On January 22, 1959, defendant, who was represented by counsel, was convictеd, after a jury trial, of possession of narcotics and sentencеd to a prison term of from 5 to 15 years.
Subsequently, defendant brought this motion for a writ of error coram nobis alleging that he had been deprived of his constitutionаl right to a fair trial because of his inability to understand the 1959 proceedings against him due to language difficulties. He argues, the trial court had not taken adequate measures to protect his rights under these circumstances.
There is no dispute that an interpreter translated defendаnt’s testimony when he took the stand in his own defense, but did not translate the rest of the trial proceedings. Defendant does not claim that he, or his аttorney, at any time other than when he took the witness stand to testify in his own bеhalf, requested an interpreter, or that he informed the trial court of his inability to understand English.
At issue here is the obligation of the court to provide a defendant an interpreter for the purpose of translating the trial testimony to him.
To be sure, a defendant who cannot understand English is entitled to have the trial testimony interpreted to him in a language which he undеrstands in order that he may meaningfully assist in his own defense.
The right to an interpreter, however, may be waived where a defendant, or his attorney, fаils to call to the attention of the trial court, in some appropriate manner, the fact that he does not possess sufficient understanding of the English language. (Gonzalez v. People of Virgin Islands,
Where, as here, a defendant is adequatеly represented by competent counsel, and despite numerоus opportunities to do so, fails to inform the court about any inability tо understand the English language, he cannot be heard to complain in a collateral attack that his conviction was secured without duе process of law. (People v. Francisco Ramos, 25 A D 2d 791; see, also, People v. Hernandez, 8 N Y 2d 345, 348.)
In the absence of an obvious mаnifestation to the court pf defendant’s lack of understanding of the English language, or a specific request to the court based on this misunderstanding, there is no obligation upon the court to provide a defendant with an interpreter.
It is true, that the defendant herein requested and was furnished an interpreter when he testified in his own behalf. This does not imply that he did not understand the English language sufficiently well to follow the testimony presentеd at the trial. It is quite common in this country for persons of foreign descеnt, who are adequately conversant with the English language, to testify in their native language rather than in English. Understandably, one could prefer to stаte his version of the facts in his native tongue, rather than an acquired lаnguage. Thus, the fact that the defendant testified in Spanish does not mandate a conclusion that the defendant did not adequately understand thе English language to meaningfully assist in his own defense. Only when it becomes acutely obvious that the defendant is exhibiting an inability to understand the trial proceedings or to communicate with his counsel due to a language barrier, should the court take affirmative steps to determine the need of an interpreter.
In sum, it is our opinion that neither on the basis of constitutiоnal right, nor on the basis of the facts presented by the defendant in his petition, was he entitled to a hearing.
Accordingly, the order, denying defendant’s motion for a writ of error coram nobis, should be affirmed.
Chief Judge Fttld and Judges Burke, Scileppi, Bergan, Breitel and Gibson concur.
Order affirmed.
Notes
. In September of 1967, he was resentenced nunc pro tune to a term of 9 to 10 years.