People v Elensky (Iosif)
Annotate this CaseDecided on December 29, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2003-1254 K CR.
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
against
IOSIF ELENSKY, Appellant.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Wayne P. Saitta, J.), rendered July 30, 2003. The judgment convicted defendant, after a nonjury trial, of attempted petit larceny.
Judgment of conviction unanimously affirmed.
Defendant was tried on an accusatory instrument charging him with petit larceny (Penal Law § 155.25) for stealing metal scaffolding from 27 Skillman Street, Kings County, and putting it inside a small bus without authority or permission. The owner of the premises and scaffolding testified that the scaffolding had a value of $4,500 to
$5,000 and that it had been chained to a wall with a very heavy chain and lock. The People also introduced the testimony of an eyewitness who claimed that he saw defendant with two others removing the scaffolding and placing it into the small bus.
Through cross-examination, introduction of an exhibit and argument, defense counsel attacked the credibility of the People's witnesses, showing, inter alia, that the owner did not have a good landlord-tenant relationship with defendant, that there was a financial motive for an eviction of defendant from the subject building, that the purported eyewitness was a friend of the owner and belonged to a business which had occupied premises in the building, and that there had been discrepancies about the precise date and other circumstances of the incident. [*2]Subsequently, counsel answered, "No," upon being asked by the court if he was calling any witnesses.
A Russian interpreter was "required and present" throughout the trial and sentencing. After the parties' summations on the last day of the trial, the court announced that it would reserve decision until 3:00 P.M. The following ensued:
"THE COURT: Okay 3:00.What is he asking?[DEFENSE COUNSEL]: He has given me several notes through this whole thing and none of it is English. He has written it in Russian.THE COURT: The point is he decided not to testify. He can't substitute. He can't give written statements.[DEFENSE COUNSEL]: It would not be fair for me to comment. Again, he is not a witness. He decided not to take the witness stand. He made several written statements I would be happy to share it with the prosecutor.[ASST. DISTRICT ATTORNEY]: I am not going to look at them.THE COURT: I am not going to accept them at this point.Three o'clock.THE DEFENDANT: I would like the Judge to read it.THE COURT: If you wanted to tell the Court something you would have to take the stand and be subject to cross examination. You can't submit written statements.(Brief recess)COURT OFFICER: Number three, Iosif Elensky. Russian interpreter is required and present.
* * *
[DEFENSE COUNSEL]: He wants to say something.THE COURT: He is not entitled to make a statement at this point. He had an opportunity to testify.[DEFENSE COUNSEL]: I would like you to read this paper.[*3]THE COURT: I can't take any statements at this time.Is the defendant ready for this verdict?
* * *
THE COURT: I find the defendant guilty of attempted petit larceny, 110 155.25.Counsel, do you wish to make a statement before sentence?THE DEFENDANT: I am not guilty. I want you to read that.[DEFENSE COUNSEL]: Before sentencing I guess so. He is entitled to make a statement.THE COURT: He can make a statement now.[DEFENSE COUNSEL]: I will read what he says and I guess whether I agree or disagree with the verdict is not relevant. During the trial, two days ago, I heard a witness that testified that he saw me taking once by the bus 27 units of scaffolding with the dimensions of 12 feet by five feet each . . . . I would like to point out that it is absurd because the dimensions of those units are such that they would not even pass through the door opening that is 49 inches by 53 inches. A witness was changing his testimony several times. That is obvious from the police report. Moreover, the fact is that I was the one who called the police twice but because of my poor command of English language I was handcuffed and suffered from the police. First time I called the police because I was assaulted by the landlord who checked me off by his car and beat me heavy accusing me of stealing some scaffold. When the police arrived I was offered a deal of involving the charges of stealing if I would from' [sic] the charges of assault. The second time I called 911 because my business suffered a loss from the landlord's actions. I brought with me two people, Stanley Scott, 2064 Nostrand Avenue and Nuyan Couscaia (phonetic) for documenting the loss by taking pictures and was intending to file a police report, but instead I was handcuffed again and taken to the precinct where I was offered again to drop the charges of assault against the landlord for my freedom. I suffered severe headaches and pain in my chest and was taken to a hospital where I spent five days. Please help me and let the truth ring. Respectfully Iosif Elensky.THE COURT: Counsel, do you wish to add anything?[DEFENSE COUNSEL]: No.[*4]
* * * THE COURT: The sentence imposed will be a 300 dollar fine and 120 dollars mandatory surcharge. I assume he needs time to pay?THE DEFENDANT: I am not guilty. I think I will be filing a notice of appeal."
A review of the record discloses that much of what defendant sets forth as facts underlying his contentions on this appeal is dehors the record. It is clear that defendant's first language was Russian but that does not necessarily mean that he had an inability to comprehend English. In any event, it would be sheer speculation to hold, as defense counsel contends herein, that an inability to understand English "may" have prevented defendant from understanding that he had a right to testify, particularly in the absence of any express assertion to this effect on the record, as well as counsel's statement that defendant "decided not to take the witness stand." Indeed, it was "reasonable for the court to believe that any dispute about whether or not the defendant
should testify was resolved between counsel and the defendant before the trial started" (People v Dolan, 2 AD3d 745, 746-747 [2003]).
There is no requirement that defendant personally waive his right to testify on the record (People v Fratta, 83 NY2d 771, 772 [1994]; People v Menner, 2 AD3d 650, 651 [2003]). A court does not have "a general obligation to sua sponte ascertain if the defendant's failure to testify was a voluntary and intelligent waiver of his right" (Dolan, 2 AD3d at 746). The time for defendant to offer evidence in his own defense was after the People had presented their case (CPL 260.30 [5], [6]), and the court did not abuse its discretion by declining to alter the order of the trial and to allow testimony after the summations (see People v Franco, 271 AD2d 383 [2000]). Furthermore, defendant was not denied his right to effective assistance of counsel since, "[h]ere, the record demonstrates that the defense counsel effectively cross-examined the People's witnesses, delivered a cogent opening and closing statement, and presented a plausible defense" (Dolan, 2 AD3d at 747; People v Groonell, 256 AD2d 356, 357 [1998]), and "[t]hus, the defendant was provided with meaningful representation" (Dolan, 2 AD3d at 747; see also People v Baldi, 54 NY2d 137 [1981]). [*5]
The issue of whether there should have been a second Russian interpreter was not raised in the court below and is unpreserved for this appeal (CPL 470.05 [2]; People v Lopez, 251 AD2d 514 [1998]).
Decision Date: December 29, 2005
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