PEOPLE v. PEREZ

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

The PEOPLE of the State of New York, Respondent, v. Jose PEREZ, Defendant–Appellant.

Decided: May 31, 2012

MAZZARELLI, J.P., CATTERSON, DeGRASSE, RICHTER, MANZANET–DANIELS, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Molly Booth of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Caleb Kruckenberg of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael Sonberg, J.), rendered June 14, 2010, as amended June 29, 2010, convicting defendant, after a jury trial, of auto stripping in the second degree and possession of burglar's tools in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 2 to 4 years, unanimously affirmed.

Defense counsel affirmatively waived the absence of an interpreter during part of the voir dire proceedings (see People v. Keen, 94 N.Y.2d 533, 538, 707 N.Y.S.2d 380, 728 N.E.2d 979 [2000] ).   As an alternate holding, we find defendant's argument that he was constructively absent due to the lack of an interpreter to be without merit.   Although defendant was generally assisted by an interpreter during pretrial proceedings and trial, the record does not indicate that he lacked a sufficient understanding of the English language to be able to understand the questioning of venirepersons, or that a language barrier prevented him from being able to communicate with his counsel (see People v. Santos, 46 A.D.3d 365, 366, 848 N.Y.S.2d 57 [2007], lv. denied 10 N.Y.3d 844, 859 N.Y.S.2d 403, 889 N.E.2d 90 [2008] ).