| People v Khan |
| 2015 NY Slip Op 02807 [127 AD3d 1250] |
| April 2, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMahadaye Khan, Also Known as Mala Khan, Appellant. |
Cheryl Coleman, Albany, for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Devine, J. Appeal from a judgment of the Supreme Court (McDonough, J.), renderedOctober 4, 2013 in Albany County, upon a verdict convicting defendant of the crimes ofgrand larceny in the third degree, offering a false instrument for filing in the first degree,criminal tax fraud in the fourth degree and criminal tax fraud in the fifth degree.
Defendant and her daughter, Shareen Khan, were charged in a December 2010indictment with offenses stemming from a scheme to unlawfully retain funds paid by theAlbany County Department of Social Services for the provision of housing to individualsreceiving public assistance. Defendant was separately charged in a September 2011indictment with various offenses, including ones stemming from her efforts to avoidpaying income taxes and to force Suresh Gunness, who is not an American citizen, toremain in the United States and perform work for her.[FN1] With the consent of defendant, CountyCourt (Herrick, J.) consolidated the two indictments for trial. Khan was then charged, ina February 2012 indictment, with crimes related to her unlawful receipt of publicassistance benefits. County Court granted, without objection from defendant, the People's[*2]motion to consolidate that indictment with theDecember 2010 and September 2011 indictments.
The case was transferred to Supreme Court (McDonough, J.) prior to trial. Followingthat jury trial, Khan was acquitted. Defendant, however, was found guilty of grandlarceny in the third degree, offering a false instrument for filing in the first degree,criminal tax fraud in the fourth degree and criminal tax fraud in the fifthdegree.[FN2]Supreme Court imposed an aggregate sentence of six months in jail and five years ofprobation, and further directed her to pay fines and restitution. Defendant nowappeals.
We affirm. Defendant contends that the indictments were improperly consolidatedfor trial, but she failed to oppose either motion for consolidation. Accordingly, herchallenges to the orders granting consolidation are unpreserved for our review, and weperceive no reason to exercise our discretion to reverse or modify in the interest of justice(see People v Ridgeway, 59AD3d 1111, 1112 [2009], lv denied 12 NY3d 820 [2009]; People vRoberts, 188 AD2d 735, 737 [1992], lv denied 81 NY2d 891 [1993]).Defendant thereafter retained new counsel who, four days before trial, orally applied forseverance on the ground that the jury would be tempted to infer her guilt from an"irreconcilable conflict" between her defense and that of Khan (People vMahboubian, 74 NY2d 174, 184 [1989]). Supreme Court did not abuse its discretionin denying that application, which was both conclusory and untimely (see CPL255.10 [1] [g]; 255.20; People vLewis, 83 AD3d 1206, 1208 [2011], lv denied 17 NY3d 797 [2011];People v Melendez, 285 AD2d 819, 822 [2001], lvs denied 97 NY2d 708,731 [2002]).
Defendant next asserts that she was deprived of a fair trial due to violations of theMolineux rule. Defendant was charged with two counts of labor traffickingalleging that she improperly compelled Gunness to work for her, both by threatening todisclose to immigration officials that his marriage with an American citizen was a shamand by withholding travel documentation from him (see Penal Law§ 135.35 [3], [4]). With regard to those offenses, two women testified thatdefendant offered to pay them if they married Gunness for immigration purposes, andone of the women ultimately did marry him. Supreme Court properly found that thisevidence was admissible to complete the narrative of both witnesses and, moreover, thecourt gave an appropriate limiting instruction to the jury (see People v Rivera, 124 AD3d1070, 1073 [2015]; Peoplev Pham, 118 AD3d 1159, 1161 [2014], lv denied 24 NY3d 1087[2014]). Supreme Court also acted properly in allowing the testimony of Gunness thatdefendant threatened to have him killed if he did not return from a short trip outside theUnited States, a threat that illustrated how defendant carried out the crime of labortrafficking and explained why Gunness did not flee once his travel documents were in hispossession (see e.g. People v Greene, 306 AD2d 639, 642 [2003], lvdenied 100 NY2d 594 [2003]). Further, Supreme Court addressed the above issuesoutside of the presence of the jury, and we cannot say that preclusion was warranted as amatter of law due to the explained failure of the People to seek pretrial review of them(see People v Small, 12NY3d 732, 733 [2009]; People v Royster, 107 AD3d 1298, 1301 [2013], lvdenied 22 NY3d 958 [2013]).
Defendant further argues that the People improperly vouched for the credibility ofGunness during summation, but the record reflects that the prosecutor "merely providedfair comment on [Gunness's] credibility in response to the defense summation[s]"(People v Lazzaro, [*3]62 AD3d 1035, 1036[2009]). We are also unpersuaded that Supreme Court should have instructed the jurythat Gunness and his wife were "accomplice[s] and subject to the statutory corroborationrequirement" as a matter of law (People v Sage, 23 NY3d 16, 23 [2014]; see CPL60.22 [2]). The trial evidence left open the possibility that Gunness was under duresswhen he allegedly aided defendant in her criminal conduct, as well as that his marriagehad been entered into for legitimate reasons, and Supreme Court properly instructed thejury to determine whether the two were accomplices (see People v Sage, 23NY3d at 24; People v Vataj, 69 NY2d 985, 987 [1987]; People vBeaudet, 32 NY2d 371, 375 [1973]). Defendant's remaining contentions have beenexamined and found to be lacking in merit.
Lahtinen, J.P., Garry and Rose, JJ., concur. Ordered that the judgment is affirmed,and matter remitted to the Supreme Court for further proceedings pursuant to CPL460.50 (5).
Footnote 1:Gunness was alsocharged with petit larceny (two counts) in the December 2010 indictment as a result ofhis role in the rental property scheme, but those charges were later dismissed.
Footnote 2:Supreme Courtremanded defendant to the custody of the Albany County Sheriff after the jury verdict,prompting her to obtain an order from this Court releasing her on $50,000 bail inanticipation of her taking an appeal.