spanish, the accusatory instrument in [this] action to Whitney Tavarez, who indicated to me that she understood the meaning of that document. I then similarly translated the supporting deposition in the same action to such person, who indicated to me that she understood the meaning of the document.
3. Whitney Tavarez then signed the supporting deposition.
2. The Complainant's Affidavit
In connection with this motion, the defense has submitted an Affidavit from Ms. Tavarez. The Affidavit bears the date of April 30, 2014, and was notarized by defense counsel. The Affidavit, which is in English and is written in longhand, asserts:
I, Whitney Tavarez, do hereby swear that the following facts are true. I, Whitney Tavarez do hereby swear under penalty of perjury that the complaint under Docket No. 2014NY020478 were [sic] never translated into Spanish for me by the District Attorney's Office. I was told to sign a piece of paper, and I did not understand what I was signing. I do not want to go forward with this case, and I will testify for the Defense.
It also bears the following additional language:
Translated from English into Spanish by Ms. Claudia Vargas. An official court interpreter on duty with the New York State Office of Court Administration. I have been certified by the NYS Office of Court of Administration.
3. The Complainant's Affidavit Does Not “Unconvert” the Information
Defendant's assertion that the Information should be dismissed is entirely without merit. Before the Court is a valid, facially sufficient Misdemeanor Complaint, properly converted to an Information by a Supporting Deposition that meets all of the formal requirements of CPL § 100.20 and the verification requirements of CPL § 100.30. Even were the Court to conclude, arguendo, that the Misdemeanor Complaint was not converted, however, dismissal would not be the remedy.
According to CPL § 100.20, a supporting deposition is “is a written instrument accompanying or filed in connection with ... a misdemeanor complaint ..., subscribed and verified by a person other than the complainant of such accusatory instrument, and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein.” “Subscribed” means signed at the end, see, e.g., In re Marques' Will, 123 N.Y .S.2d 877, (Surr Ct Queens Co 1953), while “verified” means sworn to before: (1) the court with which it is filed; (2) a desk officer in charge at a police station or police headquarters or any of his superior officers; (3) the public servant who issued a desk appearance ticket and who is authorized to administer an oath; or (4) a notary public. CPL §§ 100.30(1)(a), (b), (c), (e). Alternatively, the instrument may “bear a form notice that false statements made therein are punishable” as a Class A misdemeanor under Penal Law § 210.45. This, notice, together with the deponent's subscription also constitutes a verification. CPL § 100.30(d).
Here, the Supporting Deposition of Ms. Tavarez meets all of these formal requirements. It is subscribed and verified, and fully corroborates the hearsay allegations in the Misdemeanor Complaint.
It is of absolutely no moment at all, that some six weeks after she signed the Supporting Deposition, Ms. Tavarez claimed that she did not understand what she was signing because the documents were not translated for her. If this claim creates a defect in the Information at all, it is what the Court of Appeals has termed a “latent defect,” and not a facial defect. Matter of Edward B., 80 N.Y.2d 458, 606 N.E.2d 1353, 1355, 591 N.Y.S.2d 962, 964 (1992). And latent defects do not even permit, let alone require, dismissal on facial sufficiency review. Id. See also People v. Allen, 166 Misc.2d 916 (Crim Ct Kings Co 1996) (motion to dismiss denied; under Edward B., latent defect in Information does not affect its facial sufficiency).
Thus, while defendant now questions the accuracy of the Affidavit of Translation that accompanied the Supporting Deposition, this is also an irrelevancy. The Information would be facially sufficient even if there were no Affidavit of Translation at all. The Supporting Deposition is subscribed by Ms. Tavarez and bears a legally proper form of verification. And there is no indication on the face of the Supporting Deposition that she did not read or understand either that document or the underlying Misdemeanor Complaint. “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.” People v. Maceda, 40 Misc.3d 1213(A) (Crim Ct Queens Co 2013). See also In re Shaquanna S., 9 AD3d 466, 780 N .Y.S.2d 179 (2d Dept 2004) (“The supporting deposition, which was verified through the use of a form notice complying with the provisions of CPL 100.30(1)(d), was not defective inasmuch as there was no indication on the face of the instrument that the complainant had not read and understood it or was incapable of doing so.”)
Defendant also complains that the Affidavit of Translation was prepared by an interpreter who is not officially court certified. The Court first notes that there is no factual support for that assertion evident from the face of the document. The Affidavit of Translation merely gives the name of the person who translated the documents and averts to her linguistic proficiency. It does not indicate whether the interpreter either is or is not court certified, and there is no legal basis for looking beyond the face of the document to determine that fact. In any event, even if the interpreter were not court certified, it would not matter. “An official interpreter is not required for a certificate of translation, absent a mandate of the court to that effect.” People v. Badalov, 42 Misc.3d 1235(A) (Crim Ct Kings Co 2014) (collecting cases). Thus, there, the fact that the Affidavit of Translation was prepared by the defendant's wife, who was literate in both English and Hebrew, did not render the Information facially insufficient. Id. The same, obviously, is true here.
The Court concludes by noting that there is nothing in Ms. Tavarez' own Affidavit to undermine the Court's confidence in the facial sufficiency of the Information. Even in her own affidavit, she does not assert that the facts contained in the Misdemeanor Complaint, and corroborated by her own Supporting Deposition, are untrue. She merely complains that, despite the existence of an Affidavit of Translation, they were not translated for her, and that she “does not want to go forward” with the case.
Accordingly, and for these reasons, the Court concludes that this case can move forward to trial; defendant remains properly charged via a facially sufficient Information.
4. Dismissal Would Not Be the Appropriate Remedy.
Finally, the Court notes that even if it were persuaded that the Misdemeanor Complaint were not converted, dismissal would not be the proper remedy: Adjournment for conversion would be. For example, in People v. Rivera, –––Misc.3d –––– 2014WL 2598200 at *4 (Crim Ct N.Y. County, June 9 2014) (Statsinger, J.), this Court concluded that a trademark affidavit did not convert a Misdemeanor Complaint to an Information because the affidavit itself was based on hearsay. But the Court did not dismiss the case; rather it “adjourned [the case] for conversion, subject to the usual CPL § 30.30 time parameters.” Id. at *5. See also People v. Picado, 34 Misc.3d 660, 933 N .Y.S.2d 533 (Crim Ct Queens County 2011). Thus, even if there were any merit at all to defendant's claim, the motion to dismiss would still be denied.
B. There Is no Basis for Dismissing Docket Number 2014NY020627
1. The Information is Facially Sufficient In this docket, defendant is charged with Criminal Contempt in the Second Degree. The People allege that one day after he was arraigned on the other docket and the T.O.P. was entered, defendant accompanied the complainant, Ms. Tavarez, to the District Attorney's Office, in violation of that order. Defendant moves to dismiss, claiming that because there was no Spanish interpreter present at the arraignment on the underlying case, he did not understand that he was required to stay away from Ms. Tavarez. To the contrary, however, the Information is clearly facially sufficient. Whether Mr. Rosario knew about and deliberately violated the T.O.P. are questions for the finder of fact at trial.
In cases where the defendant is charged with violating Penal Law § 215.50(3), the People prove that the defendant's disobedience of a T.O.P. was intentional. The defendant must have known of the order, and it must have been his “conscious objective,” Penal Law § 15.05(1), to violate it. On facial sufficiency review, however, all that is required is that the People plead a prima facie case: the Information must contain “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof.” People v. Kalin, 12 NY3d 225, 228–29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009) (citing People v. Henderson, 92 N.Y2.d 677, 679, 685 N.Y.S.2d 409, 708 N .E.2d 165(1999) and CPL 100.40(1)(c) ).
The Information here is clearly facially sufficient. It alleges that defendant was seen in Ms. Tavarez' presence, and that this conduct violated a valid order of protection that was in effect on the date of the alleged violation. It also alleges that defendant understood the T.O.P. because he signed it. On review for facial sufficiency, the face of the Information is all that is at issue. There is simply no place at this stage to assess defendant's claim that he did not understand the T.O.P., and hence did not deliberately violate it, because there was no Spanish interpreter present at court proceeding where the T.O.P. was entered and explained to him. Whether, and to what extent, defendant understood the T.O.P. are questions for the finder of fact at trial. The motion to dismiss for facial insufficiency is accordingly denied.
2. There Was no Due Process Violation
Since defendant also alleges a due process violation, the Court goes on to note that it is abundantly clear that defendant was not deliberately denied a Spanish interpreter, in violation of his due process rights. A court is only obligated to provide the defendant with an interpreter “once it determines the need therefor.” People v. Dun Chin, 146 Misc.2d 431, 434 550 N.Y.S.2d 778, 780 (Crim Ct N.Y. County 1989). “[W]here ... [a] court is put on notice that a defendant has difficulty understanding or speaking the English language, it must make unmistakably clear to him that he has a right to have a competent translator assist him.” People v.. Navarro, 134 A.D.2d 460, 460, 521 N.Y.S.2d 82, 83 (2d Dept 1987) (emphasis added; internal quotation marks and citations omitted). However, “[w]here, on the other hand, no request for an interpreter has been made and the defendant appears to comprehend the nature of the proceedings and the charges against him, the trial court does not abuse its discretion by proceeding without appointing an interpreter.”Id.
Here, defendant's rap sheet reveals that, prior to the arraignment at which the T.O.P. was entered, defendant had sustained four prior convictions, two of which were for felony offenses, and also had sustained multiple parole violations. At each of those proceedings, defendant was either provided a Spanish interpreter or understood English sufficiently such that one was not needed. Clearly, then, by March 16, 2014, the fifth time defendant had been arraigned, he knew that he had a right to a Spanish interpreter and that one would be provided if he asked. See id. (no abuse of discretion in failing to appoint an interpreter where defendant was “not a novice to the criminal justice system”).
In addition, the record of the March 16 arraignment reflects no request by the defendant or his counsel for an interpreter, and no indication that the defendant did not understand the proceeding. And even now, even while defendant complains that he did not understand the proceeding, he is not demanding that he be re-arraigned in that case. This failing in all likelihood constitutes a waiver. See id. (defendant waived right to interpreter by failing to move to vacate his plea on the ground that no interpreter had been provided).
Finally, at the March 16 arraignment, the Court explained the terms of the T.O.P. to the defendant in English, with no Spanish interpreter present. The Court then asked the defendant if he understood the T.O.P. and the defendant answered, in English, “yes,” and signed the document. Surely if he had not understood what was being said to him he would have answered “no,” or requested an interpreter. See id. (even with no interpreter, defendant “answered the questions addressed to him ... and exhibited an understanding of the nature of the proceedings.”)
Given the above, the Court concludes that the absence of an interpreter at defendant's March 16, 2014, arraignment did not amount to a due process violation.
C. The Unopposed Motion to Consolidate Is Granted
The People have moved to consolidate the two dockets, which defendant does not oppose. Under CPL § 200.20(4), the offenses charged in two indictments can be joined where, as pertinent here, proof of one offense would be material and admissible as evidence in chief at the trial of the other. CPL § 200.20(2)(b). Pursuant to CPL § 100.45(1), these provisions apply to misdemeanor instruments. Here, the Court agrees with the People that consolidating the docket charging the offense that led to the entry of the T.O.P. and that charging a violation of the T.O.P. is appropriate under § 200.20(2)(b). The offenses involve the same victim, occurred only days apart, and evidence of the underlying assault would likely be admissible at a trial on the violation of the T.O.P.
The motion to consolidate is accordingly granted.
D. Huntley/Dunaway Hearing is Ordered
Defendant also moves to suppress certain post-arrest statements. The Court orders a Huntley/Dunaway for each docket.
III. Conclusion
For the foregoing reasons, defendant's motions to dismiss are denied, and the People's motion to consolidate is granted. The Court also orders a Huntley/Dunaway hearing.
This constitutes the Decision and Order of the Court.