On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
R.s. Cohen, Arnold M. Stein and Kestin. The opinion of the court was delivered by Arnold M. Stein, J.A.D.
The opinion of the court was delivered by
We consolidate these appeals for Disposition.
Michael Kounelis and Eftatios Kounelis, twins, were both found guilty of first degree armed robbery, N.J.S.A. 2C:15-1; second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; and third degree criminal restraint, N.J.S.A. 2C:13-2a. The trial Judge sentenced Michael to concurrent terms aggregating twenty years with a ten-year parole ineligibility period, and Eftatios to two concurrent terms aggregating fifteen years with a five-year parole ineligibility period.
We affirm Michael's conviction. We reverse Eftatios's conviction because the Judge did not secure the assistance of a Greek interpreter for him at trial.
To preserve narrative continuity, we list the contentions raised by both defendants at the end of this opinion. Except for the interpreter question, all of the contentions raised by both Michael and Eftatios are clearly without merit. R. 2:11-3(e)(2). We limit our Discussion to the reasons for reversing Eftatios's conviction and those which require our Disposition before retrial.
On February 10, 1989, at approximately 2:30 a.m., two men entered the front door of the closed Millbrook Diner in Matawan. One man was carrying a crowbar, the other a handgun. They tied the hands of the cleaning men, Cruz and Cisneros, and ordered them to bend down and make no movement. When the robbers forced open the rear door, a third man entered. The robbers searched several cabinets. Cruz and Cisneros were ordered into the basement, where they were told to remain for fifteen minutes. About fifteen minutes after the robbers left, the men went to a neighbor who called the police.
Karaminas, a co-owner of the diner, told Matawan police that the robbers had taken over $6,000 including collector's coins. Cruz, who spoke little English, was interviewed with the assistance of a detective from the Holmdel Police Department who was fluent in Spanish.
That evening, Detective Alston of the Matawan police showed a photograph lineup to Cruz and Cisneros. Cruz picked out photograph No. 5, a picture of Michael Kounelis. Cisneros could not identify anyone.
Michael and Eftatios were arrested on the morning of February 14 in a room at the Secaucus Motor Lodge. The police found $111.50 in coins, later identified as coins taken from the Millbrook Diner.
Later that day Cruz was shown a second photographic lineup. He identified photograph No. 6, a picture of Eftatios. Michael's photograph was included in the array. Cruz had difficulty distinguishing between the two men.
Several months later two live lineups were held at the Monmouth County Courthouse. Cruz identified Eftatios from the first lineup and Michael from the second. The lineup and photo identifications were introduced into evidence at trial.
Eftatios Kounelis does not speak English. He arrived in this country from Greece one month before his arrest. His presentence report notes that "[h]e does not speak or read and write English." The attorney who appeared on his behalf at his arraignment (actually Michael's attorney) advised the court:
My client speaks Greek only. I've explained the status of the proceeding to him today that it's a matter of record and that it's done normally in a sense informally and that the procedure is already laid out.
No defense was offered at trial. Just before summations, the following took place out of the presence of the jury:
Okay, the other thing that we have to clear up is the question of the Defendants not testifying. Let me start --
He speaks Greek? He speaks English, right?
Where is the interpreter?
Can you come up here, please, ma'am?
(The interpreter approaches.)
THE COURT: All right, swear her in. And I want her to stand with this Defendant, Eftatios.
MARY STAMOULIS, an interpreter, sworn.
THE COURT: Mrs. Stamoulis, can you stand over there next to him?
Before you start interpreting --
Mr. Eugene, did you go over this question with him?
MR. EUGENE: [Eftatios's attorney] Yes, I did.
THE COURT: Do you speak Greek?
THE COURT: So he has discussed it ...