Opinion
570161/20
02-28-2022
The PEOPLE of the State of New York, Respondent, v. Ellen OXMAN, Defendant-Appellant.
Per Curiam.
Judgment of conviction (Phyllis Chu, J.), rendered August 14, 2019, affirmed.
Defendant's contention that she was so hearing impaired as to require interpretive assistance pursuant to Judiciary Law § 390, is unpreserved (see People v Robles , 86 NY2d 763, 765 [1995] ), since defendant did not raise the issue at any point in the proceedings below. Defendant cannot be permitted to sit by without raising the issue or asking her attorney to do so, and then claim that her conviction should be vacated because of a matter which would have been obvious to her and for which a remedy was readily available if requested (see United States v Vargas , 871 F Supp 623, 625 [SDNY 1994] ).
Nor was there any obvious impairment necessitating the provision of an interpreter by the court, sua sponte (see People v Robles , 86 NY2d at 764-765 ; People v Ramos , 26 NY2d 272, 275 [1970] ; People v Phillips, 265 AD2d 237 [1999], lv denied 94 NY2d 906 [2000] ). Although defendant used a "personal amplifier" at trial, the record does not indicate that she had any difficulty communicating with counsel or understanding the proceedings, and, notably, defendant does not even make such a claim now. Thus, on this record, there is nothing to indicate that the judge was or should have been aware that her hearing problems left her unable to comprehend the proceedings.
In any event, even assuming, arguendo, that an accommodation was required, the remedy for the court's failure to do so would be a new trial (see People v Nowakowski , 13 Misc 3d 127[A], 2006 NY Slip Op 51670[U] [App Term 2d Dept, 9th & 10th Jud Dists 2006]). However, the only relief defendant requests is vacatur of her conviction and dismissal of the accusatory instrument. Since it cannot be said that no penological purpose would be served by remanding the matter to Criminal Court on these serious charges, dismissal is not warranted and we affirm on this basis as well (see People v Conceicao , 26 NY3d 375, 385 n [2015] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
All concur.