People v. Abidov
| Citation | 74 Misc.3d 34,161 N.Y.S.3d 625 |
| Decision Date | 22 December 2021 |
| Docket Number | 2017-1907 K CR |
| Parties | The PEOPLE of the State of New York, Respondent, v. Khikmat ABIDOV, Appellant. |
| Court | New York Supreme Court — Appellate Term |
New York City Legal Aid Society (Jonathan McCoy and Ronald Zapata of counsel), for appellant.
Kings County District Attorney (Leonard Joblove, Ann Bordley and Julian Joiris of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in an accusatory instrument with assault in the third degree ( Penal Law § 120.00 [1] ), attempted assault in the third degree ( Penal Law §§ 110.00, 120.00 [1] ), menacing in the third degree ( Penal Law § 120.15 ), and harassment in the second degree ( Penal Law § 240.26 [1] ). Defendant appeared for arraignment on June 17, 2016. On June 22, 2016, the People served and filed a statement of readiness dated June 22, 2016, along with a superseding information charging the same offenses, the supporting deposition of the complainant, and a certificate of translation (titled a "Certificate of Interpretation"), all dated June 21, 2016. Insofar as is relevant to the issues raised on appeal, the superseding information, sworn to and executed by an assistant district attorney, stated the following:
The supporting deposition stated in pertinent part:
On January 18, 2017, defendant filed a motion to dismiss on the grounds that the accusatory instrument was duplicitous and lacked specificity, and that he had been denied his statutory right to a speedy trial pursuant to CPL 30.30 (1) (b). The notice of motion indicated that he was also moving to dismiss based on constitutional speedy trial grounds (see CPL 30.20 ); however, the motion contained no arguments with respect thereto. In his motion, and again on appeal, defendant argues that the People failed to file a proper affidavit by the translator pursuant to CPLR 2101 (b) because the filed certificate of translation failed to state the translator's professional qualifications and that his translation was accurate. Therefore, defendant concluded, the People failed to properly convert the misdemeanor complaint and were never ready for trial in this matter. The People opposed the motion, and, by order dated March 1, 2017, the Criminal Court (Carolyn Walker-Diallo, J.) denied defendant's motion.
On May 30, 2017, defense counsel, in defendant's presence, waived prosecution by information and defendant pleaded guilty (Curtis J. Farber, J.) to assault in the third degree, menacing in the third degree, and harassment in the second degree, with a promised sentence of three years’ probation. Defendant was sentenced (Lorna J. McAllister, J.) as promised on September 6, 2017, and has completed his sentence.
On appeal, defendant contends that his speedy trial rights under CPL 30.30 and 30.20 were violated because the People failed to file a certificate of translation that complied with CPLR 2101 (b), and, thus, the People never properly converted the superseding accusatory instrument and all statements of readiness were illusory. As defendant's motion to dismiss did not raise the specific constitutional speedy trial claims he now advances on appeal, those contentions are unpreserved for appellate review (see People v. Jordan , 62 N.Y.2d 825, 477 N.Y.S.2d 605, 466 N.E.2d 145 [1984] ; People v. Cedeno , 52 N.Y.2d 847, 848, 437 N.Y.S.2d 72, 418 N.E.2d 665 [1981] ; People v. Lieberman , 47 N.Y.2d 931, 932, 419 N.Y.S.2d 946, 393 N.E.2d 1019 [1979] ), and we decline to reach them in the interest of justice.
While the judgment of conviction was rendered upon defendant's plea of guilty prior to the enactment of CPL 30.30 (6), we need not decide here whether that subdivision should be applied retroactively since, as set forth more fully below, defendant's CPL 30.30 claim is, in any event, without merit.
Since defendant was charged with violating Penal Law § 120.00 (1), a class A misdemeanor, the People were required to announce their readiness for trial within 90 days of the commencement of the action (see CPL 30.30 [1] [b] ; see also People v. Lomax , 50 N.Y.2d 351, 356, 428 N.Y.S.2d 937, 406 N.E.2d 793 [1980] ). With regard to the sufficiency of an accusatory instrument, it is well settled that, a court does "not look beyond its four corners (including supporting declarations appended thereto)" ( People v. Hardy , 35 N.Y.3d 466, 475, 132 N.Y.S.3d 394, 157 N.E.3d 117 [2020] ; see CPL 100.15 [3] ; 100.40 [1] [c]). A court must "not rely on external factors to create jurisdictional defects not evident from the face of the" accusatory instrument ( People v. Konieczny , 2 N.Y.3d 569, 576, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ). Moreover, "[t]he CPL does not require a certificate of translation, let alone a certificate in any particular form, to create a facially sufficient instrument" ( People v. Slade , 37 N.Y.3d 127, 139, 148 N.Y.S.3d 413, 170 N.E.3d 1189 [2021], citing CPL 100.15 ; 100.40 [1]).
Here, although a certificate of translation was served and filed with the superseding accusatory instrument, it was not referenced or incorporated in the instrument or the supporting deposition, and therefore the certificate of translation cannot be used to create a "facial defect" that is otherwise not apparent on the face of the accusatory instrument and supporting deposition (see Slade , 37 N.Y.3d at 138, 148 N.Y.S.3d 413, 170 N.E.3d 1189 []). Moreover, with respect to defendant's reliance on CPLR 2101 (b) to support his contention, the Court of Appeals made it patently clear that:
( Slade , 37 N.Y.3d at 139, 148 N.Y.S.3d 413, 170 N.E.3d 1189 [internal quotation marks and citations omitted]).
We therefore find that the People properly converted the misdemeanor complaint to an information on June 22, 2016 and that all subsequent adjournments chargeable to the People fell well below the statutory 90-day period.
Defendant's contention that his plea was not entered knowingly, intelligently and voluntarily is unpreserved for appellate review, as defendant raised no objection at the plea proceeding (see CPL 470.05 [2] ), failed to move to withdraw his guilty plea ( CPL 220.60 [3] ), and failed to move to vacate the judgment of conviction pursuant to CPL 440.10. Contrary to defendant's contention, no exception to the preservation rule applies here because defendant was not immediately sentenced after he pleaded guilty and therefore he had ample time to object (see People v. Williams , 27 N.Y.3d 212, 219-223, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] []; cf. People v. Louree , 8 N.Y.3d 541, 838 N.Y.S.2d 18, 869 N.E.2d 18 [2007] []; cf. also People v. Conceicao , 26 N.Y.3d 375, 384, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ).
In any event, defendant pleaded guilty knowingly, intelligently and voluntarily. In People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988), the Court of Appeals held that if a defendant's factual recitation negates an essential element of the crime pleaded to, the court must inquire further to ensure that the defendant understands the nature of the charge and that the plea is intelligently entered (see Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Francis , 38 N.Y.2d 150, 153, 379 N.Y.S.2d 21, 341 N.E.2d 540 [1975] ; People v. Beasley , 25 N.Y.2d 483, 487-488, 307 N.Y.S.2d 39, 255 N.E.2d 239 [1969] ). At the plea proceeding, defendant initially suggested that he lacked the requisite intent as his conduct was justified. However, the Criminal Court subsequently made a sufficient inquiry to determine whether the intent element of assault in the third degree was established, and defendant failed to object to the sufficiency of the further inquiry. Notably, the Criminal Court ad...
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