A judge in the Bronx has refused to dismiss forcible touching charges lodged against a deaf man, while acknowledging the extraordinary difficulty the defendant’s attorney has communicating with a client who can’t hear, doesn’t read or write and doesn’t know sign language.
Despite Yenser Sanchez’ disability, Criminal Court Judge John Wilson said there is no basis to dismiss the charges in the interest of justice. But he did order a psychiatric examination to evaluate the defendant’s capacity to stand trial and assist in his defense.
People v. Sanchez, 2013BX016341, arose out of an incident in March 2013 when the defendant allegedly accosted and fondled a woman waiting for an elevator. Sanchez was charged with a misdemeanor count of forcible touching and a violation of second-degree harassment.
Defense attorney Melissa DeJesus of the Legal Aid Society moved for dismissal in the interest of justice, explaining that it is nearly impossible to communicate with her client.
DeJesus said in court papers that the defendant communicates primarily through “gestures and pantomime,” and she “cannot begin to discuss the relatively sophisticated concepts necessary for [Sanchez] to make an educated decision about a disposition or the risk of going to trial.”
But Wilson said the fact that Sanchez has been deaf since suffering a severe case of typhoid fever and meningitis when he was 7 months old, that he dropped out of school in the third grade without learning to read or write and that he doesn’t know sign language did not offer grounds for an interest-of-justice dismissal.
The judge said §170.40 of the Criminal Procedure Law enumerates a number of factors for a discretionary dismissal in the interest of justice, but none of them apply here.
Wilson distinguished Sanchez from People v. Reets, 157 Misc2d 515 (Supreme Court, Brooklyn, 1993), where a deaf mute defendant was exploited to pass cocaine to an undercover police officer. In Reets, the defendant had entered into a communication skills program, but Sanchez “has spent years resisting all efforts to teach him to communicate,” the court said.
“Although defendant presents a sympathetic figure, the mere fact that defendant is deaf, and counsel has trouble communicating with defendant, does not merit dismissal of this matter in the interest of justice,” Wilson wrote.
However, the judge added that “counsel’s inability to communicate with the defendant is an issue that is of great concern to this court.”
Wilson acknowledged his obligation to accommodate an impaired defendant, but said he cannot try an incompetent person. He noted that the Appellate Division, First Department, in Matter of NYCHRA v. Carey, 107 AD2d 625 (1985) held that a deaf defendant who “could only respond to spoken language in seemingly random grunts and noises” was an incapacitated person, unable to appreciate the nature of the charges or participate in his defense.
The judge ordered Sanchez to submit to a psychiatric exam under CPL §730.30 to determine if he is fit for trial.
Bronx Assistant District Attorney Eric Becaj argued for the prosecution.