On 3 April 2008, a detective filed a misdemeanor complaint against defendant and charged her with Endangering the Welfare of a Child.
The detective or the deponent, in pertinent part, the factual portion of the complaint, alleged: deponent is informed by a doctor (the informant) of a hospital that, on or about 30 March 2008, at approximately 6:00 p.m., the defendant brought her 17-month old son at the hospital to be treated for a burn injury where defendant also stated that her 3-year old son was also burned with an iron at their residence; deponent is further informed by informant that he examined and observed a second degree burn, that was at least 2-3 days old, 6 inch long and 1 inch wide on the child’s left thigh, and that, defendant’s story of how the burn occurred is not consistent with the child’s injury; deponent is further informed by the informant that the above described actions caused the child to suffer substantial pain, to fear physical injury and to become alarmed and annoyed; deponent is further informed by defendant that the child’s date of birth is 19 October 2006.
The People did not answer ready for trial.
Subsequently, defendant was arraigned and assisted by a court-appointed interpreter of the Urdu language.
Defendant has moved for an order dismissing the accusatory instrument on the grounds that her speedy trial rights pursuant to Criminal Procedure Law have been violated. The People oppose the motion. Thereafter, several adjournments of the case were made.
Under 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 dismissed when the People have not answered ready for trial within 90 days of the commencement of the action in The Bronx and Brooklyn.
Here, defendant is charged with Endangering the Welfare of a Child which is a “class A” misdemeanor and is punishable by up to one-year imprisonment. The time-limit in this matter is 90 days from commencement of the action. The action was commenced on 3 April 2008 when the People filed a complaint in criminal court.
As a rule, 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.
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 3 April 2008 through 20 May 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 the doctor (the informant). The People served and filed that supporting deposition off calendar on 18 April 2008. However, the People did not serve and file a certificate of translation to establish that someone fluent in defendant’s language, Urdu, translated the admissions that the defendant allegedly made to the doctor and the admission that the defendant allegedly made to the detective (the deponent).
On 20 May 2008, defendant raised her lack of understanding of the English language as well as the lack of understanding of the doctor and the detective of Urdu. The People have not contested those assertions. Under such circumstances, the court has the authority, at the pleading stage of the case, to require that the People to remove the cloud over the facial sufficiency of an accusatory instrument by submitting proof in the form of a certificate of translation that defendant’s alleged admissions were translated from Urdu to English by someone capable of making those translations.
In cases where a defendant’s alleged admissions are crucial to the facial sufficiency of an accusatory instrument, as the case here, the fact that the admissions were not given in an 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.
Here, 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. Without defendant’s alleged admissions, the accusatory instrument does not show that the defendant engaged in conduct likely to be injurious to the child which is an element of the crime.
It is true that medical records of a hospital are business records and, if certified, satisfy the rule against hearsay and entries in such records that contain statements by a patient or the parent or guardian of a patient are made to assist medical personnel in diagnosing and treating an ailment, i.e., medical history, are an exception to the hearsay rule. Nonetheless, the issue here is the identity and translating credentials of the doctor who translated the admissions to the informant doctor. While it may be presumed from the circumstances that the doctor interpreted the defendant’s alleged statements to the informant doctor, the medical records do not attest to the fluency of the doctor-translator 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, the doctor-translator 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 an accurate English translation of the non-English speaking individual’s statement(s) and did so.
Thus, the court cannot conclude that the statements attributed to the defendant in the complaint are an accurate or even near accurate English translation of what the defendant allegedly said to the doctor and the detective. 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 20 May 2008 through 10 July 2008, 51 days, must also be charged to the People because they did not serve and file a certificate of translation.
The adjournment from 10 July 2008 through 29 July 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. The delay was an extension of the adjudication of the defendant’s demand that a certificate of translation be filed.
The adjournments from 29 July 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.
In sum, the People must be charged for a total of 98 days of speedy trial time which exceeds the statutory time-limit of 90 days, defendant’s motion for an order dismissing the accusatory instrument is granted.
For assistance or legal advice on similar matters, contact Stephen Bilkis & Associates. Our Kings County Family Attorneys are available to advise you on the best legal remedies applicable in your situation. A Kings County Burn Injury Attorney from our firm may also prove helpful when it comes to specific burn injury matters.