STATE OF NEW JERSEY v. ALMIR P. DeSOUZA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0748-08T40748-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALMIR P. DeSOUZA,

Defendant-Appellant.

______________________________

 

Submitted January 21, 2010 - Decided

Before Judges Stern and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 92-06-0880.

Yvonne Smith Segars, Pubic Defender, attorney for appellant (Cynthia A. Smith, Designated Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel; Daniel J. Eastmond, Legal Assistant, on the brief).

PER CURIAM

This is an appeal of the denial of post-conviction relief ("PCR"). After a 1993 jury trial, defendant Almir DeSouza, a Brazilian immigrant, was found guilty of murdering his girlfriend with a knife. He also was convicted of certain weapons offenses. Defendant was sentenced to a custodial term of sixty years, with a thirty-year period of parole ineligibility.

Defendant filed a direct appeal to this court raising certain issues not germane to the present appeal. We affirmed defendant's murder conviction and his sentence in an unpublished decision. See State v. DeSouza, No. A-5452-92 (App. Div. July 6, 1995) (slip op. at 5), certif. denied, 142 N.J. 574 (1995), cert. denied, 516 U.S. 1147, 116 S. Ct. 1019, 134 L. Ed. 2d 99 (1996).

Defendant then filed an initial PCR application with the trial court. He claimed that he had been denied a fair trial because of his alleged inability to speak or understand English, asserting that the trial court should have translated the proceedings for him with a Portuguese interpreter. Although we do not have the transcripts of the trial, the papers submitted to us suggest that a Portuguese interpreter was apparently present for at least part of the trial, but only to repeat defendant's testimony (which he gave in broken English with a thick accent) into more understandable English. The interpreter evidently did not translate the testimony of the other witnesses to defendant, nor the statements made during the course of the trial by the judge and by counsel.

The judge hearing the first PCR application ("the first PCR judge") denied it, concluding that defendant did not request_ and that he did not need_an interpreter at his trial. We dismissed defendant's appeal of that ruling on procedural grounds, without prejudice, because he had not supplied us with a copy of the first PCR judge's findings and with a transcript of the PCR proceedings, as required under the Rules of Court. See State v. DeSouza, No. A-3987-98 (App. Div. Dec. 14, 2000) (slip op. at 3).

Defendant then filed a second PCR petition. He renewed his claim that he should have been provided with an interpreter at trial. He disputed several of the first PCR judge's findings, including the finding that he had not requested an interpreter when his case was tried. Defendant specifically alleged that he had sent the court a letter before trial seeking an interpreter, but that for some reason the letter had not been routed to the trial judge. He further argued that his trial attorney was constitutionally ineffective in failing to reinforce and pursue that interpreter request.

The trial court denied the second PCR petition. However, in November 2005, we remanded the matter to the trial court. We found that defendant had raised a prima facie case of lack of fluency sufficient to warrant an evidentiary hearing on the issue, with witnesses. See State v. DeSouza, No. A-3885-02 (App. Div. Nov. 29, 2005) (slip op. at 15). We instructed that the PCR court should apply the lack-of-fluency standards set forth in the Federal Court Interpreters Act, 28 U.S.C.A. 1827, cited by Judge Fuentes in State v. Rodriguez, 294 N.J. Super. 129, 138 (Law Div. 1996). We further stated that "if it is determined [after the evidentiary hearing] that defendant qualified for an interpreter, his [trial] attorney's failure to request one is not only dispositive, it constitutes ineffective assistance of counsel." DeSouza, supra, No. A-3885-02 (slip op. at 16); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (delineating the constitutional test for ineffective assistance of counsel); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland standard under New Jersey law).

In remanding the PCR matter, we recognized that there were several unresolved factual issues, including why defendant did not reiterate his request for an interpreter at trial. We also directed the trial court to explore with defendant's trial attorney, who was not fluent in Portuguese, his ability to communicate with his client during the trial. Since the first PCR judge had twice ruled on defendant's petition, and had made some erroneous factual findings, we instructed that the evidentiary hearing be conducted by a different judge. DeSouza, supra, No. A-3885-02 (slip op. at 16-17).

On remand, Judge Bette E. Uhrmacher conducted several intermittent days of evidentiary hearings in 2006, 2007, and 2008. The judge heard testimony from several witnesses, including the victim's mother, two of the victim's co-workers, a State Police officer who administered the Miranda warnings to defendant, a detective from the Monmouth County Prosecutor's Office who took a statement from defendant in 1992 about an escape attempt at the jail in which he was incarcerated, and defendant's former trial counsel. The judge also took testimony at the PCR hearing from defendant himself, which was generally provided with the aid of an interpreter, although at times defendant replied in English before the questions were translated.

Following the remand hearing, Judge Uhrmacher wrote a detailed opinion, dated June 17, 2008, rejecting defendant's claim that he was entitled to an interpreter and that his former attorney was ineffective in not securing one. The judge found the State's witnesses credible and defendant's testimony, by contrast, incredible and plagued with inconsistencies. The judge found that defendant had made several admissions that he could understand English, including one made to the court in an "unguarded moment" describing his ability to speak English at work.

On the present appeal, defendant argues that Judge Uhrmacher incorrectly concluded that a person's capacity to take part in "simple, social conversations" in English means that his or her English skills were sufficient to enable him to fully participate in his defense. The State argues that Judge Uhrmacher applied the law correctly, and that her credibility and other factual determinations warrant our deference.

The applicable law concerning a criminal defendant's right to an interpreter is well established. "[A] defendant who is unable to speak and understand English has a right to have his trial proceedings translated so as to permit him to participate effectively in his own defense." State v. Kounelis, 258 N.J. Super. 420, 427 (App. Div.), certif. denied, 133 N.J. 429 (1992); see also State v. Guzman, 313 N.J. Super. 363, 377-79 (App. Div.), certif. denied, 156 N.J. 424 (1998); Rodriguez, supra, 294 N.J. Super. at 133-34. However, the mere fact that English is not a defendant's first language, or that he speaks English with an accent, is not in and of itself sufficient grounds to compel the appointment of an interpreter. It is within the sound discretion of the court to evaluate the ability of the litigant to comprehend and to make himself understood in the English language. State in re R.R., 79 N.J. 97, 117 (1979) (citing State v. Milosh, 5 N.J. Misc. 120, 121 (Sup. Ct. 1927)).

Consistent with our normal scope of review, we defer to the factual findings of Judge Uhrmacher, who concluded from the extensive testimony that defendant had sufficient proficiency in English to comprehend the trial proceedings without an interpreter. Her findings are amply supported by substantial credible evidence in the record. State v. Locurto, 157 N.J. 463, 474-75 (1999).

Among other things, we note that the victim, with whom defendant co-habitated and dated for several months, did not speak Portuguese, and that defendant routinely spoke English at social and family gatherings. Moreover, defendant's former trial counsel emphatically attested that defendant never exhibited difficulty communicating in English about important subjects germane to his defense, such as a potential claim of self-defense and when the two of them reviewed the discovery materials turned over by the State. Furthermore, as in Guzman, defendant "never indicated that [he] was having difficulty keeping up with the proceedings . . . [.]" Guzman, supra, 313 N.J. Super. at 379.

We are also satisfied that Judge Uhrmacher was cognizant of the proper legal standards and applied them correctly. Her opinion cited and applied pertinent case law, including Rodriguez, Kounelis, and Guzman. In applying that case law, Judge Uhrmacher did not rely exclusively upon the proofs that defendant spoke English capably in casual settings. To the contrary, the judge also examined defendant's ability to comprehend English in more formal or serious settings, including his discussions with counsel before and during the trial. The judge's observations about defendant's demonstrated and perhaps unwitting fluency in English during the PCR hearing itself are particularly telling in this regard.

 
Consequently, the dismissal of defendant's PCR petition is affirmed, substantially for the cogent reasons set forth in Judge Uhrmacher's letter opinion dated June 17, 2008.

The same judge who heard the first PCR petition heard the second petition as well.

The hearings were postponed several times due to various scheduling complications, mainly due to the extensive other trial commitments of defendant's PCR attorney.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)

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A-0748-08T4

April 8, 2010