People v. Rivera

• Decision Date: 27 August 1984
• Citation: 125 Misc.2d 516,480 N.Y.S.2d 426
• Parties: The PEOPLE of the State of New York, v. Ramon RIVERA, Defendant.
• Court: New York Supreme Court

Page 426

480 N.Y.S.2d 426

125 Misc.2d 516

The PEOPLE of the State of New York, v. Ramon RIVERA, Defendant.

Supreme Court, Criminal Term New York County, Part 83.

Aug. 27, 1984.

Robert M. Morgenthau, Dist. Atty., Diane E. Sammons, Asst. Dist. Atty., of counsel, for the People.

Legal Aid Society, Steven W. Silberblatt, New York City, for defendant.

KRISTIN BOOTH GLEN, Justice:

This case presents a question of apparent first impression: whether the prior felony convictions of a deaf or hearing-impaired ¹ defendant, obtained in the absence of a qualified sign-language interpreter, are unconstitutional for the purposes of sentencing as a second felony offender, pursuant to CPL Sec. 400.21(7).

This question must, in turn, be considered in the broader context of what special protection the criminal justice system owes to a hearing-disabled defendant in order to guarantee her/his full participation in criminal proceedings and to insure compliance with the constitutional mandate of due process of law for all.

PROCEDURAL HISTORY

The defendant, Ramon Rivera ("Rivera"), was arrested on August 10, 1983. He was subsequently indicted by a grand jury for two counts of Grand Larceny in the Third Degree. The People filed a predicate felony information alleging two prior convictions: a burglary conviction obtained after trial in Passaic County, New Jersey in 1981 ("the New Jersey conviction") and a burglary and larceny conviction entered pursuant to a guilty plea in Superior Court, Erie County, in 1971 ("the Erie County conviction"). On March 7, 1984, the defendant pleaded guilty to the indictment while moving to contest sentencing as a second felony offender pursuant to CPL Sec. 400.21.

Defendant, who suffers from a severe hearing and speech impairment, contends that both prior convictions were obtained in violation of rights guaranteed him by the Constitution of the United States. A hearing was held pursuant to CPL Sec. 400.21(7), during which testimony was taken from the defendant (through sign-language interpreters Carl Chopinsky ("Chopinsky") and Isabelle Calvacca ("Calvacca") R.S.C.) ² and from a number of other witnesses.

The process of interpretation for Rivera was itself so unusual that it requires special comment. Because Rivera has never developed a working command of American Sign Language ("ASL"), his attorney and original interpreter found communication with him inadequate. The latter recommended the additional assignment of Calvacca, a reverse skills certified interpreter and the conference judge granted counsel's motion for two interpreters. Thereafter, Chopinsky translated the courtroom's spoken language into ASL for Calvacca, who is herself hearing impaired. She, in turn, transformed the ASL into a more universal, expressive language of communication, including facial expressions and bodily gestures. The reverse process was similarly employed. It was apparent that Rivera was able to understand and communicate through these two interpreters as he asked intelligent questions and indicated when he did not understand.

FINDINGS OF FACT

The circumstances of each of Rivera's two prior felony convictions will be discussed separately and seriatim.

A. The New Jersey Conviction

At his trial in Passaic County, Rivera was represented by one Elijah Miller, Jr. ("Miller") of the Passaic County Public Defender's Office who was assisted by Maria Feliciano ("Feliciano"), a Spanish language interpreter employed by the court. No sign-language interpreter was present. The defendant took the stand at his trial and "testimony" was elicited through the Spanish interpreter. A transcript of this testimony was admitted into evidence.

At the hearing Feliciano testified for the People. She admitted she had no knowledge of ASL or any other means of communicating with the hearing impaired, and although she had been certified to interpret in the New Jersey court system, this certification involved a swearing-in ceremony not preceded by any special training. Feliciano testified that she remembered the case and the defendant, and specifically remembered that in a pre-trial conference (of approximately one hour's duration) Miller explained all of Rivera's rights and the procedures to be followed at his trial, while she translated them into Spanish for the defendant. She testified further that Rivera told his story to Miller through her. The defendant, she said, expressed no dissatisfaction.

Feliciano recalled that the defendant seemed to have problems in comprehension, and at times indicated he could not hear her. At those times she stated that she gestured and raised her voice after which she believed the defendant understood her. She testified that the defendant never requested a sign-language interpreter, though she conceded that the defendant's speech was abnormal. Feliciano concluded from the fact that Rivera frequently nodded affirmatively that he had full comprehension of what was being explained to him.

Miller was also called as a witness for the People. He testified that he had met with the defendant on various occasions, and that the defendant often came to his office where they communicated through a Spanish-speaking secretary named Lucy Ortiz. Miller testified that Rivera had some difficulty communicating, but that he appeared to understand the proceeding.

The testimony of defendant and his experts directly contradicted the testimony of the People's witnesses.

Rivera, testifying through Chopinsky and Calvacca, stated that his New Jersey attorney had seemed angry and insulting. He was under the impression that he was on trial for hitting the complaining witness with a hammer, though no such allegation was made. Significantly, he thought Miller had told him that he had no choice but to testify or be sent to jail. Moreover, Rivera was incapable of reciting, even through the two interpreters for the deaf, what kind of legal rights he had been afforded at his New Jersey trial.

Two expert witnesses were also called by the defendant. The first was Marion Granson ("Granson") an audiologist who has been employed for the past eight years at Bellevue Hospital. Granson holds a Masters Degree and state license in audiology and was qualified without objection as an expert witness. She testified that she administered a series of tests in a soundproof environment to determine Rivera's hearing level and suitability for a hearing aid. Her audiology reports and charts were admitted into evidence.

According to Granson, the defendant suffers from a bilateral, severe to profound sensori-neural hearing impairment, which, in her expert opinion, renders him incapable of understanding normal speech. Granson also tested Rivera's involuntary muscular responses to sound and found no responses. She stated that this was consistent with her other test results and further testified that the involuntary response tests cannot be feigned in any way by the patient, because the musculature involved is not subject to conscious control. These tests form the basis for her diagnosis. She concluded that speech loud enough to be understood by the defendant, if any, would cause severe discomfort to others in the room. In fact, her own testing equipment does not produce sound sufficiently loud to test whether there is any level at which Rivera can discriminate speech sounds.

In expressing an opinion as to Rivera's condition at the time of the New Jersey trial, Granson relied on several facts. First, she explained that hearing loss in the inner portion of the cochlia is irreversible and cannot be corrected by surgery. Sensori-neural impairment is a condition which does not improve, but stays the same, or deteriorates. Since she was able to ascertain that Rivera's condition in 1959, when he was a student at P.S. 47 ³ was similar to his condition on the date she examined him, ⁴ she concluded that he was deaf in 1982 and physically unable to understand sentences or even to distinguish words at the time he was tried and convicted in New Jersey.

The defendant also called Dr. Nancy Frishberg ("Dr. Frishberg"), who was qualified without objection as an expert on sign-language interpretation and the psycho-linguistic implications of problems related to the art of interpretation generally. Dr. Frishberg testified that in stress situations, hearing-impaired persons may attempt to diffuse perceived hostility by assuming an acquiescent emotional posture. This often takes the form of nodding affirmatively in response to a question that the person does not understand. This phenomenon, she explained, has been long known and discussed in detail in the relevant literature. Dr. Frishberg also described the phenomenon of "parenting" in which an interpreter assumes a benevolent but improper role of filling in and relating language as the interpreter believes is in the person's best interest. Sign-language interpreters, whose certification requirements are elaborate and require years of training, are aware of this phenomenon and are specifically trained to be wary of it.

When asked about the possibility of Rivera understanding court proceedings through lip-reading, Dr. Frishberg stated that under the best possible circumstances the confidence level of a person with training would be somewhere between 30% and 50%. ⁵ She also stated that there was no necessary relationship between the ability to speak and the ability to lip-read, and that it is more difficult to lip-read when the speaker is not trained to cooperate consciously with the hearing-impaired person. ⁶

Dr. Frishberg was asked to examine portions of the transcript of Rivera's "testimony". She found them consistent with the parenting and acquiescent phenomena she had described. In an attempt to reconcile the apparent discrepancy between Feliciano's and Rivera's accounts of the New Jersey trial, she explained that interpreters who lack experience with the hearing impaired will often "fill in" the gaps in what they...