Opinion
No. 2012QN007258.
2012-09-19
The PEOPLE of the State of New York, Plaintiff, v. Enrique GUERRERO, Defendant.
Chandra Gomes, for defendant. ADA Ilana Turko, for the People.
Chandra Gomes, for defendant. ADA Ilana Turko, for the People.
ELISA S. KOENDERMAN, J.
The defendant, Enrique Guerrero, is charged with Criminal Contempt in the Second Degree, Penal Law [“PL”] x 215.50(3) and Harassment in the Second Degree, PL § 240.26(1).
The defendant moves to dismiss the information for facial insufficiency, claiming that it is defective because it does not contain non-hearsay factual allegations and that it fails to provide reasonable cause to believe that the defendant committed the offense of Criminal Contempt in the Second Degree. He contends that the complainant's supporting deposition is inadequate to corroborate the hearsay in the complaint because it is not accompanied by a “certificate of translation,” to wit, an affidavit from the interpreter who translated the misdemeanor complaint to the complainant attesting to the interpreter's language proficiency, his qualifications and the accuracy of the translation. The defendant further asserts that the facts alleged are insufficient to demonstrate that the defendant violated a limited order of protection against him on behalf of the complainant.
The defendant's motion to dismiss is denied. The non-hearsay factual allegations of the information, when given a “fair and not overly restrictive or technical reading” and accepted as true, establish each element of the charged crimes and are adequately detailed to provide the defendant with sufficient notice to prepare a defense and to prevent him from being tried twice for the same offense (People v. Casey, 95 N.Y.2d 354, 360 [2000] ).
The information comprises the misdemeanor complaint from Police Officer Juan Lordi and a supporting deposition from the complainant, Lorena Pareja–Garcia
. The complaint alleges that the complainant informed Officer Lordi that on January 30, 2012 between 7:00 a.m. and 7:20 a.m., inside 80–15 41st Avenue in Queens County, the defendant followed her and grabbed her, causing her annoyance and alarm. The complaint further alleges that Officer Lordi reviewed an order of protection in effect against the defendant which directs the defendant to refrain from harassment or intimidation of the complainant and which indicates that the defendant was present in court when it was issued.
The People also filed and served a non-certified copy of the order of protection at arraignment which corroborates the facts alleged in the complaint. The better practice is to file a certified copy of the order of protection ( see People v. Inserra, 4 NY3d 30, 33 n [2004] ). Regardless, the facts alleged by the deponent officer are sufficient to establish the existence of the order of protection and the defendant's knowledge of its terms and conditions ( see id. at 32–33;cf. Casey, 95 N.Y.2d at 359–360).
The supporting deposition bears the caption of the case, including the docket number. It states that “I, Lorena Pareja–Garcia have been read the accusatory instrument filed in the above-entitled action and that the facts therein stated to be on information furnished by me are true upon my personal knowledge.” It is signed and dated by the complainant underneath a form notice which states that “false statements made herein are punishable as a class A' misdemeanor pursuant to Section 210.45 of the Penal Law.” The supporting deposition is attached to an affirmation from Assistant District Attorney Ilana Turko attesting that the misdemeanor complaint was translated to the complainant in ADA Turko's presence via telephone through the use of an interpreter employed by the AT & T Language Line Interpretation Service.
Contrary to the defendant's contention, an affidavit from the interpreter who translated the complaint is not necessary to deem the complaint an information. The supporting deposition is subscribed by the complainant and is properly verified
. Because there is no indication on its face that the complainant did not read or understand the supporting deposition, it alone is adequate to corroborate the hearsay allegations in the complaint ( see Matter of Shaquana, 9 AD3d 466, 467 [2d Dept 2004]; see also Matter of Edward B., 80 N.Y.2d 458, 463 [1992];People v. Honshj, 176 Misc.2d 170, 174 [Crim Ct, N.Y. County 1998] [where an AT & T line interpreter was utilized to assist in the interpretation of the complaint, the court held that “in the absence of a clear indication from the complainant that she did not read or understand the factual allegations read to her, on her own or through an interpreter, defendant's mere speculation that the complainant might' not have read or understood the allegations in the complaint is insufficient to successfully challenge the propriety of the supporting deposition in this case”] ); People v. Allen, 166 Misc.2d 916, 921 [Crim Ct, N.Y. County 1996] ). That the supporting deposition was filed with an affirmation from an assistant district attorney stating that an interpreter translated the complaint to the complainant does not imply that the complainant did not understand the complaint; rather, it confirms that the complainant did understand the complaint, since it was read to her in her own language. In any event, like the affirmation from ADA Turko, an affidavit from the interpreter who translated the complaint is superfluous to a determination of facial sufficiency. Whether the complainant misunderstood the complaint due to a language barrier or for whatever other reason is an issue for cross-examination at trial.
A supporting deposition may be verified by a form notice acknowledging that false statements by the subscriber are made under penalty of perjury (see CPL § 100.30[1][d] ).
Furthermore, the facts alleged that over a twenty-minute period, the defendant followed the complainant and grabbed her, when viewed in the light most favorable to the People ( see People v. Barona, 19 Misc.3d 1122[A], 1, 2008 N.Y. Slip Op 50814[U] [Crim Ct, N.Y. County 2008] ), do provide reasonable cause to believe that the defendant harassed or intimidated the complainant in knowing violation of the limited order of protection. Accordingly, the information is facially sufficient.
The defendant's motion to preclude the People from introducing evidence of the defendant's prior bad acts on their direct case or upon cross-examination of the defendant at trial, or in the alternative for a Sandoval hearing, is reserved to the trial court.
The People are directed to provide discovery as required by CPL x 240.20 and bill of particulars as required by CPL §§ 200.95 and100.45(4).
This constitutes the decision and order of the Court.