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The People of the State of New York, Respondent v. Dmitriy Shenker

May 21, 2012


Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Geraldine Pickett, J.), rendered April 19, 2010.

People v Shenker (Dmitriy)

Decided on May 21, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.


The judgment convicted defendant, after a non-jury trial, of sexual abuse in the third degree and harassment in the second degree.

ORDERED that the judgment of conviction is affirmed.

Defendant, whose native language is Russian, immigrated to the United States in April of 1994 and subsequently became a naturalized United States citizen. Prior to a non-jury trial, a court-appointed interpreter was requested, but when trial commenced, defendant expressly waived his right to an interpreter. The trial spanned four days, and defendant never revoked his earlier waiver of his right to have an interpreter present. Defendant testified in English and alerted the Criminal Court whenever he did not understand a question, whereupon the question was rephrased to clear up any misunderstanding or confusion. Following the trial, defendant was convicted of sexual abuse in the third degree (Penal Law § 130.55) and harassment in the second degree (Penal Law § 240.26 [1]). On appeal, defendant contends that the judgment of conviction should be reversed because he was denied his right to a fair trial. Specifically, defendant contends that since he does not adequately understand the English language, he was not "present" at his trial, and therefore unable to defend himself and effectively testify at trial.

It is well established that "[c]rucial to the defendant's right to assist in his own defense are the rights to be present at his trial and to comprehend the proceedings before him" (People v De Armas, 106 AD2d 659, 660 [1984]). "For the constitutional right to be present during a trial to be meaningful, a defendant has the right to have the testimony interpreted to him in a language which he understands so he may meaningfully participate in his own defense" (People v Warcha, 17 AD3d 491, 492 [2005]; see also People v Ramos, 26 NY2d 272, 274 [1970]; People v Perez, 198 AD2d 446, 447 [1993]). "[W]here the court is put on notice that a defendant has difficulty understanding or speaking the English language, [the court] must make unmistakably clear to him that he has a right to have a competent translator assist him, at state expense if need be'" (People v Navarro, 134 AD2d 460, 460 [1987], quoting United States ex rel Negron v State of New York, 434 F2d 386, 390-391 [1970]). However, the right to an interpreter may be waived (see Ramos, 26 NY2d at 274). "Only when it becomes acutely obvious [to the court] that the defendant is exhibiting an inability to understand the trial proceedings or to communicate with his counsel due to a language barrier should the court take affirmative steps to determine the need of an interpreter" (Ramos, 26 NY2d at 275; Warcha, 17 AD3d at 492). It "is within the sound discretion of the court to decide whether an appointment of an interpreter is necessary" (Navarro, 134 AD2d at 460) since the trial judge "is in the best position to make the fact-intensive inquiries necessary to determine whether there exists a language barrier such that the failure to appoint an interpreter will deprive the defendant of his or her constitutional rights" (Warcha, 17 AD3d at 493).

In the case at bar, defendant orally waived having an interpreter present at trial. Defendant is a long-time resident of the Unites States and, during trial, demonstrated an ability to speak and understand the English language. On the occasions when defendant exhibited some misunderstanding, the court, along with defense counsel and the prosecutor, accommodated defendant by rephrasing questions in order for him to comprehend the particular inquiries. Under the circumstances, we find no reversible error in the trial court's failure to have an interpreter present, since defendant has not established that he was so prejudiced by his alleged inadequate understanding of the English language as to have been denied his due process right to be present at trial.

To the extent that defendant's assertion that he was deprived of the effective assistance of counsel, based on a claim that the attorney wanted a quick trial and did not insist on having an interpreter present, can be reviewed upon the record presented, we find that the record indicates that defense counsel provided defendant with meaningful representation in accordance with the New York State standard (see NY Const, Art I, § 6; People v Ford, 86 NY2d 397 [1995]; People v Johnson, 71 AD3d 1048 [2010]). Moreover, defense counsel's performance cannot be characterized as either deficient or prejudicial to defendant and, thus, was also in accordance with the federal standard (see US Const Amend VI; Strickland v Washington, 466 US 688 [1984]).

Accordingly, the judgment of conviction ...

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