ALBANY – A judge did not err by refusing a defense request to remove a court interpreter in a Manhattan burglary trial because the interpreter was acquainted with the complainants, a divided state Court of Appeals has ruled.

In another determination yesterday, the judges clarified a question they left open in a 2003 decision by holding that the failure to file proof of facts constituting a default judgment claim is not a jurisdictional defect that renders the judgment a nullity.

The interpreter case, People v. Lee, 111, split the court 4-2.

The majority found that it did not create the possibility of bias that the interpreter who translated for the Cantonese-speaking complainant, Joan Feng Lan Lee, knew both her and her husband, Yin Poy Louie, the other complainant.

Judge Eugene Pigott Jr. (See Profile), writing for the majority, said the trial judge, Manhattan Supreme Court Justice Edward McLaughlin, tried to allay the defense’s concerns by permitting the defense counsel to voir dire the interpreter.

The interpreter, Wayne Moy, described himself as a "friend" of Louie, whose Manhattan apartment was burglarized. The interpreter said his father had been introduced to construction loan officials through Louie and that the interpreter had met Louie’s wife when she had accompanied her husband on business meetings.

The interpreter denied that he had any business dealings with Louie or saw him socially, according to yesterday’s ruling. He also said he knew nothing about the case, where defendant Thomas Lee and a codefendant were accused of burglary and grand larceny for breaking into the apartment occupied by Louie and his wife.

Pigott noted that the interpreter in the prosecution took an oath, like all state court interpreters, to translate testimony verbatim and did not need to be reminded of his duty by McLaughlin.

"On the facts of this case, the court could have reasonably found that the danger the interpreter would distort complainant wife’s testimony was remote, particularly because he possessed no knowledge concerning the facts of the case," Pigott wrote.

Judges Susan Phillips Read (See Profile), Robert Smith (See Profile) and Victoria Graffeo (See Profile) joined the majority, which affirmed a ruling by the Appellate Division, First Department, in People v. Lee, 89 AD3d 633 (2011).

The panel also upheld Lee’s conviction for second-degree burglary and third-degree grand larceny and a 10-year prison sentence.

In dissent, Judge Jenny Rivera (See Profile) said the interpreter’s presence in the case led to a "substantial claim of an appearance of bias, if not actual bias."

McLaughlin’s denial of a defense motion to appoint an alternative interpreter, and his refusal to provide a mechanism to confirm the accuracy of interpretations, amounted to "an abuse of discretion" by the judge, Rivera wrote.

She said the interpreter’s presence was a violation of Canon 6 of the Unified Court System’s Court Interpreter Manual and Code of Ethics, which prohibits interpreters from any involvement in a case that "creates an appearance of conflict."

Rivera said McLaughlin’s failure to create a mechanism to confirm the accuracy of the interpreter’s work eliminated the possibility of appellate review of the testimony.

McLaughlin’s assurances to the defense that if there were any problems with the translations provided by the interpreter they would be reflected by objections within the court from the relatives of the defendants "cannot seriously be considered a realistic and sound method to confirm the accuracy of the witness’ testimony as interpreted," Rivera wrote.

The judge said the question of the accuracy of interpretations presents "tremendous challenges" for the courts, which she said must guarantee access to justice for an increasingly diverse population.

Chief Judge Jonathan Lippman (See Profile) joined in the dissent.

Assistant Manhattan District Attorney John Martin argued for the prosecution.

Arminda Bepko of Cleary Gottlieb Stein & Hamilton, who represented Thomas Lee pro bono at the behest of the Office of Appellate Defenders, said she was "disappointed by the decision, but glad to see that the dissent adopted our view."

Default Judgment

The default judgment case, Manhattan Telecommunications v. H&A Locksmith, 118, concerned a default judgment on the plaintiff’s claim that it had provided $150,000 worth of telephone service to the defendant and its related companies for which Manhattan Telecommunications Corporation was not paid.

A First Department panel ruled that because Manhattan Telecommunications had failed to provide evidence that the principal of H&A Locksmith and related companies, Ariq Vanunu, was personally liable for the stated claims, the default judgment was a nullity.

Smith, writing for the 6-0 panel, said this issue was specifically left open by the court in its 2003 ruling in Woodson v. Mendon Leasing, 100 NY2d 62. But he said the court was now deciding that the defect that troubled the First Department is not jurisdictional—meaning it is not so fundamental as to render the default judgment a nullity.

Rather, he said it can be corrected by an application for relief from the judgment pursuant to CPLR 5015.

"A failure to submit the proof required by CPLR 3215(f) should lead a court to deny an application for a default judgment, but a court that does not comply with this rule has merely committed an error—it has not usurped a power it does not have," Smith wrote.

He noted that the circumstances of the Manhattan Telecommunications case had split Appellate Division panels for years. He cited decisions from the First, Third and Fourth departments that found the defect jurisdictional and a case from the First Department and two from the Second Department where the defect was held to be non-jurisdictional.

Lippman, Graffeo, Read, Pigott and Rivera concurred in the Smith ruling.

Jonathan Bachrach represented Manhattan Telecommunications.

Mark Heinze of Ofeck & Heinze argued for Vanunu.

Judge Sheila Abdus-Salaam (See Profile) took no part in yesterday’s decisions.