People v. Rodriguez-Alas

• Decision Date: 02 October 2019
• Docket Number: 2019BX006360
• Citation: 110 N.Y.S.3d 814,65 Misc.3d 914
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Walter RODRIGUEZ-ALAS, Defendant.
• Court: New York Criminal Court

65 Misc.3d 914

110 N.Y.S.3d 814

The PEOPLE of the State of New York, Plaintiff,

v.Walter RODRIGUEZ-ALAS, Defendant.

2019BX006360

Criminal Court, City of New York.

Decided on October 2, 2019

For the People: Darcel D. Clark, District Attorney, Bronx County by Charles V. DeJoie III, Assistant District Attorney

For Defendant: The Bronx Defenders by Edie Joseph, Esq.

Shahabuddeen Ally, J.

The defendant is charged with assault in the third degree (PL § 120.00[1] ), criminal obstruction of breathing or blood circulation (PL §§ 121.11[a] and [b] ), endangering the welfare of a child (PL § 260.10[1] ), and harassment in the second degree (PL § 240.26[1] ). He now moves this court to dismiss the accusatory instrument on the ground that he has been denied his statutory right to speedy trial under C.P.L. § 30.30[1][b] as well as his federal and state constitutional rights to a speedy trial pursuant to C.P.L. § 30.20(1), P.L. § 170.30(1)(e), and the Sixth Amendment of the United States Constitution. The People oppose.

The court has reviewed the parties' submissions, court documents, and relevant law. For the reasons that follow, the defendant's motion to dismiss is granted .

Procedural History

On March 4, 2019, the defendant was arraigned on a criminal complaint signed by Johana Andreina Ascencio Alvarado and containing allegations from informant Gricelda Alvarado Ramirez. Simultaneously, the People filed and served a supporting deposition from informant Ramirez and stated their readiness for trial. The defendant waived pre-trial motions and the case was adjourned to March 18, 2019 for trial. On each of the next two trial dates (March 18, 2019 and May 6, 2019), the People were not ready for trial and indicated that they would file and serve an off-calendar statement of readiness if and when they became ready. On May 16, 2019, the People filed a statement of readiness with the court.

At the next scheduled court appearance, June 20, 2019, the case was called to the calendar four separate times. On the first call, the People stated not ready for trial, and represented that they had once again lost contact with a complaining witness. Upon the court's inquiry, the People specified that the assigned Assistant District Attorney had made telephone contact with a necessary witness on May 15, 2019 but had subsequently failed to reach her on May 28 and June 17. Based on that representation, the court ruled that the People were to be charged the full time from the previous court date. Defense counsel indicated that by her count, the People had thus exceeded their statutory speedy trial time.

At the second call of the case, the parties stood in agreement that should the court's ruling stand, the People would be in excess of their speedy trial time. However, the People maintained their position that the May 16 statement of readiness was filed in good faith and as such, should have tolled the speedy time clock. On that record, the court, sua sponte , dismissed the case pursuant to CPL § 30.30[1][b].

At the third calendar call, the People made an application to restore the case to the calendar in order to provide them an opportunity to respond to a written motion from the defendant, pursuant to People v. Alvarez , 46 A.D.3d 476, 849 N.Y.S.2d 207 (1st Dept. 2007), which the court granted. The assigned Assistant District Attorney, appearing for the first time, made the additional record that the complaining witnesses in the case had been present that morning in his office in response to the People's notice to appear. The assigned Assistant, however, had not been able to convey that new information to the Assistants present in the courtroom during the first two calls. The People represented that despite the presence of the complainants, they were not changing their trial readiness status for the day. The court adjourned the case to July 16, 2019 for motion practice on the speedy trial issue.

Finally, on the fourth calendar call, defense counsel withdrew her request for a motion schedule and requested an adjournment for trial. The People requested the following day for trial, but defense counsel reiterated their request for July 16, 2019 as a trial date. The court adjourned the case to July 16, 2019 for trial.

The parties agree that discovery was served upon the defendant in two parts, the first on May 6, 2019 and the second on June 20, 2019. On July 8, 2019, defense counsel notified the People and the court that based upon her review of the discovery, the defendant was of the position that proper conversion of the complaint to an information required a certificate of translation. On July 16, 2019, the People filed with the court and served upon the defendant two affidavits of translation signed by Wilfredo Izaguirre, one for each complainant. In each affidavit, Mr. Izaguirre states that he is fluent in both English and Spanish, that he is employed as a Spanish interpreter by the Bronx District Attorney's office, and that he interpreted and translated the contents of the criminal court complaint and supporting deposition for each complainant on July 15, 2019. The People asserted their trial readiness on the record.

The defendant filed the instant motion to dismiss on July 16, 2019 and the People filed their opposition on August 1, 2019. With the court's leave, the defendant filed his reply to the People's opposition on August 7, 2019, and the People filed a supplemental response on August 8, 2019.

The Parties' Contentions

The defendant's motion to dismiss is based on two main arguments. First, the defendant argues that the People should be charged for the period between March 18, 2019 and July 16, 2019 despite the People's May 16 statement of readiness. The defendant maintains that the People's May 16 statement of readiness was rendered illusory by the People's subsequent unready status at their next appearance on June 20, 2019. The defendant also challenges the form of the May 16 statement of readiness, arguing that the statement was ineffective in that it failed to specify which complainant had been successfully contacted by the People.

Second, the defendant argues that the People should be charged for the entire period between the defendant's Criminal Court arraignment on March 3, 2019 and July 16, 2019 because the People failed to properly convert the criminal complaint into an information. The defendant claims that material received from the People in discovery provides sufficient indicia that neither complainant is able to speak, read, or understand English, and therefore the complainants were unable to properly verify the accusatory instrument. The defendant thus contends that without affidavits of translation, the instrument did not comply with the requirements of CPL §§ 100.10 and 100.15(1) and remained unconverted.

In response, the People first argue that the defendant's motion to dismiss is untimely as it was filed beyond the forty-five-day limitation laid out by CPL § 255.20. The People further contend that the accusatory instrument and supporting depositions in this case are facially sufficient and thus jurisdictionally valid without certificates of translation. The People also argue that requiring an affidavit of translation for a complainant who speaks and understands English but is unable to read it may constitute impermissible discrimination in violation of the Equal Protection Clause of the United States Constitution and Article I, Section 11 of the New York State Constitution. In the alternative, the People assert that in filing the affidavits of translation of July 16, 2019, they have cured any perceived deficiencies and no further remedy is necessary.

With respect to the May 16 statement of readiness, the People maintain that as the assigned Assistant District Attorney had reestablished contact with the complainants the day before its filing, the statement was made in good faith and thus, should not be deemed illusory, notwithstanding the People's subsequent unready status.

The court finds that the defendant's motion is not time-barred. The court also finds that the People have failed to timely cure a demonstrated latent defect in the accusatory instrument, and thus are beyond their speedy trial allowance pursuant to CPL § 30.30. Accordingly, the defendant's motion to dismiss is granted.

Analysis

Timeliness of the Defendant's Motion

CPL § 255.20 (1) provides, in relevant part, that "all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment." However, the same statute also provides that notwithstanding subsection (1), "[T]he court must entertain and decide on its merits, at anytime before the end of the trial, any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified in subdivision one of this section" ( CPL § 255.20 [3 ] ).

Here, the People argue that the defendant's motion should be barred as untimely as it was filed beyond the forty-five-day period contemplated by CPL § 255.20. The People's position is that because defense counsel could have learned from the defendant whether the complainants' English-language abilities were sufficient to adequately subscribe and verify the accusatory instrument, waiting until over one hundred days after arraignment to first raise the issue does not constitute "due diligence" and thus the defendant has not shown good cause for the delay.

The defendant, on the other hand, asserts that defense counsel became aware that the complainants did not speak, read, or understand English only upon receipt and review of the discovery materials disclosed by the People on May 6, 2019 and June 20, 2019, respectively. While defense counsel does not address what, if...