People v. Hernandez

• Decision Date: 17 February 2015
• Docket Number: 2012-1965 S CR
• Citation: 47 Misc.3d 51,2015 N.Y. Slip Op. 25058,7 N.Y.S.3d 822
• Parties: The PEOPLE of the State of New York, Appellant, v. Carlos HERNANDEZ, Respondent.
• Court: New York Supreme Court — Appellate Term

47 Misc.3d 51

7 N.Y.S.3d 822

2015 N.Y. Slip Op. 25058

The PEOPLE of the State of New York, Appellant

v.Carlos HERNANDEZ, Respondent.

2012-1965 S CR

Supreme Court, Appellate Term, Second Dept., 9 and 10 Judicial Dist.

Feb. 17, 2015.

Thomas J. Spota III, District Attorney, Riverhead (Lauren Tan of counsel), for appellant.

Robert C. Mitchell, Legal Aid Society, Riverhead (Alfred J. Cicale of counsel), for respondent.

PRESENT: IANNACCI, J.P., MARANO and GARGUILO, JJ.

Opinion

Appeal from an order of the District Court of Suffolk County, First District (Paul M. Hensley, J.), dated April 11, 2012. The order granted defendant's motion to dismiss the accusatory instrument.

ORDERED that the order is modified, as a matter of discretion in the interest of justice, by providing that defendant's motion to dismiss the accusatory instrument is granted unless within 60 days of the date of this decision and order the People file and serve the necessary certificates of translation as set forth in the decision herein; in the event the People timely serve and file the certificates, the motion is denied.

On January 29, 2012, the People charged defendant with forcible touching (Penal Law § 130.52 ) based on an inculpatory statement by defendant and the supporting depositions of the victim and two witnesses to the incident. In his statement, defendant expressed his preference to be questioned in Spanish, notwithstanding that he “speak[s] enough English to communicate with [the police],” and, in their depositions, the victim and one of the witnesses acknowledged that they are Spanish-speaking and cannot read or write English. The English language versions of the statements of defendant and the non-English speaking deponents recite that the statements had been translated orally into their native language, and that they had affirmed the truth of the facts set forth in the English versions on that basis.

Defendant moved to dismiss the accusatory instrument, arguing that, absent certificates of translation by the officers who had taken the statements attesting to their competence as translators, the English language versions of the statement of defendant, which contained significant admissions, and the statements of the victim and the witness, who did not understand English, remained hearsay, rendering the accusatory instrument, a purported information, facially defective. Before the motion was decided, the People filed a superseding accusatory instrument, now relying solely on defendant's statement and that of the victim, but without certificates of translation. Defendant filed a second motion to dismiss on the ground raised in the first motion, and, on April 11, 2012, the District Court granted the motion, ruling that both statements were necessary to establish the elements of the offense, and that, absent certificates of translation, the statements remained hearsay. As an independent ground for dismissal, the court found that defendant's statement was uncorroborated, citing CPL 60.50.¹ The District Court denied the People's subsequent motion for leave to reargue and renew, and the People appeal from the April 11, 2012 dismissal order.

While defendant's stated preference to proceed in Spanish, notwithstanding an asserted ability to communicate in English, is arguably insufficient to raise a question as to defendant's ability to affirm the truth of the written English language version of his statement (see People v. Honshj, 176 Misc.2d 170, 671 N.Y.S.2d 934 [Crim.Ct., Kings County 1998] ), the English version recites only that the officer “has read this statement to me in Spanish. Everything [the officer] has read is the truth.” There is no indication that defendant reviewed the written English version for its truth and accuracy (see Matter of Shaquana S., 9 A.D.3d 466, 467, 780 N.Y.S.2d 179 [2004] ). Consequently, a certificate of...