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 STATE OF CONNECTICUT v. PIERRE L. JOSEPH
               (AC 35312)
                Gruendel, Beach and Norcott, Js.
         Argued April 7—officially released June 17, 2014

   (Appeal from Superior Court, judicial district of
              Fairfield, Kavanewsky, J.)
  Annacarina Jacob, senior assistant public defender,
for the appellant (defendant).
  Katherine E. Donoghue, special deputy assistant
state’s attorney, with whom, on the brief, were John
C. Smriga, state’s attorney, and Joseph J. Harry, senior
assistant state’s attorney, for the appellee (state).
                          Opinion

   NORCOTT, J. The defendant, Pierre L. Joseph,
appeals from the judgment of conviction, rendered after
a jury trial, of sexual assault in the second degree in
violation of General Statutes § 53a-71 (a) (3).1 The sole
issue in this appeal is the defendant’s claim that his
rights under the fifth, sixth, and fourteenth amendments
to the United States constitution to be present at trial,
to confront his accusers, to counsel, and to a fair trial
were violated because he did not receive the assistance
of a Creole interpreter during critical stages of his trial.
We disagree and, accordingly, we affirm the judgment
of the trial court.
  The specific factual allegations of the crimes for
which the defendant was charged are not relevant to
this appeal.
   In this case, we must resolve the defendant’s claim
that certain of his constitutional rights were violated
because he did not receive the assistance of a Creole
interpreter during critical stages of the prosecution.
Specifically, the defendant argues that once the court
had notice that he was not a native speaker of English,
it ‘‘had an obligation sua sponte to determine if the
defendant understood the . . . proceedings that had
occurred up until that point without the assistance of
a Creole interpreter.’’
   The defendant did not raise this claim before the trial
court. He nonetheless argues that his unpreserved claim
is reviewable under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989). ‘‘In Golding, our Supreme
Court held that a defendant can prevail on a claim of
constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation clearly exists and clearly deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Internal
quotation marks omitted.) State v. Daniel G., 147 Conn.
App. 523, 539, 84 A.3d 9, cert. denied, 311 Conn. 931,
87 A.3d 579 (2014).
   The state does not dispute that the defendant’s claim
is of constitutional magnitude; it does, however, argue
that the record is inadequate to review the defendant’s
claim. ‘‘[U]nless the defendant has satisfied the first
Golding prong, that is, unless the defendant has demon-
strated that the record is adequate for appellate review,
the appellate tribunal will not consider the merits of
the defendant’s claim.’’ State v. Brunetti, 279 Conn. 39,
54, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127
S. Ct. 1328, 167 L. Ed. 2d 85 (2007). ‘‘[I]n the absence
of a sufficient record, there is no way to know whether
a violation of constitutional magnitude in fact has
occurred. . . . Thus, as [our Supreme Court] stated in
Golding, we will not address an unpreserved constitu-
tional claim ‘[i]f the facts revealed by the record are
insufficient, unclear or ambiguous as to whether a con-
stitutional violation has occurred . . . .’ ’’ (Footnote
omitted.) Id., 55–56.
   The state contends that ‘‘[t]he record is insufficient
because it is devoid of any legitimate assertion or facts
from which a reasonable inference can be drawn that
the defendant did not understand the proceedings
against him. At best, the record is unclear and ambigu-
ous as to whether the defendant needed an interpreter
in order to . . . understand the proceedings.’’ We dis-
agree. Rather, we conclude that the state’s argument
is ‘‘hoist [by its] own petard.’’ W. Shakespeare, Hamlet,
act 3, sc. 4. The state first contends that the record is
inadequate for us to reach the merits of the defendant’s
claim but it then proceeds to argue that ‘‘[t]he trial
transcript, taken as a whole, shows that the defendant
had a sufficient command of the English language and
was able to understand the witnesses’ testimony and
communicate with defense counsel.’’ The flaw in this
argument is that it conflates a question of reviewability
with one of reversibility. We conclude that the volumi-
nous trial transcript provides a sufficient record for
our review.
   Having determined that the record is adequate for
review, we conclude that the first two prongs of Golding
are satisfied and, therefore, we will proceed to review
the defendant’s claim. State v. Daniel G., supra, 147
Conn. App. 540; see also State v. Lavigne, 307 Conn.
592, 599, 57 A.3d 332 (2012) (‘‘[t]he first two [prongs
of Golding ] involve a determination of whether the
claim is reviewable; the second two . . . involve a
determination of whether the defendant may prevail’’
[internal quotation marks omitted]). After reviewing the
merits of the defendant’s claim, we conclude that he
cannot satisfy the third Golding prong.2
   The resolution of this case is controlled by our
Supreme Court’s decision in State v. Munoz, 233 Conn.
106, 659 A.2d 683 (1995). In Munoz, that court held that,
‘‘under appropriate circumstances, a defendant’s right
to confrontation, his right to counsel and his right to
be present at trial may be violated if he is not provided
with a separate interpreter, who performs the functions
of translating for him, into his language, the testimony
of English speaking witnesses and interpreting between
him and his English speaking counsel during the testi-
mony of all witnesses, both English and nonEnglish
speaking. . . . A critical factual underpinning of these
constitutional requirements, however . . . is that the
defendant has so limited an understanding or ability
to speak English that his ability to comprehend the
proceedings and to communicate with his counsel is
significantly impaired. Thus, the basic constitutional
inquiry is whether any inadequacy in the interpretation
made the trial fundamentally unfair . . . . [T]he failure
to provide continuous, word-for-word translation will
require a new trial only upon such a showing of funda-
mental unfairness.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) Id., 133–34.
Applying Munoz in State v. Jeudis, 62 Conn. App. 787,
790, 772 A.2d 715, cert. denied, 256 Conn. 923, 774 A.2d
140 (2001), this court held that ‘‘[t]he constitutional
standard [for determining whether a trial is fundamen-
tally fair] is whether the defendant can understand the
witnesses, communicate and otherwise comprehend
the proceedings.’’
   In light of these precedents, we conclude that the
defendant has failed to demonstrate that the constitu-
tional violation alleged in this case clearly exists and
clearly deprived him of a fair trial. The entirety of the
trial transcript reveals that the defendant had a conver-
sational command of the English language, was able to
understand the testimony of the witnesses, and could
communicate with his counsel. In the defendant’s eight
previous court appearances, he neither asked for an
interpreter nor indicated that he had difficulty under-
standing the proceedings. Furthermore, during his
arraignment, the defendant had communicated orally
with the court only in English.3
   The defendant, through his counsel, did not request
an interpreter until the defendant already had taken
the stand on direct examination. After requesting an
interpreter for the defendant’s direct and cross-exami-
nations, his counsel stated (outside the presence of the
jury) that he was requesting an interpreter because of
the importance of the defendant’s trial testimony before
the jury.4 The defendant’s counsel further explained that
the defendant spoke English, that he had communicated
with the defendant in English throughout the represen-
tation, and that the defendant understood their conver-
sations.5 On direct examination, the defendant testified
that he and his attorney had discussions in English and
that he understood those discussions.6 Perhaps most
significant to us is the fact that the defendant was
never—not once—denied the assistance of an inter-
preter. Indeed, once requested, the interpreter was
allowed and was excused only at the conclusion of the
defendant’s testimony after his counsel indicated that
the defendant no longer required the interpreter’s
services.7
  All of this satisfies us that despite English not being
the defendant’s native tongue, he was able to ‘‘under-
stand the witnesses, communicate and otherwise com-
prehend the proceedings’’; State v. Jeudis, supra, 62
Conn. App. 790; such that his trial was not fundamen-
tally unfair. State v. Munoz, supra, 233 Conn. 134. The
fact that at one critical juncture in his trial his counsel
requested that the defendant be provided with an inter-
preter-—which he was—does nothing to vitiate this
conclusion.8 We therefore conclude that the defendant’s
claim must fail because he has not demonstrated that
the constitutional violation alleged in this case clearly
exists and clearly deprived him of a fair trial.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     In addition to the charge of sexual assault in the second degree, the
defendant was charged with criminal trespass in the third degree in violation
of General Statutes § 53a-109 (a) (1). The jury found him not guilty of
that charge.
   2
     Because we conclude that the defendant’s claim fails to satisfy the third
prong of Golding, we need not address harmless error. See State v. Fabrica-
tore, 281 Conn. 469, 482 n.17, 915 A.2d 872 (2007).
   3
     The following exchange occurred during the defendant’s arraignment:
   ‘‘The Court: You’re charged on count one with sexual assault in the second
degree and count two, criminal trespass in the third degree. To these charges,
how do you plead?
   ‘‘The Defendant: Not guilty.
   ‘‘The Clerk: Do you like to be tried by Court or by jury?
   ‘‘[Defense Counsel]: Jury trial, please.
   ‘‘The Court: Mr. Pierre, is that correct, jury election?
   ‘‘The Defendant: Yes.’’
   4
      Defense counsel and the court had the following exchange:
   ‘‘[Defense Counsel]: I have always spoken to my client in English. He
does understand English from my first day I met him through all the pretrials
through preparing for this case during the trial of this case up to this point
I’ve always spoken to him in English. My concern was just as we were
discussing his testimony and especially since there’s [going to] be cross-
examination, I did not want to get anything lost in the translation so to speak.
   ‘‘The Court: So you’re not making any claim that he had any difficulty
to date?
   ‘‘[Defense Counsel]: Absolutely not. Absolutely not.
   ‘‘The Court: In all your dealings with him?
   ‘‘[Defense Counsel]: Correct, correct. I just felt that the importance of
today, the importance of the direct and cross-examination in this case so
that nothing is lost in—in this interpretation, I felt it would be beneficial
both to my client’s sake and the jury’s sake and for the Court’s sake.’’
   5
     The defendant argues that ‘‘the fact that [the defendant] could speak
and understand some English when communicating with his attorney in no
way means he had full comprehension of the criminal proceedings against
him.’’ This argument misunderstands the defendant’s burden on appeal,
which in this case is to show that ‘‘the defendant [could not] understand
the witnesses, communicate and otherwise comprehend the proceedings.’’
State v. Jeudis, supra, 62 Conn. App. 790. The defendant has failed to
persuade us of this, given his admission that he understands English, and
his failure to request an interpreter other than for his testimony during trial.
See footnote 6 of this opinion.
   6
     The defendant and his attorney had the following exchange:
   ‘‘[Defense Counsel]: English is not your first language, correct?
   ‘‘[The Defendant]: No.
   ‘‘[Defense Counsel]: Although you and I have had discussions in
English, right?
   ‘‘[The Defendant]: Yes.
   ‘‘[Defense Counsel]: And we’ve understood each other?
   ‘‘[The Defendant]: Yes.
   ‘‘[Defense Counsel]: But because you’re testifying we have the interpreter
here, okay?
   ‘‘[The Defendant]: Yes.’’
   7
     The defendant argues that this fact is irrelevant because the court should
have canvassed the defendant personally. Specifically, he argues that: ‘‘It is
not enough for counsel to represent to the court that he was able to communi-
cate with the defendant in English. . . . A court should inquire whether
an interpreter is needed when a defendant demonstrates an inability to
understand the proceedings or to communicate with counsel.’’ (Citation
omitted; internal quotation marks omitted.) As authority for this proposition,
the defendant relies on Justice Berdon’s concurring opinion in Munoz. Jus-
tice Berdon concluded that: ‘‘Because of the important constitutional rights
that are implicated, a trial judge has an obligation to canvass the defendant
in order to determine whether he needs an interpreter. . . . An appellate
court should not be faced with a silent record and be required to guess at
the defendant’s degree of proficiency with the English language.’’ (Citation
omitted; internal quotation marks omitted.) State v. Munoz, supra, 233 Conn.
145 n.4 (Berdon, J., concurring). We first note that this statement by Justice
Berdon is contained in a concurrence and did not receive support from a
majority of our Supreme Court, and therefore, it is not a part of the court’s
holding in Munoz. More significantly, however, we note that the rationale
animating Justice Berdon’s concern, namely, that an appellate court needs
an adequate record in order to determine whether a defendant was deprived
of protected constitutional liberties. Far from being ‘‘silent,’’ we conclude
that the record before us is sufficient to review properly whether the defen-
dant needed an interpreter.
   Similarly, relying on case law from other jurisdictions, the defendant
contends that ‘‘the trial court has an obligation sue sponte to determine if
the defendant understood the trial court proceedings that had occurred up
until that point without the assistance of a Creole interpreter once it was
put on notice that the defendant’s first language was not English.’’ Notably,
the defendant does not cite any Connecticut case law in support of this
proposition. ‘‘Even if we were to agree with the merits of the defendant’s
claim, which we do not, we are an intermediate appellate court whose
function is to apply the law—not make new law.’’ State v. Gode, 145 Conn.
App. 1, 11 n.7, 74 A.3d 497, cert. denied, 310 Conn. 933, 79 A.3d 888 (2013).
We decline the defendant’s invitation to extend our law beyond what our
Supreme Court’s precedents allow.
   8
     On cross-examination the defendant stated that he did not understand
the testimony of the police officers who testified against him, which is why
he requested an interpreter. Later, however, he did acknowledge that he
understood them and knew the meaning of the words ‘‘stop’’ and ‘‘halt.’’
Whatever passing inability to understand the defendant was referring to
here, we are not convinced that it rendered his trial fundamentally unfair.
State v. Munoz, supra, 233 Conn. 134.
