PEOPLE v. ROSARIO

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jose ROSARIO, also known as Modesto Paulino, also known as Manuel Rodriguez, Defendant-Appellant.

Decided: June 30, 2005

ANDRIAS, J.P., MARLOW, SULLIVAN, ELLERIN, NARDELLI, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

Appeal from judgment, Supreme Court, New York County (Budd G. Goodman, J.), rendered August 15, 2002, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the second degree, and sentencing him to a term of 4 years to life, held in abeyance, motion by assigned counsel to be relieved denied without prejudice to renewal, and counsel directed to communicate to defendant, in Spanish, the same information already provided in counsel's letter to defendant concerning the instant application for relief under People v. Saunders, 52 A.D.2d 833, 384 N.Y.S.2d 161 [1976].

Although counsel's letter to defendant properly explained the substance and expected consequences of counsel's Saunders brief and advised him of his right to file a pro se supplemental brief, it was inadequate because it was written in English while the record reflects that defendant was aided by a Spanish interpreter at the plea and sentencing proceedings, and there is nothing to indicate that defendant understood counsel's letter or that anything was done to communicate its substance to him in Spanish (see United States v. Leyba, 379 F.3d 53 [2d Cir.2004] ).   Moreover, defendant addressed a letter to the trial court that asserted, among other things, an inability to communicate with appellate counsel, and made no reference to counsel's letter.