In Matter of Er‑Mei Y, 29 A.D.3d 1013 (2d Dept. 2006), an Article 10 child protective proceeding, the Appellate Division observed that an individual has a constitutional right to counsel in any proceeding in which incarceration is a possibility. It held that as a corollary to the right to counsel, non-English speaking individuals have the right to an interpreter to enable them to participate meaningfully in their trial and assist in their own defense. Although the father had been assigned counsel in connection with the ongoing proceeding, the Family Court judge, among other things, denied him any opportunity to confer with his counsel with the assistance of a Mandarin-speaking court interpreter before remanding him prior to the hearing. The judge also failed to advise the father of his rights to retain counsel of his own choosing in defense of the petition and to have an adjournment to confer with counsel. The record supported the father’s assertion that he had no meaningful opportunity to confer with counsel, with the assistance of an interpreter, between the day when he first appeared and was summarily remanded to prison, and two days later, when the hearing was held. The Appellate Division held that this deprivation of the right to counsel was a fundamental error warranting reversal.
To facilitate the right to counsel, the Judiciary Law provides for the appointment and temporary appointment of court interpreters (Judiciary Law §§386, 387) and provides for the appointment of interpreters for deaf persons (Judiciary Law §390). In addition, the Uniform Court Rules provide: “In all civil and criminal cases, when a court determines that a party or witness, or an interested parent or guardian in a Family Court proceeding, is unable to understand or communicate to the extent that he or she cannot meaningfully participate in the proceedings, the court shall appoint an interpreter.” See 22 NYCRR Part 217.
