People v Maduro (Frank)

[*1] People v Maduro (Frank) 2010 NY Slip Op 50577(U) [27 Misc 3d 127(A)] Decided on March 30, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 30, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2008-525 Q CR.

The People of the State of New York, Respondent,

against

Frank Maduro, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Cesar Quinones, J.H.O., at suppression hearing; Joseph A. Zayas, J., on motion to suppress; Deborah Stevens Modica, J., on motion for subpoenas duces tecum; Ira Margulis, J., at trial and sentence), rendered February 4, 2008. The judgment convicted defendant, after a nonjury trial, of attempted sexual abuse in the second degree and attempted endangering the welfare of a child.

ORDERED that the judgment of conviction is affirmed.

Defendant's principal contentions, that the Criminal Court, in error, admitted defendant's inculpatory statement for which no CPL 710.30 notice was given, that prosecution witnesses should not have been permitted to testify to the complainant's prior consistent statements, and that the prosecutor, in summation, commented on defendant's exercise of his right to pre-arrest silence, are not preserved for appellate review, there having been no objection by the defense to any of the errors alleged (CPL 470.05 [2]; People v Beauliere, 36 AD3d 623 [2007]; People v Martinez, 9 AD3d 679, 680 [2004]; People v Shook, 294 AD2d 710, 712-713 [2002]; People v McCullough, 278 AD2d 915, 916 [2000]; People v Salaman, 231 AD2d 464, 465 [1996]; People v Neznanyj, 12 Misc 3d 143[A], 2006 NY Slip Op 51423[U] [App Term, 9th & 10th Jud Dists 2006]). In any event, a court sitting as the trier of fact is presumed to have considered only the competent evidence in reaching its verdict "despite awareness of facts which cannot properly be relied upon in making the decision" (People v Moreno, 70 NY2d 403, 406 [1987]; see People v Owens, 45 AD3d 1058, 1059 [2007]; People v Kolon, 37 AD3d 340, 342 [2007]; People v Tong Khuu, 293 AD2d 424, 425 [2002]; People v Gupton, 281 AD2d 963 [2001]; People v Gamez, 21 Misc 3d 134[A], 2008 NY Slip Op 52197[U] [App Term, 2d & 11th Jud Dists 2008]).

Defendant also challenges the denial of his motion to suppress his statements as the product of unwarned custodial interrogation, relying, in part, on testimony adduced at trial. Such [*2]evidence may not be invoked for the first time on appeal to support or attack the propriety of the determination of a suppression hearing (People v Gonzalez, 55 NY2d 720, 721-722 [1981]; People v O'Neil, 62 AD3d 727 [2009]). Defendant's remedies were a mistrial motion or a motion pursuant to CPL 710.40 (4) to reopen the hearing (e.g. People v Velez, 39 AD3d 38, 42 [2007]; People v John, 38 AD3d 568 [2007]). In any event, the hearing testimony established that a reasonable person in defendant's position, innocent of any crime, would not have believed he was subject to a restraint on freedom associated with an arrest when questioned by the detective (People v Hicks, 68 NY2d 234, 240 [1986]). Defendant voluntarily appeared at the police precinct with his companion, he was never handcuffed, and he was questioned in a nonthreatening manner for 40-45 minutes before the detective announced the arrest. The detective's subjective determination as to these matters is irrelevant to the determination of whether defendant was subjected to custodial interrogation. The hearing evidence does not support an inference that the detective had conveyed to defendant any belief as to defendant's guilt or that defendant was not free to leave. Under the totality of the circumstances (People v Casassa, 49 NY2d 668, 681 [1980]), the hearing court properly determined that there was no unwarned custodial interrogation (People v Paulman, 5 NY3d 122, 129 [2005]; People v Taylor, 57 AD3d 327, 328 [2008]; People v Dillhunt, 41 AD3d 216, 217 [2007]; People v Davila, 292 AD2d 315, 316-317 [2002]).

Defendant also argues that his discovery and Brady rights were violated when the Criminal Court denied his applications for subpoenas duces tecum to obtain the complainant's "mental history" and "psychological counseling" records which, he claims, the People had a duty to provide upon his specific demand for such matter. As there is no indication on this record that such documents existed, much less that they were exculpatory or were otherwise probative of the issue of the reliability of the complainant's testimony, the contention is dehors the record and should have been explored via a CPL 440 motion (People v Wilson, 283 AD2d 339, 340 [2001]). Further, insofar as the record permits review of this contention, defendant's arguments in the Criminal Court were directed not to compel the production of specific documents but to determine whether they existed and whether the contents thereof would support a proper challenge to the complainant's testimony, an improper basis for the relief sought (People v Gissendanner, 48 NY2d 543, 549-551 [1979]; see e.g. People v Carpenter, 240 AD2d 863, 864 [1997]; People v Arredondo, 226 AD2d 322 [1996]). We note that, at trial, defendant did not dispute the prosecutor's representation that her own inquiry of the complainant's school and various children's services agencies revealed no records of the nature sought. While the court granted the defense a subpoena duces tecum for certain records during the trial, there is no indication that the subpoenas were served or that any records were produced.

Defendant also argues that his due process right to be present at trial was compromised by the inability of the Spanish interpreter to understand his Spanish and the court's failure to appoint an interpreter proficient in Papamiento, defendant's native language (People v Ramos, 26 NY2d 272, 274 [1970]; People v Wong, 256 AD2d 724, 725 [1998]; People v Perez, 198 AD2d 446, 447 [1993]). First, there was no claim advanced at trial with respect to the interpreter's lack of competence or qualifications, nor has defendant established that at any juncture he was prejudiced by translation error occasioned by the interpreter's inability to comprehend or to render into proper English any particular utterance of defendant, who testified in Spanish, and [*3]who stated, in the course of that testimony, that he speaks Spanish and that Papamiento is "similar" to Spanish. Thus, he has failed to preserve for appellate review any error in relation to the interpreter's performance or the propriety of the use of a Spanish translator (CPL 470.05 [2]; People v Singleton, 59 AD3d 1131 [2009]; People v Warcha, 17 AD3d 491, 492 [2005]; People v Felix, 272 AD2d 410 [2000]; People v Fioravantes, 229 AD2d 784, 785 [1996]; People v Perez, 198 AD2d at 447; People v Reddish, 156 AD2d 195, 196 [1989]).

Were we to reach the merits with respect to this contention, we would find no error. Early in defendant's testimony, the Spanish interpreter, addressing the trial court sua sponte, stated that she was having difficulty understanding certain of defendant's statements. The trial court immediately halted the proceedings to inquire of defense counsel and defendant whether defendant was able adequately to express himself in Spanish. Defendant, who occasionally addressed the court in English, attributed his inability clearly to articulate Spanish to an affliction of Bell's palsy. Defense counsel stated her belief that Spanish is defendant's "spoken language" and that the only reason an interpreter was employed was to facilitate defendant's understanding of certain words which defendant might not readily understand, implying that defendant's comprehension of English was otherwise competent. The interpreter agreed that so long as defendant spoke slowly and distinctly, she could translate properly. The court invited defendant to bring the court's attention to any matter that he did not understand, and the proceedings continued with defendant's testimony. Thereafter, the record reveals no instance in which the interpreter had difficulty understanding defendant's testimony or in rendering his statements into English, nor did defendant protest that his statements were not accurately understood and translated or that he did not understand any of the English-language proceedings (cf. People v Pavao, 59 NY2d 282, 293 [1983]). It is not unusual for persons "adequately conversant with the English language" to prefer to testify in another language (People v Ramos, 26 NY2d at 275). Absent any indication that defendant was prejudiced by an error in the comprehension or translation of his statements (People v Singleton, 59 AD3d 1131) or that he was unable "to effectively communicate with his attorney and assist in his own defense" (People v Lopez, 251 AD2d 514 [1998]), defendant has not established that he was denied his right to be present at trial.

We reject defendant's argument that he was denied his right to the effective assistance of counsel, under both the state and federal standards, by counsel's failure to object to the testimony with respect to the complainant's prior consistent statements and the alleged errors by the prosecution during summation. First, defendant made no motion, pursuant to CPL 440, seeking evidentiary development of matters that are not normally revealed in a trial record but which usually are essential to an evaluation of the quality of a trial counsel's representation, for example, regarding matters of strategy, counsel's knowledge of matters not litigated at trial, and the nature of counsel's interactions with the defendant (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998, 1000 [1982]; People v Polanco, 13 AD3d 100, 101 [2004]). "To the extent that the existing record permits review" (People v Lopez, 2 AD3d 234 [2003]), under the "flexible" approach required by the New York State Constitution (People v Benevento, 91 NY2d 708, 712 [1998]), and considered as a whole (People v Henry,
95 NY2d 563 [2000]), counsel's representation was "meaningful" (People v Baldi, 54 NY2d 137, 147 [1981]; see also People v Caban, 5 NY3d 143, 156 [2005] [a determination that a defendant [*4]was not denied meaningful representation under the New York State Constitution "necessarily" resolves the federal claim as the state rule provides a higher standard for the effectiveness of representation]). Defendant does not dispute that his trial counsel was informed as to the facts and law relevant to the charges being prosecuted, that she made the necessary pretrial motions for discovery, vigorously sought to subpoena additional matters (one of which requests was ultimately granted) to determine whether documentary support existed to establish that the accusation was the product of a psycho-emotional disturbance rather than an actual event, and prepared and presented a plausible defense. Trial counsel interposed numerous objections at various junctures, organized defendant's case, and presented a coherent summation employing a logical defense.

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: March 30, 2010