BILL NUMBER: S8687

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to requiring
accurate interpretation of statements made by deponents with limited
English proficiency in accusatory instruments and supporting depositions

 
PURPOSE:

The purpose of this legislation is to ensure that deponents who are not
fully proficient in the English language have their statements in
support of an accusatory instrument accurately taken.

 
SUMMARY OF PROVISIONS:

Section one of the bill amends section 100.40 of the criminal procedure
law by adding a new subdivision that sets forth two alternate procedures
for taking statements from deponents with limited English proficiency.

Section two sets forth the effective date.
              

 
JUSTIFICATION:

New York, is a linguistically diverse state, and some New Yorkers are
not fully proficient in the English language. In the criminal-justice
context, this becomes an issue when a New Yorker who is not fully profi-
cient in English seeks to report a crime.

In a recent trio of criminal appeals involving the use of translators
for documenting statements from such witnesses, the New York State Court
of Appeals decided that it would be inappropriate to require that a
certificate of translation be filed with a supporting deposition when
converting a complaint to an information. The court's decision in these
cases fails to account for the fact that, for many New Yorkers, English
is not their primary language. This bill seeks to remedy that failure.

In New York, absent a waiver from the accused, the People may proceed
with a prosecution only when a complaint has been duly converted to an
information. This is because, unlike a complaint, which may contain
hearsay allegations, an information must contain non-hearsay factual
allegations of an evidentiary character that, if true, would establish
every element of the offense charged and the defendant's commission of
that offense. These factual allegations are usually relayed to law
enforcement officials either verbally or in writing.  Either way, these
statements ultimately take the form of a supporting deposition that is
then appended to the complaint, thus completing the necessary conver-
sion. The person making these statements, whether they be a witness to
the offense or the alleged complainant/victim, is known as a deponent.

A description of this process lays bare the problem - How can a person
who is not proficient in English relay facts of an evidentiary character
to law enforcement officials if he, she, or they cannot speak or write
English? The solution is rather simple: Require that law enforcement
officials use qualified translators who can translate the deponent's
accusations into English, and then require that these individuals submit
affidavits affirming what they did as well as their qualifications.

Perplexingly, the majority in this case characterizes any requirement
that a certificate of translation be filed when converting a complaint
to an information as a "judicially-created" barrier to justice. However,
the police already rely on translation services if such services are
readily available to them. The issue is that they sometimes rely on
people who do not subsequently disclose the extent to which they are in
fact qualified to serve as translators or interpreters. Performing
translations and interpreting comments from one language to another is
inherently complex, and any error when taking down a person's statement
while preparing a supporting deposition may result in the mischaracter-
ization of an allegation of fact necessary to support the conversion of
a complaint into an information. Moreover, the dissent in that case
correctly notes that having a translator allows for more access to the
criminal justice system, not less.

The proposed legislation would ensure that deponents have their allega-
tions accurately translated by someone who is qualified to translate
them, while also putting defendants on sufficient notice of the facts
giving rise to the factual allegations levied against them.

 
LEGISLATIVE HISTORY:

2021-22: S6857 - Passed Senate

 
FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.