FIFTH DIVISION

										January 19, 2001

No. 1-99-3760

THE PEOPLE OF THE STATE OF ILLINOIS,	) Appeal from the

									) Circuit Court of

			Plaintiff-Appellant,	) Cook County.

									)

			v.						)

									)

KYUNG KIM,							) Honorable

									) Marcia Orr,

			Defendant-Appellee.		) Judge Presiding.

	JUSTICE GREIMAN delivered the opinion of the court:

	The defendant, Kyung Kim, a Korean national, was charged by

indictment with armed robbery, aggravated kidnapping and

attempted armed robbery.  On defendant's motion, the trial court

dismissed the indictment because of the prejudice that inured to

defendant by reason of the failure of police to advise defendant

during custodial detention of his right to communicate with

consular officials of South Korea under the Vienna Convention on

Consular Relations, April 24, 1963, art. 36, 21 U.S.T. 77 (Vienna

Convention).  The State has appealed from the dismissals.  As

defendant has not filed a brief, we consider the case only on the

State's brief. First Capital Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131-33 (1976).   For reasons that follow, we reverse.

	Defendant came to the United States from South Korea in 1995

and testified at the hearing on the motion to dismiss the indictment that he speaks, reads and writes a "little" English but does not understand it.  He further testified that while in

custody he was interrogated by police in the Addison, Illinois,

police station as well as the Niles police station without a

translator being present.  Further, he testified that he was

directed to sign a form while in custody at both police stations

and that defendant was unaware that he had a right to speak with

the South Korean Consul General.  He further testified that, had

he been aware of such a right, he would have made appropriate

contact with a consular official, who would have provided him

with an interpreter and possibly counsel, and had these matters

been explained to him he would not have made the inculpatory

statements to which police officers testified.

	Police officers and an assistant State's Attorney testified

that they had given defendant his Miranda warnings in English and that they believed he understood the admonitions of these

warnings.

	These law enforcement officers and the assistant State's

Attorney acknowledged that they did not provide the defendant

with an understanding of his rights under article 36 of the

Vienna Convention.

	In support of defendant's motion, he cited to United States v. Rangel-Gonzales, 617 F.2d 529 (9th Cir. 1980) and United States v. Lombera-Comorlinga, 170 F.3d 1241 (9th  Cir. 1999), for the proposition that where an alien has not been advised of his right to consult with a consular official and can establish that

he was prejudiced by the violation, the appropriate remedy is to

dismiss the indictment.  The State maintained that, regardless of

any appropriate remedy, defendant failed to establish actual

prejudice.

	Based upon the evidence presented, the trial court found

that defendant did not ask to consult with the Korean consulate

because he was unaware of this opportunityright; that the purpose of such a

consultation is to aid the defendant in dealing with his exposure

by providing an interpreter, contacting his family and providing

counsel; and that the defendant never contacted the Korean

consulate in the eight months that the matter had been pending

although he was aware of his right to do so.  The trial court

concluded that "prejudice" had been shown in the failure of the

authorities to advise defendant of his rights under the Vienna

Convention and that the appropriate remedy was dismissal of the

indictment.

	Initially, we note that the United States v. Lombera- Comorlinga, 188 F.3d 1177 (9th Cir. 1999) decision relied upon defendant below was withdrawn by the Ninth Circuit.  Thereafter,

in an en banc decision, the court held that even assuming a private right of action, there is nothing in the language or

operation of the Vienna Convention provision to suggest that it

was intended to create an exclusionary remedy with protections

similar to those announced by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).  We agree that to hold otherwise would out

"mirandize" Miranda.  Even if a defendant could show prejudice, as expressed in the deportation case of Rangel-Gonzales, the violation of the Vienna Convention does not warrant suppression

of evidence or dismissal of the indictment as a remedy.  United State v. Li, 206 F.3d 56 (1st Cir. 2000); People v. Villagomez, 313 Ill. App. 3d 799 (2000).  In Li, the court observed that the State Department believed that the only remedies for failure of

consulate notification under the Vienna Convention are

diplomatic, political or those that exist between states under

international law and that the Vienna Convention does not create

individual rights.  Li, 206 F.3d at 63.

	In Villagomez, while the trial court determined that

		defendant had been appropriately advised of his fifth amendment

 rights, any violation of the obligations created by reason of

the Vienna Convention did not create individual rights for a

defendant.  In Villagomez the court observed:

		"We also note that the Convention does not ex-

	pressly or impliedly provide for the suppression

	of statements or other evidence as a remedy where

	a police officer or other arresting authority fails

	to notify a foreign national of the right to contact

	the consulate.  See Tapia-Mendoza, 41 F. Supp. 2d at

	1255.  Because of this, several courts have held

	that even if a defendant could show prejudice result-

	ing from law enforcement authorities' failure to conform

	to the Convention, suppression of a statement or other	

	evidence is not available as a remedy.  United States

	v. Li, 206 F.3d 56 (1st Cir. 2000); United States v.

	Torres-DelMuro, 58 F. Supp. 2d 931 (C.D. Ill. 1999);

	United States v.Carrillo, 70 F. Supp. 2d 854 (N.D. Ill. 1999); United States v. Rodrigues, 68 F. Supp. 2d 178 (E.D.N.Y. 1999).*** As shown in the discussion above,

	every court that has addressed this issue has held that

	any rights created by the Convention cannot be equated

	with constitutional rights, fundamental rights, or with

rights under Miranda.  It would therefore be illogical

		to extend the remedy of the exclusionary rule to

	violations of the Convention." Villagomez, 313 Ill. App.

	 3d at 812.

  	In People v. Madej, 193 Ill. 2d 395 (2000), our supreme

court considered a defendant's petition for writ of mandamus and for relief under section 2-1401 of the Code of Civil Procedure

(735 ILCS 5/2-1401 (West 1998)).  The defendant based his

petitions on the State's admitted violation of the Vienna

Convention.  The majority denied the defendant's petitions as

they were not timely filed.  Three justices dissented from this

holding.  However, even the dissenters said that the proper

relief was to reverse for a new sentencing hearing (Justice McMorrow) or a new trial (Justices Heiple and Harrison).  None of

the Justices asserted that the case against the defendant should

be dismissed and the State barred from retrying the defendant.

	In its ruling, the trial court said it considered the fact

that defendant testified that he needed an interpreter as another

reason to require notification of the Korean consulate.  In

Villagomez, it was clear that the defendant had been notified of his Miranda rights in Spanish and that he acknowledged that he understood these rights and was willing to answer questions thus

waiving those rights.  In the instant case, defendant's testimony

suggests that he may not have understood the important

constitutional rights that he was waiving in giving a statement

to police and acknowledging in writing that he understood the

meaning and implications of his Miranda warnings.

	An examination of the record indicates that defendant's

understanding of English, his prior involvement in the criminal

justice system, which would give him some knowledge of thise

system, and his interchange with the police officers and

assistant State's Attorney are factors that undercut his claim. 

See People v. Teran-Cruz, 272 Ill. App. 3d 573 (1995).  However, that is for the trial judge at a suppression hearing.

	Accordingly, the judgment of the circuit court of Cook

County is reversed and the matter remanded.

	Reversed and remanded.

	QUINN, P.J., and THEIS, J., concur.