Defendant Ahammad Hossein was arraigned on a complaint on May 12, 2021 and charged with one count of Assault in the Third Degree (P.L. §120.00[1]), one count of Criminal Possession of a Weapon in the Fourth Degree (P.L. §265.01[2]), and one count of Harassment in the Second Degree (P.L. §240.26[1]). A superseding information filed on June 21, 2021 maintained those charges and added one count of Criminal Mischief (P.L. §145.00[4][a]). Defendant now moves this Court to dismiss the accusatory instrument pursuant to CPL §30.30(1)(b), asserting that the People’s failure to notarize the affidavit of translation that accompanied the superseding information was a fatal oversight that prevents timely conversion. Defendant further asserts in his reply papers that the superseding information is facially insufficient because the date and time of the allegations is listed as a range of about nine days. The People oppose defendant’s application. The top count charged in the complaint is an A misdemeanor, requiring the People be ready for trial within ninety (90) days of the filing of the accusatory instrument, less any excludable time (CPL §§30.30[1][b], 1.20[17]). The Court finds that 87 days of chargeable time elapsed between the commencement of the action on May 12, 2021 and August 18, 2021 when defendant filed the instant motion. For the reasons discussed below, defendant’s motion is denied in its entirety. Facial Sufficiency The Court finds the superseding information to be facially sufficient. An accusatory instrument must specify the offense(s) charged and contain factual allegations of an evidentiary nature that tend to support them (CPL §100.15[2], [3]). Such factual allegations must consist of non-hearsay allegations that provide reasonable cause to believe that the defendant committed the offense(s) charged, and which, if true, establish each and every element of those charges (CPL 100.40). An information need only contain factual allegations that provide the defendant with “notice sufficient to prepare a defense and [which] are adequately detailed to prevent a defendant from being tried twice for the same offense” (People v. Casey, 95 NY2d 354, 360 [2000]). The allegations here are that defendant struck the complainant in the leg with a cricket bat, causing her substantial pain and bruising, and then prevented the complainant from calling 911 by taking her cell phone and threatening to kill her and “destroy her body” if she called the police. These allegations are sufficient to sustain each and every element of the offenses charged (see PL §120.00[1][assault in the third degree: with intent to cause physical injury to another person, causes such injury to such person]; PL §265.01[2][criminal possession of a weapon in the fourth degree: possession of a dangerous instrument or weapon with intent to use it against another]; PL §145.00[4][a][criminal mischief in the fourth degree: with intent to prevent a person from communicating a request for emergency assistance, intentionally removes telephone while that person is attempting to seek assistance from police or law enforcement]; PL §240.26[1][harassment in the second degree: with intent to harass, annoy or alarm another person, strikes or subjects that person to physical contact]). Contrary to defendant’s assertion, the multi-day period during which the offenses allegedly occurred is adequate to put him on notice to prepare a defense, and is specific enough to eliminate potential double jeopardy concerns (People v. Casey, 95 NY2d at 360). The lack of a precise date is not a fatal defect, since it is not a substantive element of the offenses charged (People v. Morris, 61 NY2d 290, 295 [1984]). Thus, to the extent defendant moves in his reply papers to dismiss the information for facial insufficiency, that motion is denied. Affidavit of Translation On June 21, 2021, the People filed a first-party superseding information attaching an affidavit of translation. The affidavit of translation sets forth the Bengali language translator’s qualifications and indicates that the translator “interpreted and translated, from English to Bengali, the entire content of the accusatory instrument in the above-entitled action, as well as the fact that false statements made therein are punishable as a Class A misdemeanor” to the complainant. The affidavit of translation is signed by the translator, but the section for notarization is blank. The Court rejects defendant’s argument that the People’s failure to provide a notarized affidavit of translation is fatal to their case. There is no hearsay defect apparent on the face of the information, and the lack of notarization of the affidavit of translation is a latent defect that does not prevent conversion to an information (see People v. Slade, 37 NY3d 127, 138-39 [2021] ["the CPL does not require a certificate of translation, let alone a certificate in any particular form, to create a facially sufficient instrument"]). CPL §30.30 Calculation With respect to defendant’s CPL §30.30 argument, the Court finds that eighty-seven (87) chargeable days have elapsed, calculated from defendant’s initial arraignment on May 12, 2021, through the People’s filing of a Certificate of Compliance (“COC”) and Statement of Readiness (“SOR”) on August 7, 2021. On May 12, 2021, defendant was arraigned on the complaint and the case was adjourned to June 21, 2021 for conversion (40 days charged). On June 21, 2021, the People filed a first-party superseding information, defendant was arraigned on the information, and the case was adjourned to July 22, 2021 for the People to file a COC pursuant to CPL §245.50 (31 days charged/71 days total). On July 22, 2021, the People were not ready as they had not filed a COC and SOR, and the case was adjourned to September 7, 2021 for them to do so. The People filed a COC and SOR off-calendar on August 7, 2021 (16 days charged/87 days total). Accordingly, the People are charged with 87 days, within the 90-day allowable time frame, and defendant’s motion to dismiss pursuant to CPL §30.30(1)(b) is denied. This constitutes the decision and Order of the Court. Dated: September 17, 2021
