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State v. Linares

Decided: October 7, 1983.


Stern, J.s.c.


The Office of the Public Defender seeks reimbursement from the County of Essex for expenses in connection with payment of interpreters who translate court proceedings for non-English speaking defendants during criminal cases. The issue arises in the context of a concluded matter, but the Public Defender in essence seeks a declaration that the county must pay for such expenses in the future. County counsel originally posed a procedural concern because the issue arises in the context of a collateral motion in a criminal case. There are various issues concerning procedure, including the absence of a civil suit and discovery incident thereto. However, during argument it became clear that there is no prejudice to the county from the nature of these proceedings and that the parties have been given adequate time to obtain discovery and to canvass the relevant practices throughout the State. As a result, the county poses no procedural objection, and I will not dispose of the issue on that ground. However, I will consider only the questions before me in the context of the particular criminal case in which the issue arises.

There can be no doubt that a defendant in a criminal case has the right to the assistance of an interpreter so that he can understand the nature of the ongoing proceedings. The constitutional right of a defendant to such assistance has already been established. State v. Vasquez, 101 Utah 444, 121 P. 2d 903 (Sup.Ct.1942); Chavira Gonzales v. United States, 314 F.2d 750 (9 Cir.1963); Tapia-Corona v. United States, 369 F.2d 366 (9 Cir.1966); United States ex rel. Negron v. State of New York,

310 F. Supp. 1304 (E.D.N.Y.1970), aff'd 434 F.2d 386 (2 Cir.1970). After Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965) extended the Sixth Amendment right of confrontation of adverse witnesses to the states through the Fourteenth Amendment, the states construed that right to include an interpreter for the defendant so that he can meaningfully understand the proceedings and consult with counsel concerning examination and cross-examination.

Recently, the Supreme Court of Oklahoma addressed the full extent of the right to an interpreter in Application of Murga, 631 P. 2d 735 (Okl.Sup.Ct.1981):

When a defendant cannot speak or understand English, however, several of these rights cannot be preserved without the assistance of an interpreter. Among these rights are the right to counsel, the right to confront adverse witnesses, the right to cross-examine those witnesses, and the right to be present at one's own trial. Without an interpreter any prosecution of those defendants would be constitutionally infirm. [at 736]

The question before me is not whether an indigent defendant has the right to the assistance of an interpreter but whether that assistance should be provided at the expense of the state or county government. New Jersey has a statutory provision permitting the appointment of court interpreters in certain counties, and providing for the compensation of such interpreters. N.J.S.A. 2A:11-28; -28.1; -29. In 1967 the New Jersey Legislature adopted the Public Defender Act, N.J.S.A. 2A:158A-1 et seq., in response to decisions of the United States Supreme Court and New Jersey Supreme Court implementing the constitutional guarantee to an indigent defendant in a criminal case of the right to counsel and the related costs of criminal proceedings at public expense.

The Public Defender Act provides, in part, that "[a]ll necessary services and facilities of representation (including investigation and other preparation) shall be provided in every case." N.J.S.A. 2A:158A-5. The county, in opposition to this motion, claims that the services of an interpreter should be included in those services which are needed and required to a proper defense and which should therefore be provided for and paid by the

Office of the Public Defender. Cf. State v. Stockling, 153 N.J. Super. 362 (Law Div.1977), rev'd on other grounds 160 N.J. Super. 486 (App.Div.1978); State v. Morgenstein, 141 N.J. Super. 518 (Law Div.1976), rev'd 147 N.J. Super. 234 (App.Div.1977); See also State v. Rush, 46 N.J. 399 (1966).

It appears that the Public Defender Act of 1967 does not specifically address this issue, and that N.J.S.A. 2A:11-28 and 29 appear to be discretionary at least with respect to counties other than first class counties with a population of more than 800,000.*fn*

On its face N.J.S.A. 2A:11-28 does not appear to apply exclusively to interpreters for witnesses. It provides that ". . . whenever the transaction of the public business of the Superior Court, the County Court and the juvenile and domestic relations courts . . . will be expedited or improved" by appointment of interpreters, the interpreters may be appointed. By virtue of the 1978 constitutional amendment, the duty to appoint falls upon the assignment judge. In first class ...

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