People v. Slade
| Decision Date | 06 May 2021 |
| Docket Number | No. 28, No. 29,No. 27,27,28, No. 29 |
| Citation | 170 N.E.3d 1189,37 N.Y.3d 127,148 N.Y.S.3d 413 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of New York, Respondent, v. Kenneth SLADE, Appellant. The People of the State of New York, Appellant, v. Kieth Brooks, Also Known as Keith Brooks, Respondent. The People of the State of New York, Appellant, v. Charo N. Allen, Respondent. |
Robert S. Dean, Center for Appellate Litigation, New York City (John L. Palmer of counsel), for appellant in the first above-entitled action.
Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen and Nancy D. Killian of counsel), for respondent in the first above-entitled action.
Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen, Nancy D. Killian and Peter D. Coddington of counsel), for appellant in the second above-entitled action.
Janet E. Sabel, The Legal Aid Society, New York City (Elizabeth Isaacs and Jonathan Garelick of counsel), for respondent in the second above-entitled action.
Timothy D. Sini, District Attorney, Riverhead (Lauren Tan of counsel), for appellant in the third above-entitled action.
Laurette D. Mulry, The Legal Aid Society of Suffolk County, Riverhead (Felice Milani and Edward E. Smith of counsel), for respondent in the third above-entitled action.
In these three appeals, defendants challenge the facial sufficiency of the accusatory instrument filed against them, arguing that participation of a translator in the process of documenting the information from first-party witnesses with limited-English proficiency created a hearsay defect requiring dismissal of the instrument. In the first two cases, applying our well-settled precedent, we hold that no facial defect was evident within the four corners of the accusatory instrument. Moreover, even in the third case where the participation of a translator was documented within the witness's supporting affidavit, we conclude that no additional layer of hearsay was created by the use of a translator and therefore that accusatory instrument too was facially sufficient. Defendants have a right to be prosecuted by an information that meets all statutory requirements, as was the case here, but we decline to impose additional barriers to participation in the process for victims with limited-English proficiency.
Slade assaulted his wife (the victim) at the home they shared and was charged in a misdemeanor complaint with assault in the third degree, a class A misdemeanor, and harassment in the second degree, a violation. The victim, as the deponent, asserted the following in the complaint:
The victim verified the complaint by signing it beneath the form notice stating that false statements made therein were punishable as a class A misdemeanor (see CPL 100.30[1][d] ). In a certificate of translation, prepared on the same day as the complaint, a translator stated that she translated the English-language complaint to the victim, including the form notice, in Spanish and that the victim confirmed to the translator that she understood what was translated.
At Slade's arraignment, the People announced that they were ready for trial, relying on the first-party complaint. However, the People did not file or serve the certificate of translation at that time, only doing so more than two years later upon Slade's request for the document. Slade thereafter moved to dismiss the accusatory instrument on statutory speedy trial grounds, arguing that the People's statements of readiness were illusory because the filing of the certificate was necessary to convert the complaint into an information (see People v. Colon, 110 Misc.2d 917, 920, 443 N.Y.S.2d 305 [Crim. Ct., N.Y. County 1981], reinstated for the reasons stated in Crim Ct opn 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548 [1983] []). Criminal Court denied the motion and, following a bench trial, found Slade guilty of attempted assault in the third degree and harassment in the second degree and imposed sentence.
The Appellate Term affirmed, concluding, as relevant here, that "the first-party complaint signed by" the victim "needed no certificate of translation for conversion to an information, since there was no indication on the face of the instrument that [she] had not read and understood it or was incapable of doing so" ( 63 Misc.3d 161[A], 2019 N.Y. Slip Op. 50893[U], *1, 2019 WL 2402155 [App. Term, 1st Dept. 2019]). A Judge of this Court granted Slade leave to appeal (see 34 N.Y.3d 984, 113 N.Y.S.3d 639, 137 N.E.3d 9 [2019] ).
The People filed an English-language misdemeanor complaint charging Brooks with driving while intoxicated, a misdemeanor, and other Vehicle and Traffic Law offenses. The deponent, a police officer, stated that a witness related the following: that he saw Brooks operating a van, that the van rear-ended the witness's vehicle, and that Brooks fled without providing any identifying information. The deponent police officer claimed, based on his own observation, that Brooks exhibited signs of intoxication and that he was present when Brooks refused a breathalyzer test.
The People were not ready at arraignment because they lacked supporting depositions from the witness and another police officer. Later, the People simultaneously filed an off-calendar statement of readiness, the two outstanding supporting depositions, and a certificate of translation. The witness's supporting deposition stated that he had "read the complaint" and that the facts attributed to him in that document pertaining to Brooks's operation of the van and actions after the crash were "true upon [his] personal knowledge."
The witness signed the deposition under a form notice stating that false statements made therein were punishable as a class A misdemeanor, as required for verification (see CPL 100.30[1][d] ). In the certificate, a translator said that she translated the English-language "accusatory instrument" to the witness, including the form notice, in Spanish and that the witness confirmed to the translator that he understood what was translated.
At a subsequent calendar call, Criminal Court determined that the certificate of translation was defective because it failed to state the translator's qualifications. As a result, the court concluded that the complaint was not converted to an information and that the People would be charged speedy trial time until they filed a proper affidavit of translation. After the People refused to take any additional steps to convert the complaint on the ground that no further action was required by the CPL to effectuate conversion, the court granted Brooks's motion to dismiss the accusatory instrument on statutory speedy trial grounds.
The Appellate Term affirmed, concluding that Criminal Court "providently exercised its discretion in requiring a proper certificate of translation to be produced in order to convert the complaint into an information" because the People "provided sufficient indicia" of the witness's inability to understand English when they filed the translator's statement with the supporting deposition ( 63 Misc.3d 158[A], 2019 N.Y. Slip Op. 50859[U], *1, 2019 WL 2347138 [App. Term, 1st Dept. 2019]). The court further determined that the certificate of translation filed by the People failed to convert the complaint within the speedy trial period because the certificate "did not comply with CPLR 2101(b)" ( id., citing Uniform Rules for Trial Cts [ 22 NYCRR] § 200.3 ). A Judge of this Court granted the People leave to appeal (see 34 N.Y.3d 979, 113 N.Y.S.3d 647, 137 N.E.3d 17 [2019]).
Allen was charged with menacing in the second degree, a class A misdemeanor, after she allegedly threatened a restaurant worker (the complainant) with a knife. A police officer drafted the English-language misdemeanor information, which stated that the charge was based on the complainant's sworn statement to the effect that Allen, a customer at the restaurant where the complainant was working, became angry because the complainant informed her that she could not leave the establishment with an alcoholic beverage. The situation escalated, and Allen allegedly threatened the complainant with a steak knife. The deposition includes a representation that the complainant "had this statement consisting of [one] page read to [her] in Spanish" by a police officer and that she swore that it was the truth. The complainant verified the deposition by signing it under a form notice stating that false statements made therein were punishable as a class A misdemeanor (see CPL 100.30[1][d] ).
Allen moved to dismiss the accusatory instrument as facially insufficient, contending that the translation created a layer of hearsay that the People failed to appropriately remedy. In opposition, the People filed an affidavit of translation executed by the officer who translated the deposition. He swore that he understood English and Spanish and that the complainant's statement was a true and accurate translation by him of the complainant's spoken Spanish statement. The officer averred that he translated the written English statement into Spanish for the complainant and she signed the deposition after confirming its accuracy.
The District Court adjourned Allen's motion and directed the People to file a superseding information that included: (1) a verified affidavit from the complainant "in the language of said individual," including a verification in that...
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