People v. Honshj
| Decision Date | 09 March 1998 |
| Citation | 671 N.Y.S.2d 934,176 Misc.2d 170 |
| Parties | , 1998 N.Y. Slip Op. 98,180 The PEOPLE of the State of New York, Plaintiff, v. Rafet HONSHJ, Defendant. |
| Court | New York Criminal Court |
Legal Aid Society, Brooklyn (Dennis Murphy, of counsel), for defendant.
Charles J. Hynes, District Attorney of Kings County (Elaine Block, of counsel), for plaintiff.
Is a Complaint deemed sufficiently corroborated and thereby converted into an Information where an AT & T line operator/interpreter is utilized to assist in the interpretation of the Complaint to the complaining witness?
Defendant was arrested on January 4, 1998 and charged with Assault in the Third Degree (PL § 120.00[1] ) and Harassment in the Second Degree (PL § 240.26[1] ). On January 5, 1998, defendant was arraigned on the Criminal Court Complaint and the matter was adjourned to January 9, 1998 for conversion of the Complaint to an Information.
The Criminal Court Complaint provides that Assistant District Attorney (ADA) Julia Silla was informed by Olga Bogdanova that on January 4, 1998, at approximately 4 P.M., inside 3250 Coney Island Avenue, Apt. 6-A, in Kings County
defendant did punch informant about the face and body causing informant to sustain two (2) bruised eyes, swelling to her nose and mouth, a bloody lip, to suffer substantial pain and to be annoyed and alarmed.
On January 9, 1998, the People served and filed the supporting deposition of Olga Bogdanova, which stated, in substance, that Olga Bogdanova had read the accusatory instrument filed in this action and that the facts stated therein are true based upon her personal knowledge. Additionally the supporting deposition contains the following caveat:
False Statements Made in this Document Are Punishable as a Class a Misdemeanor Pursuant to Section 210.45 of the Penal Law
The complainant's signature appears immediately below this warning and the signature is dated 1-8-98. Below the signature is a notation indicating that the complaint and affidavit were translated by AT & T language line interpreter # 1176, Willie Ohanjanin on 1/8/98.
Once the supporting deposition was filed on January 9, 1998, defense counsel objected to the sufficiency of the Information claiming that the notation regarding the AT & T interpreter served to question the validity of the supporting deposition. Defense counsel claimed that without a certificate of interpretation to confirm that the Complaint was properly interpreted in the complainant's native language, without knowing the qualifications of the interpreter and without an indication that the Complaint and affidavit were accurately interpreted the complainant's signature does not remove the allegations in the Complaint from the hearsay category. Thus, defense counsel argued the Complaint remained a hearsay document and that the Complaint was not converted into an Information. This Court found that the Complaint was converted into a jurisdictionally sufficient Information and adjourned this case to January 12, 1998 for open file discovery.
On January 12, 1998, defendant renewed his objections to the sufficiency of the Information. ADA Jonathan Chernow, who was present in Court, swore as an Officer of the Court that he had read the Complaint to the complainant and that he was also on the phone with the AT & T interpreter at the same time. ADA Chernow stated further that the AT & T interpreter was providing the complainant with a simultaneous translation of the Complaint in Russian and that the complainant then signed the supporting deposition in his presence. This Court again found that the Complaint was properly converted into an Information. Defendant then entered a plea of guilty to a reduced charge of attempted assault in the third degree in full satisfaction of the docket and this Court adjourned the matter for sentence. The Court granted defendant leave to renew this application attacking the sufficiency of the Information in writing.
Defendant now moves this Court to set aside its prior ruling which held that the Complaint had been converted into a jurisdictionally sufficient Information and to withdraw his plea in the event that this motion is granted.
Defendant argues that the Information is insufficient because it contains hearsay allegations. Defendant contends that under the circumstances of this case and any case involving an interpretation by a person other that an official Court interpreter the People should be required to file a certification from the person who translated the complaint and that such certification should indicate the interpreter's qualifications to translate accurately and that the complaint was accurately translated. Defendant cites People v. Banchs, 173 Misc.2d 415, 661 N.Y.S.2d 450 (Crim.Ct. Kings Co. 1997) and People v. Lo, 150 Misc.2d 980, 570 N.Y.S.2d 776 (Sup.Ct. N.Y. Co.1991) in support of this proposition. Defendant does not allege that the complainant did not read the accusatory instrument or that the complainant did not sign the supporting deposition. He merely alleges in a conclusory manner that the complainant does not speak or read the English language, that the complainant may not have understood the contents of the Complaint when she signed the supporting deposition and that there is insufficient proof that the complainant understood what was written in the Complaint.
The People contend that the Information meets the facial sufficiency requirements set forth in the CPL. Specifically, they argue that once the complainant signed the supporting deposition and verified that the contents of the Complaint were true based upon her own personal knowledge, the People satisfied their statutory requirements to file a jurisdictionally sufficient Information. The People argue further that the alleged defect, if any, is latent, i.e., not apparent from the face of the instrument and therefore irrelevant to any consideration of the facial and jurisdictional sufficiency of the Information. Additionally, in their affirmation in opposition, the People allege that the complainant, Olga Bogdanova, has some ability to speak and read English and that an interpreter was used merely to insure precision and to facilitate efficiency. 1
Further, without conceding the issue, the People have filed an affidavit prepared by the AT & T interpreter which verifies, under the penalties of perjury, that he had passed proficiency testing in English and Russian in 1991, that he is qualified to provide over-the-phone interpretation services and that on January 8, 1998 he translated accurately pursuant to ADA Chernow's instructions. The People also argue that this affidavit coupled with the complainant's supporting deposition and the sworn statements of ADA Chernow that were made on the record in open Court, remove any doubt as to the circumstances surrounding the signing of the supporting deposition and clearly establish that the allegations in the Complaint were removed from the hearsay category.
A valid and sufficient accusatory instrument is a non-waivable jurisdictional prerequisite to a criminal prosecution. People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872 (1977). In order for an accusatory instrument to be sufficient on its face it must allege "facts of an evidentiary character supporting or tending to support the charge" CPL § 100.15(3); it must provide "reasonable cause to believe that the defendant committed the offense charged" CPL § 100.40(1)(b); and must contain non-hearsay allegations which establish, "if true, every element of the offense charged and the defendant's commission thereof" CPL § 100.40(1)(c). See also, ...
To continue reading
Request your trial
-
People v. Rodriguez-Alas
...a given that the defendant's information alone would have been sufficient to support the instant application (see People v. Honshj , 176 Misc. 2d 170, 175, 671 N.Y.S.2d 934 [Crim. Ct., Kings County 1998] ["defendant's mere speculation that the complainant ‘might’ not have read or understood......
-
People v. Maslowski
...v. Badalov, 42 Misc.3d 1235(A), 2014 N.Y. Slip Op. 50368[U], *3, 2014 WL 1009056 [Crim. Ct., Kings County] ; People v. Honshj, 176 Misc.2d 170, 175–176, 671 N.Y.S.2d 934 [Crim. Ct., Kings County] ).Accordingly, inasmuch as the People were chargeable with a total of 196 days, we agree with t......
-
People v. Rivera
...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 ......
-
People v. Williams
...deposition (see Jackson , 17 Misc.3d at 791, 844 N.Y.S.2d 841 ). Defendant submits no evidence to the contrary (see People v. Honshj, 176 Misc.2d 170, 174, 671 N.Y.S.2d 934 [Crim. Ct., Queens County 1998] [in the absence of a clear indication from the complainant that he or she has not sign......