People v. Slade, People v. Brooks, People v. Allen
Factual Background: In each of the three cases on appeal, a translator translated an English-language complaint or supporting deposition into Spanish for the witness who signed the document.
In Slade, the translation was revealed when the prosecution filed a certificate of translation two-and-a-half years after arraignment. The defense unsuccessfully moved to dismiss the accusatory instrument on speedy trial grounds, arguing that the prosecution’s statements of readiness were illusory because the filing of the certificate of translation was necessary to convert the complaint into an information. Mr. Slade was ultimately convicted after a bench trial, and the Appellate Term, First Department affirmed.
In Brooks, the prosecution filed a certificate of translation with a supporting deposition necessary to convert the complaint into an information. A judge found the certificate of translation defective because, among other things, it did not state the translator’s qualifications and later granted the defense’s speedy trial motion when the prosecution refused to file an acceptable certificate. The Appellate Term, First Department affirmed.
In Allen, the supporting deposition itself stated that the complainant had the English-language statement ready to her in Spanish by a police officer. The defense moved to dismiss the accusatory instrument as facially insufficient, contending that the translation created a layer of hearsay that the prosecution failed to appropriately remedy. The prosecution filed an “affidavit of translation” by the officer with its response. The motion court directed the prosecution to file additional documents, including an affidavit from the officer stating his qualifications and attesting to the accuracy of the translation. The court dismissed the case on facial sufficiency grounds after the prosecution declined to do so. The Appellate Term, Second Department affirmed.
Issue before the Court: Whether the participation of a translator in the creation of an accusatory instrument creates a hearsay defect that must be remedied – via the filing of a certificate of translation – for the instrument to be deemed a jurisdictionally sufficient information.
In Slade and Brooks, the Court found the accusatory instruments facially sufficient because there was no hearsay defect apparent on the face of the accusatory instruments. The complaint and supporting deposition gave no indication that the documents were translated for the witnesses or that they failed to read, have read to them, or understand the English-language documents. The C.P.L. does not require a “certificate of translation, let alone a certificate in any particular form, to create a facially sufficient instrument.”
In Allen, the Court held that, even when there is facial indication that the translation occurred, “no hearsay defect exists where … the four corners of the instrument indicate only that an accurate, verbatim translation occurred, and the witness or complainant adopted the statement as their own by signing the instrument after the translation.” The Allen supporting deposition stated the facts in a first-person narrative, and nothing on the face of the deposition provided reason to doubt that a precise translation occurred.
The majority believed that its holding was “consistent not only with [the Court’s] precedent but with sound policy.” It believed that more complex authentication methods may lead to greater challenges to victims with limited-English proficiency in reporting crimes and participating in prosecutions.
Judge Rivera and Judge Wilson dissented in separate opinions. The dissenters would require, at least, that translators provide written affirmations as to their qualifications and the accuracy of the translation provided. Without such assurances, the prosecution did not have trial-ready informations. The dissenters recognized the potential prejudice to victims if quality translation was not assured and noted that prosecutors already attempted to memorialize translators’ work with certificates of translation.
The Court provided much-needed clarity to an issue that had been the source of litigation and inconsistency in the lower courts over the past three decades.
In 1992, the Court held that “latent deficiencies in the accusatory instrument that are revealed during the trial or hearing do not provide a ground for mandatory dismissal.” Matter of Edward B., 80 N.Y.2d 458, 465 (1992). Although the Slade Court believed it “made clear that the holding in [Edward B.] was not limited to latent deficiencies discovered during a trial or fact-finding hearing” in Matter of Nelson R., 90 N.Y.2d 359 (1997), the lower courts had developed a tapestry of incongruent and arbitrary rules regarding latent hearsay defects discovered and acted upon before trial, particularly where the prosecution used a translator in creating the accusatory instrument.
Some courts considered evidence outside of the accusatory instrument and supporting deposition to assess conversion while others refused to do so. Further, many courts required certificates of translation for conversion when presented with evidence of translation, and others did not.
The clarity provided comes at the expense of the reliability of accusatory instruments’ allegations. The majority said its ruling does not preclude a defendant who discovers a translation-related hearsay defect – possibly stemming from an inaccurate translation or misunderstanding in the verification process – before trial “from using other options available under the C.P.L., if the circumstances warrant, to ensure that the supporting deposition meets statutory requirements” (citing C.P.L. § 170.30). The decision, however, renders such discovery unlikely. And, even assuming prosecutors’ offices continue providing notice of translation, any latent deficiency will be of little practical import.