On appeal from the Superior Court of New Jersey, Law Division, Camden County.
King, O'Brien and Simpson. The opinion of the court was delivered by King, P.J.A.D.
Defendant contends the State's use of the victim and complaining witness, Lee Kim, as an interpreter at one of the grand jury sessions requires that the guilty verdict be set aside and the indictment dismissed even though he did not move to dismiss the indictment on this ground until after the guilty verdict was returned.
On January 9 and 23, 1985 the Camden County Grand Jury considered several charges brought against defendant based on an incident that occurred on November 3, 1984. At the January 9 grand jury session, Lee Kim (the victim, complaining witness and defendant's sister), testified. Two other witnesses, Detective Joseph Rubino and Ok Kyu Kim, an alleged eyewitness had been subpoenaed, but were not present on that date. The prosecutor said that the detective had called in sick and simply noted that Ok Kyu Kim "isn't here." At the end of the January 9 session the prosecutor said the matter would be continued so the grand jury could hear the testimony of Rubino and Ok Kyu Kim.
On January 23, 1985 the grand jury met again; Rubino and Ok Kyu Kim were present. Lee Kim, the victim and complaining witness, was also present. The prosecutor advised the grand jury that she had asked Lee Kim "to come back again and interpret" for Ok Kyu Kim "because we didn't know where
to find a Korean interpreter." Lee Kim was then sworn to interpret truthfully the questions to and answers of Ok Kyu Kim, following which Ok Kyu Kim testified.
On January 23, 1985, the grand jury returned a three-count indictment against defendant which charged him with aggravated assault -- pointing a firearm contrary to N.J.S.A. 2C:12-1b(4) (count one), possession of a weapon for an unlawful purpose contrary to N.J.S.A. 2C:39-4 (count two), and terroristic threats contrary to N.J.S.A. 2C:12-3 (count three). Defendant pled not guilty to all counts.
On May 9, 1985 a bench trial was conducted before Judge Rossetti. A Korean interpreter was present for use by defendant and other Korean-speaking witnesses. The judge found defendant guilty on all three counts.
On May 30, 1985 defendant filed a motion demanding that the "indictment and conviction be dismissed and vacated." In his accompanying certification, defendant's trial attorney*fn1 stated
2. During the trial on May 9, 1985, I was advised by my adversary, Donna Sears, that the complaining witness was used as an interpreter for the State's witness during the grand jury proceeding.
3. At no time during the grand jury proceeding did anyone question Ms. Kim as to her obvious interest in the outcome of the case on her bias towards the defendant. . . .
Defendant's trial counsel asked Judge Rossetti to grant the motion for a new trial pursuant to R. 3:20-1 notwithstanding his failure to object previously, because of the injustice inherent in having the complaining witness serve as the only eye witness' interpreter before the grand jury.
On June 14, 1985 Judge Rossetti denied this motion and sentenced defendant as follows: count two -- a term of five years with no parole eligibility for three years; count three -- a term of three years to run concurrently with the term under count two, and count one -- 18 months with no parole eligibility for 18 months, to run concurrently with the term under count
two. The judge also imposed a $75 Violent Crimes ...