Opinion
February 14, 1995
Appeal from the Supreme Court, New York County (Herbert J. Adlerberg, J.).
Defendant's claim that a Spanish interpreter was not present at sentencing is unpreserved for this Court's review. Were we to review the claim in the interest of justice, we would find that it has no merit. While the first indication that the interpreter was present only appears in the latter pages of the minutes, defendant failed to rebut the presumption of regularity that the interpreter was present when the proceedings commenced and that the entry regarding the interpreter's presence was made by the stenographer belatedly (People v. Glass, 43 N.Y.2d 283). Tellingly, defense counsel, who presumably needed the interpreter to confer with defendant, never stated that the interpreter was not present.
Defendant also asserts that he was denied his right to address the court at sentencing because the court did not ask him directly if he wished to make a statement. This argument is unpreserved as a matter of law since defendant never made this claim at sentencing (People v. Maldonado, 199 A.D.2d 40, lv denied 82 N.Y.2d 927). However, CPL 380.50 provides that before pronouncing sentence, the court must ask the defendant whether he wishes to make a statement personally on his own behalf (see, People v. Wade, 49 A.D.2d 770). While substantial rather than literal compliance with the statute has been held sufficient in certain cases (People v. McClain, 35 N.Y.2d 483, 491-492, cert denied sub nom. Taylor v. New York, 423 U.S. 852), where an interpreter is required, it is necessary that the defendant have the invitation to speak on his own behalf directed to him separately and an answer elicited (People v. Diaz, 44 A.D.2d 799). Here, inquiry from the court was directed only to counsel and no response was elicited. Defendant's later denial of guilt while the plea was being entered suggests the possibility that his earlier silence was due to the fact that he did not understand the court's earlier inquiry. Moreover, in light of the fact that defendant's sentence was increased from to 6 years to life to 12 1/2 years to life due to his failure to return to the court for sentencing after bail was posted, it is likely that defendant would have wanted to make a statement regarding his sentence. Thus, we remand for resentencing.
Concur — Murphy, P.J., Rosenberger, Nardelli and Williams, JJ.