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March 26, 1970

UNITED STATES of America ex rel. Rogelio Nieves NEGRON, Petitioner,
The STATE OF NEW YORK, Respondent

Bartels, District Judge.

The opinion of the court was delivered by: BARTELS

BARTELS, District Judge.

On March 10, 1967, Rogelio Nieves Negron was sentenced in the County Court, Suffolk County, to a term of twenty years to life after a jury verdict finding him guilty of murder in the second degree, which judgment was affirmed, without opinion, by the Appellate Division, Second Department, on April 27, 1968, People v. Negron, 29 A.D. 2d 1050, 290 N.Y.S. 2d 871. Leave to appeal to the New York Court of Appeals was denied on July 12, 1968, and certiorari to the United States Supreme Court was also denied on June 2, 1969, Negron v. New York, 395 U.S. 936, 89 S. Ct. 2000, 23 L. Ed. 2d 452. In this posture of the case Negron files a pro se application for a writ of habeas corpus. The issue to be decided is whether there was an obligation upon the State court to advise Negron that, if he so desired, he was entitled to a court-appointed interpreter to translate the testimony of the English-speaking witnesses either for or against him, and whether the failure to so advise Negron and to appoint such an interpreter deprived him of his constitutional rights under the Sixth and Fourteenth Amendments.

 Testimony at the Trial

 Negron recently emigrated to the United States from Puerto Rico and had been in this country only a few months when he was arrested for murder. At the time of his arrest he was approximately twenty-three years old, indigent, and possessed only a sixth grade education. He neither spoke nor understood English, a handicap which he apparently retains to this day. At the time of the crime he was employed as a potato packer for the A & P Company at a farm in Riverhead, New York and lived in a small house with three co-workers, one of whom was Angel Luis Pagan and another was the victim, Juan Delvalle. From the record it appears that Negron had a wife and family in Puerto Rico, to whom he regularly sent $15 or $20 a week from his modest salary.

 At 5 P.M. on the day of the murder Negron started to cook the evening meal for the group. Prior to that time he and DelValle had been drinking and DelValle was drunk but Negron was not "very drunk." Between 6 and 6:30 P.M. an argument took place between DelValle and Negron in the presence of Pagan, which deteriorated to one of obscene name-calling and finally resulted in DelValle calling Negron a "cabron", meaning "cuckold." Negron resented this and told DelValle not to call him that again. DelValle rose, and pushed Negron, saying "I'll fight you any way you want." According to Pagan, Negron then proceeded to the kitchen, obtained a knife, and returned to DelValle and, putting the knife to DelValle's throat, said to him, "Call me cabron again, call me that again." At this moment Pagan saw nothing in DelValle's hands and said to Negron, "Don't do that." Pagan ran out to call Maximino Figueroa, a shop steward at the packing house, and when Pagan returned he said he saw Negron come out of the kitchen with the same knife he had held to DelValle's throat and that now the knife was bloody. As Negron came out of the house, according to Pagan, he said "He is dead, I killed him." Pagan and Figueroa entered the house and saw DelValle on the floor, face up, in agony and surrounded by blood. There was nothing in DelValle's hands.

 Detective Carlos Garcia testified that he arrived at the scene approximately one-half hour later, warned Negron of his rights and took him to the offices of the Seventh Police Squad, where Negron told Garica that DelValle and he had been drinking, that DelValle called Negron a "cabron", that Negron became angry, that DelValle pulled a knife and that a scuffle ensued during which DelValle was stabbed.

 Both at the Huntley hearing held prior to the trial and at the trial, police investigator Joseph Gallardo testified to several inculpatory admissions made by Negron at the station house. Negron at all times denied making these or any other inclupatory admissions. He took the stand in his own defense, asserting that it was DelValle who had the knife, that Negron became so startled that instead of retreating, went forward and a scuffle resulted, that all of a sudden DelValle grabbed his stomach and then Negron noticed the knife on the floor, picked it up and ran out. Only two of the State's fourteen witnesses, Pagan and Maxamino Diax, testified in Spanish and their testimony was translated by an offical court interpreter, Mrs. Elizabeth Maggipinto. The remaining twelve prosecution witnesses testified in English. Thus, as far as Negron was concerned, the bulk of the testimony of the witnesses against him was unintelligible and his attorney so stated in his summation.

 Prior to the selection of the jury the State court informed Negron's attorney that the court understood that the statutory "admonition" respecting challenges to the jurors would have to be communicated to Negron through an interpreter. Accordingly, the court appointed Mrs. Maggipinto "for this purpose." As the trial progressed, however, the interpreter was employed only when Spanish-speaking witnesses were testifying. Thus, she rendered a simultaneous translation of the testimony of Pagan, Diaz and Negron for the benefit of the court, the lawyers, and the jury. At no time, however, did Mrs. Maggipinto translate simultaneously or by summary the testimony of the English-speaking witnesses for the benefit of Negron, nor did the court direct her so to do. In other words, it was a one-way street.

 Testimony before this Court

 Negron, being indigent, was represented, both at the trial and at the habeas corpus hearing, by a representative of the Legal Aid Society. He testified that he neither understood the witnesses nor that he had a right to an interpreter. Negron's attorney and Mrs. Maggipinto testified that Mrs. Maggipinto met with Negron and his attorney during two brief recesses in the course of the three-day trial and that on these occasions Mrs. Maggipinto communicated to Negron, at least to some extent, the nature of the testimony of the English-speaking witnesses who had previously testified. *fn1" Negron denied that anyone ever told him the substance of the testimony of these English-speaking witnesses. Accepting the testimony of Negron's attorney and Mrs. Maggipinto, the ex post facto Spanish communications to Negron could not have been complete or verbatim and were hardly sufficient to satisfactorily apprise Negron of the nature and substance of the testimony against him with sufficient precision to enable him or his attorney to conduct a full, effective and contemporaneous cross-examination. As Mrs. Maggipinto testified, she was "the interpreter for the prosecution" and her primary function was to interpret the testimony of the Spanish-speaking witnesses in the case. She further testified that she was not in court during all the proceedings but was present only about half a day, on the average, during the three-day trial. *fn2" Negron's attorney testified that he did not speak Spanish and that during a brief jail interview which constituted virtually the sum of his communication with Negron, the attorney was compelled to use the services of an interpreter.

 Right to Confrontation and Due Process

 It is manifest that Negron, an illiterate and indigent person, did not comprehend the testimony of the English-speaking witnesses during the period they were testifying. One of those witnesses, Joseph Gallardo, testified to an inculpatory statement and hence his testimony was crucial. In order to afford Negron his right to confrontation, it was necessary under the circumstances that he be provided with a simultaneous translation of what was being said for the purpose of communicating with his attorney to enable the latter to effectively cross-examine those English-speaking witnesses to test their credibility, their memory and their accuracy of observation in the light of Negron's version of the facts.

 While the record reveals that several of the questions posed by the prosecutor through the interpreter to Negron made reference to portions of the testimony of Pagan and other prosecution witnesses previously adduced, this random and haphazard approach could not protect Negron from the prejudice he may have suffered by not being able to instantly cross-examine these witnesses.

 This is not a case where a Spanish interpreter sat at the defense counsel table and was available for immediate consultation (Tapia-Corona v. United States, 369 F.2d 366 (9th Cir. 1966)), or where the defendant was able to afford a qualified interpreter. In United States v. Desist, 384 F.2d 889 (2d Cir. 1967), affirmed, 394 U.S. 244, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969), the court considered the problem of whether a French-speaking defendant had an absolute right to a free, simultaneous translation of English testimony where the request was not based upon indigency, concluding that under the circumstances ...

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