[*1]
People v Kousar
2008 NY Slip Op 52135(U) [21 Misc 3d 1122(A)]
Decided on September 11, 2008
Criminal Court Of The City Of New York, Kings County
Nadelson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 11, 2008
Criminal Court of the City of New York, Kings County


The People of the State of New York, Plaintiff,

against

Robina Kousar, Defendant.




2008KN025055



Appearances of Counsel:Charles J. Hynes, District Attorney, Kings County (Shea Scanlon Lomma of counsel)

Brooklyn Defender Services (Benjamin Zeman of counsel)

Eileen N. Nadelson, J.



The defendant, Robina Kousar, is charged with Endangering the Welfare of a Child (Penal Law ["PL"] §260.10[1]). She has moved for an order dismissing the accusatory instrument on the grounds that her speedy trial rights pursuant to Criminal Procedure Law ("CPL") 30.30 have been violated. The People oppose this motion.

This court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT


On April 3, 2008, the People served and filed a misdemeanor complaint charging the

above-mentioned offense. In pertinent part, the factual portion of the complaint of Detective Julio Rosa, Shield No. 2475, of "B.C.A.S." Command, alleged the following:

Deponent is informed by Dr. Walker [sic], of Maimonides Hospital[,] that at the above time and place [on or about March 30, 2008 at approximately 6:00 p.m. at Avenue C, County of Kings, State of New York], the defendant did bring defendant's 17 month old son [H.C.][FN1] to be treated for a burn, and that, [sic] defendant stated that defendant's 3 year old son [A.C.][FN2] burned [H.C.] with an iron inside of defendant's residence.

Deponent is further informed by informant that informant examined [H.C.], and that, [sic] informant observed a second degree burn, that was at least 2-3 days old, 6 inch long and 1 inches [sic] wide on [H.C.][sic] left thigh, and that, defendant [sic] story of how the burn occurred is not consistent with [H.C.]'s injury. [*2]

Deponent is further informed by the informant that the above described actions caused informant [sic] to suffer a second degree burn on [H.C.]'s thigh, to suffer substantial pain, to fear physical injury and to become alarmed and annoyed.

Deponent is further informed by defendant that [H.C][sic] date of birth is October19th, 2006.

The People did not answer ready for trial. The defendant was arraigned, assisted by a court-appointed interpreter of the Urdu language. The case was adjourned until May 20, 2008 for conversion of the accusatory instrument by the serving and filing of a supporting deposition.

On April 17, 2008, the People served and filed off calendar a supporting deposition of Ingrid Walker-Descartes, M.D. and a statement of readiness for trial. The factual allegations contained in the supporting deposition of Dr. Walker-Descartes read as follows:

I, Ingrid Walker-Descartes, M.D., have read the accusatory instrument filed in this action. The facts stated in that instrument to be on information furnished by me are true upon my personal knowledge.

On May 20, 2008, defense counsel contended that the complaint had not been converted into an information because the defendant did not speak English and the People had not yet served and filed a certificate of translation to establish that (1) the statements attributed to her in the complaint had been made to someone who understood Urdu, the defendant's language, and was capable of translating her alleged admissions into English and (2) that the admissions stated in the complaint were a precise translation of the defendant's actual utterances. The court directed the People to serve and file the requested certificate of translation. The court adjourned the case until July 10, 2008 for that purpose.

On June 2, 2008, the People served and filed off calendar a statement of readiness accompanied by the certified medical records of Maimonides Medical Center for the diagnosis and treatment of [H.C.] on April 1, 2008. One page of the medical records, entitled "Problem Oriented Progress Notes" and signed by "A. Ariel,"a licensed master of social work ("LMSW"), reads in part that a medical doctor named Kuncha "interpreted" for "Dr. Walker" as she interviewed the defendant (People's Response, exhibit 5, pg. 12).

On July 10, 2008, the People did not serve and file a certificate of translation. The court adjourned the case until July 29, 2008 for re-argument of the court's order directing the People to serve and file such a certificate.

On July 29, 2008, the court adjourned the case until September 3, 2008 to permit the defendant to serve and file the instant motion and for the People's response and decision.

On July 30, 2008, the defendant served and filed the instant motion.

On August 15, 2008, the People served and filed their response, which did not include a certificate of translation.

On September 3, 2008, the court adjourned the case for decision of the instant motion.

DISCUSSIONUnder New York's readiness rule, when a defendant is charged with at least one non-felony offense punishable by more than three months of incarceration, the case must be [*3]dismissed when the People have not answered ready for trial within 90 days of the commencement of the action. CPL 30.30(1)(b). Endangering the Welfare of a Child is a class A misdemeanor. PL §260.10. It is punishable by up to one-year imprisonment. PL §70.15(1).


Accordingly, the CPL 30.30 time-limit in this matter is 90 days from commencement of the action.

This action commenced on April 3, 2008, when the People filed a complaint in criminal court.

The defendant bears the burden of going forward, by sworn allegations of fact, to show that there has been an inexcusable delay beyond the time allowed by the statute. Once the defendant meets his burden, the People have the ultimate burden of justifying that delay. People v. Santos, 68 NY2d 859 (1986).

A review of the defense motion papers, the People's response, the court file and minutes

of several proceedings discloses that the periods of delay are attributable as follows:

The entire adjournment from April 3, 2008 through May 20, 2008, 47 days, must be charged to the People. The adjournment was ordered to enable the People to convert the complaint by serving and filing a supporting deposition of "Dr. Walker." The People served and filed that supporting deposition off calendar on April 18, 2008. However, the People did not serve and file a certificate of translation to establish that someone fluent in the defendant's language, Urdu, translated the admissions that the defendant allegedly made to "Dr. Walker" (whose actual name is Ingrid Walker-Descartes as stated in her supporting deposition) and the admission that the defendant allegedly made to Detective Rosa, the complaint's deponent.

The defendant raised her lack of understanding of English and Dr. Walker-Descartes's and Det. Rosa's lack of understanding of Urdu at the May 20, 2008 calendar call. The People have not contested those assertions. The People argue that they had no obligation to serve and file such a certificate of translation because the complaint on its face does not raise an issue as to Dr. Walker-Descartes' and Detective Rosa's first-hand knowledge of the defendant's alleged admissions. Under such circumstances, however, the court has the authority, at the pleading stage of the case, to require that the People remove this cloud over the facial sufficiency of the accusatory instrument by submitting proof in the form of a certificate of translation that the defendant's alleged admissions were translated from Urdu to English by someone capable of making those translations. See People v. Camacho, 185 Misc 2d 31, 35-36 (Crim Ct, Kings County 2000); People v. Banchs, 173 Misc 2d 415, 418 (Crim Ct, Kings County 1997); cf People v. Honshj, 176 Misc 2d 170,174 (Crim Ct, Kings County 1998). To be sure, the above cited cases all involved the effect of a complainant's and not a defendant's lack of understanding of English on the credibility of his or her supporting deposition. But the distinction is meaningless. When the defendant's own alleged admissions are crucial to the facial sufficiency of an accusatory instrument, as is the case here, the fact that these admissions were not given in English to English-only informants calls into question the substance of the admissions. Indeed, translations of a defendant's alleged admissions to an unavailable translator cannot be admitted in evidence unless there is proof that the translator was an agent of the defendant for that purpose and there was "no motive to mislead and no reason to believe the translation is inaccurate." People v. Romero, 78 NY2d 355,362 (1991); accord People v. Morel, 8 Misc 3d 67, 68-69 (App Term, 2d and 11th Jud Dists), leave to appeal denied, 5 NY3d 808 (2005). [*4]

The absence of a certificate of translation covering the alleged admissions of the defendant referred to in the complaint are latent defects that do not establish elements of the crime charged by facts of an evidentiary character. See CPL 100.40(3). PL §260.10(1) proscribes the following conduct:A person is guilty of endangering the welfare of a child when:

1. He knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health;

Without the defendant's alleged admissions, the accusatory instrument does not show that the defendant engaged in conduct likely to be injurious to H.C. which is an element of the crime. See Criminal Jury Instructions PL §260.10(1).[FN3]

The People argue in the alternative that the hospital medical records contain an entry which constitutes the equivalent of a certificate of translation, i.e., a supporting deposition. The People refer to the page of the record in which the licensed master of social work states in part that a medical doctor named Kuncha "interpreted" the defendant's words to "Dr. Walker" as she interviewed the defendant. See People's Response, exhibit 5, pg.12. The People contend that the certification attached to the medical records makes the entry regarding the alleged interpretation of the defendant's statements a business record, a recognized exception to the rule against hearsay at trial or in pleadings.

To be sure, medical records of a hospital are business records and if certified satisfy the rule against hearsay. See CPLR 4518(c); People v.Mertz, 68 NY2d 136, 147-148 (1986). And entries in such records that contain statements by a patient or the parent or guardian of a patient made to assist medical personnel in diagnosing and treating an ailment, i.e., medical history, are themselves an exception to the hearsay rule. See People v. Davis, 95 AD2d 837, 837-838 (2d Dept 1983). However, in this matter the entry at issue is the identity and translating credentials of Dr. Kuncha. While it may be presumed from the circumstances that the doctor interpreted the defendant's alleged statements to Dr. Walker-Descartes, the medical records do not attest to the fluency of Dr. Kuncha in the Urdu language. Indeed, the medical records do not even refer to the language in which the statements were made, or for that matter, that spoken words were involved. For all the court knows from this entry Dr. Kuncha had interpreted the defendant's hand gestures. This fleeting reference to interpretation hardly approximates the content of a certificate of translation, which must assure the court that the translator was capable of giving a accurate English translation of the non-English speaking individual's statement(s) and did so.

On this record the court cannot conclude that the statements attributed to the defendant in [*5]the complaint are an accurate or even near accurate English translation of what the defendant allegedly said to Dr. Walker-Descartes and Det. Rosa. Accordingly, the court holds that the defendant's alleged admissions contained in the complaint were not fully corroborated when the People served and filed off calendar a statement of readiness for trial. As a result, the statement of readiness was a nullity, and the entire adjournment, 47 days, is charged to the People.

The adjournment from May 20, 2008 through July 10, 2008, 51 days, must be charged to the People because they did not serve and file a certificate of translation.

The adjournment from July 10, 2008 through July 29, 2008 is not chargeable to the People because it was ordered to enable the People to reargue the court's previous ruling that a certificate of translation was required to convert the accusatory instrument into an information. In essence, the delay was an extension of the adjudication of the defendant's demand that a certificate of translation be filed. See CPL 30.30(4)(a).

The adjournments from July 29, 2008 to date are not chargeable to the People because they were ordered to enable the defendant to serve and file the instant motion, for the People to respond and for the court to render a decision. See id.

CONCLUSION


The People must be charged for a total of 98 days of "speedy trial" time, which exceeds

the statutory time-limit of 90 days. Accordingly, the defendant's motion for an order pursuant to CPL 30.30 dismissing the accusatory instrument is hereby granted.

This opinion shall constitute the Decision and Order of the court.

Dated: September 11, 2008

Brooklyn, New York

___________________________

EILEEN N. NADELSON, J.C.C.

Footnotes


Footnote 1:Full name of this minor redacted by the court.

Footnote 2:Full name this minor redacted by the court.

Footnote 3:

The People are correct that the accusatory instrument's allegation that H.C. was a child of less than 17 years of age, an element of the crime, did not rely on the defendant's alleged admissions to Dr. Walker-Descartes or Det. Rosa as to H.C.'s age. That H.C. was less than 17 years of age was a reasonable deduction by Dr. Walker-Descartes based on that individual's physical appearance. See People v. Cenat, 176 Misc 2d 39, fn 3 (Crim Ct, Kings County 1997).