DECISION AND ORDER Procedural History The action commenced on February 15, 2019 when an accusatory instrument was filed, and the defendant was arraigned. Defendant is charged with two counts of Robbery in the First Degree (Penal Law §§160.15 (3) and (4)) and other related felony charges, as well as one count of Assault in the Third Degree (Penal Law §120.00 (1)), Menacing in the Second Degree (Penal Law §120.14), Menacing in the Third Degree (Penal Law §120.15), Criminal Possession of a Weapon in the Fourth Degree (Penal Law §265.01), Petit Larceny (Penal Law §155.25) and Harassment in the Second Degree (Penal Law §240.26). On February 28, 2019, the People moved to dismiss all felony charges. Upon reduction, the case was adjourned to Part APY2 in Kings County Criminal Court. By motion filed on July 17, 2019, the defendant moves to dismiss the accusatory instrument for speedy trial violation pursuant to Criminal Procedure Law (CPL) 30.30. The People filed a response on September 18, 2019. For the reasons set forth below, Defendant’s motion to dismiss is denied. Motion to Dismiss for Speedy Trial Violation Pursuant to CPL 30.30(5)(c), when a felony complaint has been reduced to an information or misdemeanor complaint, the period within which the People must be ready for trial is the period applicable to the charges in the new accusatory instrument; the period of which is calculated from the date the new accusatory instrument is filed. Unless, if the aggregate of the chargeable time1 and the period applicable to the new charges exceeds six months, the applicable period is six months or 182 days from the filing of the original instrument. In the instant matter, 12 days of chargeable time had elapsed before the People dismissed the felony counts. Because the aggregate of that chargeable time and the 90-day period applicable to the new charges does not exceed six months, the applicable speedy trial period is 90 days from February 28, 2019 (see CPL 30.30[5][c]). The time elapsed from February 15, 2019 to February 28, 2019 is not included in the speedy trial calculation. The defendant has the initial burden under CPL 30.30 to demonstrate by sworn allegations of fact that there has been an inexcusable delay beyond the time set forth in the statute (People v. Santos, 68 NY2d 859, 861 [1986]). Once the defendant has alleged that more than the statutorily prescribed time has elapsed without a valid declaration of readiness by the People, then the burden shifts to the People to establish the excludability of certain periods (id.; People v. Berkowitz, 50 NY2d 333, 348–349 [1980]). The People must identify the statutory exclusions on which they intend to rely upon to have certain periods excluded (see Berkowitz, 50 NY2d at 349). The burden is on the People to ensure “in the first instance” that the record of the proceedings is sufficiently clear to enable the court deciding the 30.30 motion to make an informed decision as to whether the People should be charged (People v. Cortes, 80 NY2d 201, 215-216 [1992]). Parties’ Contentions: Defendant argues that the case should be dismissed on speedy trial grounds. He contends that the People have failed to meet their CPL 30.30 obligation as approximately 139 days is chargeable to them. Defendant argues that both certificates of translation, which he contends are necessary for conversion, fail to comport with Civil Practice Law and Rules (CPLR) 2101(b). The People counter that the motion to dismiss must be denied as they are charged with 4 days of non-excludable time. The People argue that the certificates of translation are in the proper form; thus, the accusatory instrument has been properly converted. Calculation of Excludable and Includable Time: Based on review of the court file and the submissions of the parties, the Court finds as follows: February 15, 2019 — February 19, 2019 On February 15, 2019, the defendant was arraigned. The case was adjourned to June 4 in Part AP1F for grand jury action. February 19, 2019 The People did not have any information. The case was adjourned to the felony dismissal calendar for August 30. February 28, 2019 — April 15, 2019 On February 28, the People dismissed all felony charges. The felony complaint was replaced by a misdemeanor complaint (see CPL 180.50[3][b]). The People did not have a corroborating affidavit to convert the remaining misdemeanor charges. The case was adjourned to April 15 in Part APY2 for conversion. Off calendar on March 4, the People filed a statement of readiness, supporting deposition2 and certificate of translation. April 15, 2019 — June 5, 2019 The People maintained their readiness. Defendant orally objected to conversion arguing that a certificate of translation was required for the supporting deposition which was written in Spanish. The Court agreed and ruled that the misdemeanor complaint remained unconverted, because the supporting deposition was not in English. The case was adjourned to June 5 for conversion. Off calendar on May 6, the People filed another statement of readiness, an affirmation of translation and the same supporting deposition as previously filed. The affirmation of translation filed in this instance was for the Spanish-written supporting deposition. Defendant argues that the accusatory instrument was still not properly converted since the second certificate of translation fails to comply with the provisions of CPLR 2101(b). Specifically, relying on People v. Edwards, 59 Misc 3d 148(A) [App Term, 1st Dept 2018], Defendant asserts that the certificate of translation is insufficient because it neither states that the translation was accurate nor states the translator’s professional qualifications. Defendant’s argument is unavailing. CPLR 2101(b) states, “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” (see CPLR 2101[b]).3 CPLR 2101(b) applies to the circumstances in this case as the supporting deposition was annexed to the misdemeanor complaint and was written in Spanish. Here, the affirmation by Assistant District Attorney Ivette Reyes certifying an English translation conforms to the requirements of CPLR 2101(b). The affirmation sets forth the qualifications of the translator and the text that was translated; the information provided was attested to under the penalties of perjury. Specifically, the affirmation indicates that ADA Reyes is fluent in both English and Spanish, that she reviewed the supporting deposition previously filed and that the English translation of the supporting deposition is as she specifies in her affirmation. Contrary to the defendant’s contention, a professional interpreter is not required for the filing of a certificate of translation (see People v. Banchs, 173 Misc 2d 415, 418 [Crim Ct, Kings County 1997]; see People v. Camacho, 185 Misc 2d 31, 38 [Crim Ct, Kings County 2000] [permitting an Assistant District Attorney to translate the accusatory instrument and supporting deposition into Spanish]). CPLR 2106 states that “[t]he statement of an attorney admitted to practice in the courts of the state…who is not a party to an action, when subscribed and affirmed by 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” (see CPLR 2106). The Court takes judicial notice that ADA Reyes is an attorney duly admitted to practice law in the State of New York since 2018. Therefore, her signed affirmation has the same effect as an affidavit. The Court finds that the affirmation of translation substantially complies with CPLR 2101(b). Accordingly, the accusatory instrument was converted to an information on May 6, 2019. [67 days charged, 67 total days] June 5, 2019 — July 12, 2019 The People maintained their readiness. Defendant again orally objected to conversion arguing a defective certificate of translation. (see Legal analysis of certificates of translation, supra at 4-5). The Court adjourned the case to July 12 for discovery by stipulation. An adjournment for discovery by stipulation is excludable as a period of delay for the purposes of CPL 30.30 (see CPL 30.30[4][a]; People v. Dorilas, 19 Misc.3d 75 [App Term, 2d Dept, 11th Jud Dist 2008]). [0 days charged, 67 total days] July 12, 2019 — August 28, 2019 The People served and filed discovery. The case was adjourned to August 28 for hearings and trial. The People are entitled to a reasonable excludable adjournment to prepare for pre-trial suppression hearings ordered by the court (see People v. Greene, 90 AD2d 705 [1st Dept 1982]). Defendant filed the instant motion to dismiss off calendar on July 17. [0 days charged, 67 total days] August 28, 2019 — September 26, 2019 A motion schedule was set. People were ordered to file their response by September 12. The case was adjourned for decision on September 26. This period is excludable pursuant to CPL 30.30(4)(a) as a reasonable time for pre-trial motion practice. [0 days charged, 67 total days] Conclusion Accordingly, the Court finds that a total of 67 days of non-excludable delay has elapsed. Therefore, Defendant’s motion to dismiss pursuant to CPL 30.30 is denied. The foregoing constitutes the Decision and Order of the Court. Dated: September 25, 2019 Kings County, New York
