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People v. Resto

Supreme Court of New York, Fourth Department

February 3, 2017





         Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), rendered February 21, 2014. The judgment convicted defendant, upon a jury verdict, of murder in the first degree, conspiracy in the first degree, criminal solicitation in the first degree, tampering with a witness in the fourth degree (three counts), bribing a witness, intimidating a witness in the second degree, tampering with a witness in the second degree and conspiracy in the fifth degree.

         It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

         Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of, inter alia, murder in the first degree (Penal Law § 125.27 [1] [a] [vi]; [b]) and three counts of tampering with a witness in the fourth degree (§ 215.10). Defendant contends that she was denied her due process right to an interpreter at arraignment. We conclude, however, that defendant, who was represented by counsel at her arraignment, failed to preserve her contention for our review because she never objected to the absence of an interpreter at that proceeding (see CPL 470.05 [2]; People v Robles, 86 N.Y.2d 763, 764-765; People v Garcia-Cruz, 138 A.D.3d 1414, 1414, lv denied 28 N.Y.3d 929). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Contrary to defendant's further contention, any errors related to the manner and extent of the translations made by the court interpreter during jury selection and pretrial discussions were corrected by County Court (see People v Singleton, 59 A.D.3d 1131, 1131, lv denied 12 N.Y.3d 859, reconsideration denied 13 N.Y.3d 800; People v Restivo, 226 A.D.2d 1106, 1107, lv denied 88 N.Y.2d 883). Defendant's contention that she was unable to understand the court interpreter during the remainder of the trial is unpreserved for our review and, in any event, not supported by the record (see People v Zhang Wan, 203 A.D.2d 499, 499, lv denied 83 N.Y.2d 973).

         We reject defendant's contention that the court abused its discretion in denying her request for an adjournment to allow defense counsel to engage in a further review of Rosario material in preparation for trial. "Although... the court's discretion with respect to a request for an adjournment is more narrowly construed when a fundamental right is impacted..., it is well settled that [t]he court's exercise of discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice' " (People v Peterkin, 81 A.D.3d 1358, 1360, lv denied 17 N.Y.3d 799; see People v Spears, 64 N.Y.2d 698, 699-700). Here, the court denied defendant's request for an adjournment upon determining that the People had provided defense counsel with unredacted copies of the Rosario material a week before trial and that defense counsel would be afforded additional time to prepare until the following day after the early completion of jury selection. Defendant has made no showing that she was prejudiced by the court's ruling (see Peterkin, 81 A.D.3d at 1360; People v Sargent, 195 A.D.2d 987, 988, lv denied 82 N.Y.2d 808).

         We reject defendant's further contention that the court's pretrial Molineux ruling constitutes an abuse of discretion. The evidence regarding defendant's drug dealing enterprise was relevant to material issues other than her criminal propensity, inasmuch as it was inextricably intertwined with the victim's murder, tended to establish defendant's motive for procuring the commission of the killing, and provided necessary background information with respect to defendant's relationship with the People's witnesses (see People v Stevens, 87 A.D.3d 754, 756, lv denied 18 N.Y.3d 861; People v Marrero, 272 A.D.2d 77, 77, lv denied 95 N.Y.2d 855; People v Zimmerman, 212 A.D.2d 821, 821-822, lv denied 85 N.Y.2d 945, reconsideration denied 86 N.Y.2d 743; People v Powell, 157 A.D.2d 524, 524, lv denied 75 N.Y.2d 923). The probative value of that evidence outweighed its potential for prejudice (see Powell, 157 A.D.2d at 525; see generally People v Alvino, 71 N.Y.2d 233, 241-242). Any inconsistencies in the testimony regarding the size of defendant's drug dealing enterprise and the precise nature of the victim's alleged infringement upon that enterprise go to the weight of the evidence, not its admissibility (see generally People v Kims, 24 N.Y.3d 422, 439; People v Zarif, 290 A.D.2d 401, 402, lv denied 98 N.Y.2d 683).

         Contrary to defendant's contention, she was not denied a fair trial by the testimony of a former defense attorney, on direct examination by the prosecutor, that he had previously represented defendant in a felony criminal matter in which she was charged with criminal possession of a controlled substance in the third degree. "The court struck that testimony in response to defendant's objection and gave curative instructions that were sufficient to alleviate any prejudice" (People v Brooks, 139 A.D.3d 1391, 1392; see People v Santiago, 52 N.Y.2d 865, 866). Defendant's remaining contention with respect to the admission of evidence of alleged uncharged crimes or prior bad acts is not preserved for our review (see CPL 470.05 [2]; see generally People v Gray, 86 N.Y.2d 10, 20-21), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

         Defendant failed to preserve for our review all but one of her present objections to alleged instances of prosecutorial misconduct on summation (see CPL 470.05 [2]) and, in any event, we conclude that "[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial" (People v Cox, 21 A.D.3d 1361, 1364, lv denied 6 N.Y.3d 753');">6 N.Y.3d 753 [internal quotation marks omitted]).

         To the extent that defendant preserved for our review her contention that the conviction of murder in the first degree is not supported by legally sufficient evidence (see Gray, 86 N.Y.2d at 19), we conclude that it lacks merit. Viewing the evidence in the light most favorable to the People (see People v Danielson, 9 N.Y.3d 342, 349), we conclude that, contrary to defendant's contention, the evidence is legally sufficient to establish beyond a reasonable doubt that the gunmen, with whom defendant was acting in concert, caused the victim's death (see Penal Law §§ 20.00, 125.27 [1] [a] [vi]). Defendant preserved the remainder of her challenge to the legal sufficiency of the evidence only with respect to the tampering with a witness counts, which arose in connection with a separate trial (see Gray, 86 N.Y.2d at 19). Contrary to defendant's contention, viewing the evidence in the light most favorable to the People, we conclude that the evidence is legally sufficient to support the conviction with respect to those counts (see generally People v Horton, 24 N.Y.3d 985, 987; People v Bleakley, 69 N.Y.2d 490, 495).

         Although defendant failed to preserve for our review any further challenge to the legal sufficiency of the evidence, " we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence' " (People v Stepney, 93 A.D.3d 1297, 1298, lv denied 19 N.Y.3d 968; see Danielson, 9 N.Y.3d at 349-350). We nonetheless conclude that, viewing the evidence in light of the elements of each crime as charged to the jury (see Danielson, 9 N.Y.3d at 349), although an acquittal would not have been unreasonable, the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495). It is well settled that "[r]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury" (People v Witherspoon, 66 A.D.3d 1456, 1457, lv denied 13 N.Y.3d 942');">13 N.Y.3d 942 [internal quotation marks omitted]), and we perceive no reason to disturb the jury's resolution of those issues in this case. Contrary to defendant's contention, the testimony of the People's witnesses was not incredible as a matter of law, i.e., it was not " impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory' " (People v Garafolo, 44 A.D.2d 86, 88). The testimony of the People's witness was not rendered incredible as a matter of law by the minor inconsistencies in their testimony (see People v Williams, 118 A.D.3d 1295, 1296, lv denied 24 N.Y.3d 1090), or by the fact that many of them had criminal histories and received favorable treatment in exchange for their testimony (see People v Carr, 99 A.D.3d 1173, 1174, lv denied 20 N.Y.3d 1010; People v Manley, 60 A.D.3d 870, 870, lv denied 12 N.Y.3d 927).

         To the extent that defendant's contention that she was denied effective assistance of counsel is based on matters outside the record on appeal, including her assertion that defense counsel failed to investigate and call certain witnesses, it must be raised by way of a motion pursuant to CPL article 440 (see People v Bradford, 126 A.D.3d 1374, 1375, lv denied 26 N.Y.3d 926; People v Kaminski, 109 A.D.3d 1186, 1186, lv denied 22 N.Y.3d 1088). To the extent that the record permits review of the claims that defendant raises on appeal, we conclude that they are without merit (see generally People v Caban, 5 N.Y.3d 143, 152; People v Baldi, 54 N.Y.2d 137, 147; People v Galens, 111 A.D.3d 1322, 1322-1323, lv denied 22 N.Y.3d 1088).

         Defendant failed to preserve for our review her contention that, in sentencing her, the court "penalized [her] for exercising [her] right to a jury trial" (People v Campbell, 118 A.D.3d 1464, 1466, lv denied 24 N.Y.3d 959, reconsideration denied24 N.Y.3d 1218). In any event, "[t]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting [her] right to trial" (i ...

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