Even if the corroborating affidavit were construed to relate also to the allegation in the complaint that the complaining witness is unable to care for herself because of mental disease or defect (a strained construction since the affidavit used the words mental incompetence which parallel those in the paragraph relating to the information furnished by Mr. LC), it is not sufficient to convert the complaint to an information. This is so because the affidavit is not sufficiently clear that it is not based on hearsay. The injury affidavit is susceptible of two equally fair interpretations, the confusion arising from the use of the words upon information and belief. Does the affidavit mean that (to state it differently) the assertion of mental incompetence, which is alleged in the complaint to be upon information and belief, is true or does it mean that Mr. LC has reviewed the complaint and the medical records and that, upon information and belief, the assertion of mental incompetence is true? If the first interpretation is accepted then the affidavit might be sufficient to convert the complaint to an information; if the latter, clearly it is not. 2 Additionally, there is no statement as to Mr. LC’s education or experience to justify the conclusion that he is competent to read, interpret and render an opinion based on medical records, although the defendant has not objected on that ground.
While the Bronx Developmental Center is a school in the Office of Mental Retardation (M.H.L. 13.17) and only mentally retarded persons are admitted as residents (M.H.L. 15.03) 3 there is no allegations in either the complaint or the personal injury affidavit that the complaining witness is a resident of that school. Had there been such an allegation of residence perhaps the court could take judicial notice of the complaining witness’ mental condition 4 but that possibility is not present here.
Accordingly, until the People file a proper corroborating affidavit to the effect that the complaining witness is a person unable to care for herself because of mental disease or defect the court cannot deem the complaint to be an information.
For the guidance of counsel the court will address certain issues which will arise under any speedy trial motion which may be made at a later date. On August 25, 1987 the People filed the LC affidavit and asked that the matter be adjourned until September 3rd. The court reserved decision on whether to deem the complaint converted to an information but, for C.P.L. 30.30 purposes, charged nine days to the People. Thereafter, on September 3rd the court continued to reserve decision on the conversion but indicated on the record that the court’s then inclination was to regard the affidavit as sufficient to convert. In that light the defendants agreed to voluntary discovery, a motion schedule was fixed and the matter adjourned to November 10th for the filing of discovery motions. The court also announced that this adjournment period was to be excluded from C.P.L. 30.30 calculations. The within ruling that the LC affidavit does not convert the complaint to an information does not require that the C.P.L. 30.30 determinations be changed. The People filed the accident affidavit in good faith and were entitled to rely on the court’s statement that it would probably deem the complaint an information as of the date the affidavit was filed. This is what distinguishes the present case from People v. Rodriguez. In effect, the adjournment here was at the court’s request for time to decide the People’s application to convert the complaint to an information (C.P.L. 30.30(4)(a)). None of the time from September 3rd to November 10th is to be charged to the People if they file a satisfactory corroborating affidavit on or before that latter date.