| People v Esquerdo |
| 2010 NY Slip Op 02219 [71 AD3d 1424] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TommyEsquerdo, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedJanuary 29, 2008. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree (three counts) and robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofrobbery in the first degree (Penal Law § 160.15 [1]) and three counts of murder in thesecond degree (§ 125.25 [1], [3]). We conclude that County Court properly refused tosuppress the oral and written statements that defendant made to police investigators while he wasin custody. It is well settled that " '[t]he suppression court's credibility determinations and choicebetween conflicting inferences to be drawn from the proof are granted deference and will not bedisturbed unless unsupported by the record' " (People v Twillie, 28 AD3d 1236, 1237 [2006], lv denied 7NY3d 795 [2006]). Here, the court's determination that defendant did not invoke his right tocounsel was based solely upon the credibility of the witnesses at the suppression hearing, and weperceive no basis to disturb that determination (see People v Vaughan, 48 AD3d 1069, 1071 [2008], lvdenied 10 NY3d 845 [2008], cert denied 555 US —, 129 S Ct 252 [2008]; see generally People v Gerena, 49AD3d 1204, 1205 [2008], lv denied 10 NY3d 958 [2008]).
We further reject the contention of defendant that he was not adequately apprised of hisrights and did not fully comprehend them based on his limited understanding of the Englishlanguage. It is undisputed that the police gave defendant a Miranda form in Spanish thatexplained his rights, including the right to remain silent and the right to speak to an attorney (see People v Martinez, 68 AD3d1757 [2009]), and defendant conceded at the suppression hearing that he had no troubleunderstanding the information on that form. The record of the suppression hearing thus supportsthe court's determination that the waiver by defendant of his Miranda rights wasknowing, voluntary and intelligent (see People v Torres, 245 AD2d 1124, 1125 [1997],lv denied 91 NY2d 978 [1998]).
To the extent that defendant further contends that the court erred in admitting his written[*2]statement in evidence at trial because the People failed toestablish that the statement was an accurate transcription of defendant's oral statements, thatcontention is without merit. The inability of defendant to read his statement in English does notrender the statement inadmissible inasmuch as a bilingual officer testified at trial that hetranslated the statement into Spanish for defendant, word for word, and that defendant thereaftersigned and initialed the statement (see People v Montero, 273 AD2d 128 [2000], lvdenied 95 NY2d 868 [2000]; People v Ventura, 250 AD2d 403, 404 [1998], lvdenied 92 NY2d 931 [1998]). The accuracy of the officer's translation was an issue of factfor the jury (see People v Fabricio, 307 AD2d 882, 883 [2003], affd 3 NY3d 402[2004]; Montero, 273 AD2d 128 [2000]).
Also without merit is the contention of defendant that his right of confrontation was violatedwhen the court erred in refusing to permit him to utilize the services of his interpreter or hiscodefendant's interpreter during re-cross-examination of the bilingual officer, to challenge theaccuracy of the officer's translation of defendant's written statement. "[T]he ConfrontationClause guarantees an opportunity for effective cross-examination, not cross-examinationthat is effective in whatever way, and to whatever extent, the defense might wish" (Delawarev Fensterer, 474 US 15, 20 [1985]). Here, the record establishes that defendant had theopportunity for effective cross-examination to challenge the accuracy of the officer's translationor any alleged deficiencies in the officer's ability to speak and comprehend Spanish. Indeed, thecourt merely precluded defendant from utilizing a particular method of cross-examining theofficer that could have, inter alia, delayed the trial, confused the jury, and obscured the relevantissues (see People v Dean, 299 AD2d 892 [2002], lv denied 99 NY2d 613[2003]; see also Delaware v Van Arsdall, 475 US 673, 678-679 [1986]; People v Ward, 27 AD3d 1119,1119-1120 [2006], lv denied 7 NY3d 819, 871 [2006]).
Finally, there is no merit to the contention of defendant that he was denied due processbecause the police did not electronically record his interview. "[T]here is no Federal or State dueprocess requirement that interrogations and confessions be electronically recorded" (People vKunz, 31 AD3d 1191 [2006], lv denied 7 NY3d 868 [2006]; see also People v Mendez, 50 AD3d1526 [2008], lv denied 11 NY3d 739 [2008]). Present—Smith, J.P.,Peradotto, Lindley, Green and Gorski, JJ.