Opinion
01 Civ. No. 9376 (GEL)
July 23, 2002
Young Yee Sin, pro se, for Petitioner Young Yee Sin.
Beth J. Thomas, Assistant Attorney General, New York, New York (Ehot Spitzer, Attorney General of the State of New York, on the brief), for Respondent Brian S. Fischer.
OPINION AND ORDER
Young Yee Sin petitions for a writ of habeas corpus to challenge his conviction in New York County Supreme Court for robbery and burglary, and his resulting sentence of eight to sixteen years' imprisonment. Petitioner argues that the trial court denied him a fair trial and the effective assistance of counsel by denying permission for his lawyer's assistant, who was fluent in Mandarin, to sit at counsel table and interpret between petitioner and his lawyer. The State responds that the Constitution was not violated because petitioner at all times had access to a court-appointed translator. While there is no apparent reason why petitioner's request should have been denied — if denied it was — petitioner has not established any violation of his constitutional rights, and his petition will accordingly be denied.
BACKGROUND
Petitioner was convicted in 1994 of a home-invasion robbery in Chinatown. Petitioner, two of the prosecution witnesses, and two defense witnesses all spoke Mandarin Chinese but not English. Accordingly, an official court interpreter was present at all stages of the trial, translating the testimony of the prosecution's first two victim-witnesses and that of two of the three defense witnesses. The other witnesses for both sides testified in English.
On the morning of the second day of trial, defense counsel sought permission from the court to have his assistant, a Mandarin speaker, sit at counsel table to facilitate consultation between counsel and petitioner. The transcript records the following discussion of the Issue:
MR. MARKS [Counsel for Petitioner]: With the Court's permission, I would like my assistant, who speaks Mandarin, to sit at counsel table with me, so I can confer with my client. So [I] can confer with my client through my assistant.
THE COURT: You have a problem with that?
MR. MAHONEY [Counsel for Respondant]: No, except that the witness speaks English. All of my witnesses from now on will testify in the English language.
THE COURT: Maybe. He has an official interpreter.
MR. MARKS: So I can confer with him.
THE COURT: You can do that through the official Chinese interpreter.
(Trial Tr. 85-86.)
Following this colloquy, the trial resumed, evidently without the assistant present at counsel table. The remaining prosecution witnesses testified in English, as did one defense witness. As noted above, two defense witnesses testified in Chinese through the interpreter. So far as the record reveals, neither petitioner nor his lawyer made any further requests for translation assistance, either to renew the application for the presence of the legal assistant or to seek the services of the official interpreter for consultation between petitioner and his attorney.
At the conclusion of the one-week trial, petitioner was found guilty, and he was subsequently sentenced. Petitioner appealed, asserting the same arguments advanced here. But the Appellate Division affirmed his conviction, noting that petitioner "was afforded unrestricted access to the official court interpreter and has made no showing of any need for a second interpreter." People v. Young Yee Sin, 718 N.Y.S.2d 333, 334 (1st Dept. 2000). Leave to appeal to the Court of Appeals on the same ground was sought and denied. 96 N.Y.2d 870 (2001). Having thus exhausted his state appeals on this issue, petitioner filed this application for habeas corpus on September 12, 2001.
For reasons unclear in the record, petitioner's case made slow progress through the state courts. The jury returned its guilty verdict on June 23, 1994, but petitioner xvas not sentenced until November 20, 1995. His brief was not filed in the Appellate Division until September 2000. That Court affirmed on December 28, 2000, and leave to appeal was denied on June 29, 2001.
DISCUSSION
Characterizing the colloquy with the trial court as a denial of his request for the services of the lawyer's assistant as translator, petitioner argues that the decision to deny his request was arbitrary and unreasonable, and deprived him of a fair opportunity to consult with counsel during the trial.
For a trial judge arbitrarily to deny permission for a translator to sit between defendant and counsel during the trial would be an unsettling departure from fair play. While a trial judge has broad discretion to manage courtroom logistics, see, e.g., Morris v. Slappy, 461 U.S. 1, 11 (1983), United States v. Blackwood, 456 F.2d 526, 529 (2d Cir. 1972), both civil and criminal trials take place every day, in courtrooms across the country, with multiple lawyers, paralegals, legal assistants, police officers and other personnel assisting one side or the other at counsel table. Certainly a judge has and should freely exercise power to limit the hordes in the interests of order, but it is not apparent how it threatens orderly courtroom procedure is threatened if a single lawyer in a one-defendant trial has the assistance of a single staff member, particularly for a significant reason such as facilitating communication between client and counsel. In this case, neither the prosecutor nor the judge suggested any reason why the assistant's presence should be denied, and the State offers none to this Court.
However, it is not for a federal court sitting in habeas to police exercises of a state trial judge's discretion, or to second-guess the state appellate courts, who do have that responsibility. Rather, this Court's role is limited to determining whether petitioner's rights under the federal Constitution were violated. More specifically, since the state courts adjudicated petitioner's claim on the merits, this Court may not grant the writ unless the state courts' decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254 (d)(1).
The Supreme Court has never decided what degree of interpretive assistance is constitutionally required for non-English speaking defendants. See United States v. Deist, 384 F.2d 889, 901 (2d Cir. 1967) (noting lack of Supreme Court precedent); see also United States v. Johnson, 248 F.3d 655, 663 (7th Cir. 2001) (noting that the Supreme Court has not even specifically found a constitutional right to any interpreter at all). As the State wisely concedes, however, this absence of direct precedent does not foreclose petitioner's claim. Supreme Court precedent has clearly established that defendant's constitutional right to counsel "requires the guiding hand of counsel at every step in the proceedings,"Powell v. Alabama, 287 U.S. 45, 69 (1932), and that the constitution is violated where a defendant was deprived of the right to consult counsel during an overnight recess in the trial, Geders v. United States, 425 U.S. 80 (1976). Similarly, the Court has held that a defendant's constitutional right to be present at his trial requires "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." Dusky v. United States, 362 U.S. 402 (1960). Petitioner is clearly correct that it would be an "unreasonable application" of such decisions if a court, absent compelling necessity, denied a non-English speaking defendant the right to understand the proceedings against him, or to consult with counsel during his trial, by denying the services of an interpreter who stood ready to provide translation. It is no surprise that the federal appellate authority has long been unanimous that trying a non-English-speaking defendant without an interpreter violates due process. See, e.g., United States ex rel. Negron v. State, 434 F.2d 386, 389-90 (2d Cir. 1970); United States v. Lim, 794 F.2d 469 (9th Cir. 1986); Johnson, 248 F.3d at 663-64.
But that is not what happened here. First, the colloquy on which petitioner relies can only with some imagination be construed as a denial of the presence of the legal assistant. Counsel requested permission for her to be present, the prosecutor explicitly declined to object, and the trial judge's response, saying "Maybe" and noting the availability of the official interpreter, was hardly an authoritative negative ruling. Defense counsel, far from pressing the point or even seeking a definitive answer, then abandoned the application. The court did not prohibit the legal assistant's presence for translation during recesses, and proffered the official interpreter for consultations during trial proceedings. Neither petitioner nor his lawyer made any further request to the judge for additional translation assistance by either interpreter. The record does not disclose what if any private consultations took place with either person, but it is clear that the defense at no further point in the trial indicated any discontent with the arrangements for consultation, or any need for additional services. Under these circumstances, the record does not clearly reflect a ruling by the court precluding use of the legal assistant, rather than a passing request that was abandoned by petitioner before a final ruling was made.
Second, even construing the trial judge's ruling as an outright rejection of the request for the translator's presence, the state courts' action cannot be considered an unreasonable application of clearly-established constitutional law. The court did not deny petitioner an interpreter; an official court interpreter was present throughout the trial, and petitioner "was afforded unrestricted access to the official court interpreter." 718 N.Y.S.2d at 334. Nothing impeded petitioner's ability to consult with counsel and provide input during recesses in the trial, or to seek additional recesses if such were necessary to provide information or seek advice during testimony. The need for counsel to concentrate on testimony and the demands of courtroom decorum realistically limit the amount of consultation between counsel and even English-speaking clients while the trial is in progress; any inability to consult while the official interpreter was busy translating testimony thus imposed only a modest additional impediment. Petitioner makes no showing, or even suggestion, of any way in which his defense was prejudiced by the absence of a second translator from counsel table. As noted above, the defense made no further request for additional interpretive services during the trial. Even with the benefit of hindsight, neither on appeal nor in this Court has petitioner indicated a single point in the trial at which input from the defendant was thwarted, or at which such input could have affected the course of the proceedings.
Thus, whether or not it would have been more fair to accommodate petitioner's request, clearly-established federal precedent does not dictate the conclusion that its denial violated his constitutional rights. This conclusion is supported by federal appellate case law. The same courts of appeals that have recognized a constitutional right to interpretation have refused to impose constitutional restrictions on a trial judge's discretion in the appointment and use of court interpreters. See, e.g., Gonzalez v. United States, 33 F.3d 1047 (9th Cir. 1994); Johnson, 248 F.3d at 663; Lim, 794 F.2d at 471. Certainly, neither party cites, nor has the Court found, any case in which a court has ever held that there is a constitutional right to the presence of a second interpreter, and at least two courts of appeals have rejected that very claim. Johnson, 248 F.3d at 664; United States v. Bennett, 848 F.2d 1134, 1139-41 (11th Cir. 1988). See also Suarez v. Stinson, 1999 WL 335373 (S.D.N.Y. May 26, 1999); People v. Colon, 623 N.Y.S.2d 633 (2d Dept. 1995).
People v. DeArmas, 483 N.Y.S.2d 121 (2d Dept. 1984), on which petitioner relies, is not to the contrary. In that case the Appellate Division found it was error for a trial judge to refuse to permit a defendant either to use the court interpreter or to provide his own interpreter, thus completely denying him the right to consult counsel during the trial. As noted above, the court here permitted petitioner to use the court interpreter.
Finally, petitioner's belated contention that the assistant was a member of the defense legal team, and that the denial of her presence therefore denied his right to counsel (Pet. 8-11), is without merit. This claim was never presented to the trial court, which was only requested to permit her presence as an interpreter, or to the Appellate Division and has therefore been waived.
CONCLUSION
For the reasons stated above, the challenged ruling of the state courts was neither contrary to, nor an unreasonable application of clearly established federal law. The petition for habeas corpus is accordingly denied and the petition is dismissed with prejudice. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253 (c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).