                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 2, 2015                     105970
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
MAHADAYE KHAN, Also Known as
   MALA KHAN,
                    Appellant.
________________________________


Calendar Date:   February 20, 2015

Before:   Lahtinen, J.P., Garry, Rose and Devine, JJ.

                             __________


     Cheryl Coleman, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Christopher D.
Horn of counsel), for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the Supreme Court (McDonough,
J.), rendered October 4, 2013 in Albany County, upon a verdict
convicting defendant of the crimes of grand 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 2010 indictment with offenses stemming from a scheme to
unlawfully retain funds paid by the Albany County Department of
Social Services for the provision of housing to individuals
receiving public assistance. Defendant was separately charged in
a September 2011 indictment with various offenses, including ones
                               -2-                105970

stemming from her efforts to avoid paying income taxes and to
force Suresh Gunness, who is not an American citizen, to remain
in the United States and perform work for her.1  With the
consent of defendant, County Court (Herrick, J.) consolidated the
two indictments for trial. Khan was then charged, in a February
2012 indictment, with crimes related to her unlawful receipt of
public assistance benefits. County Court granted, without
objection from defendant, the People's motion to consolidate that
indictment with the December 2010 and September 2011 indictments.

      The case was transferred to Supreme Court (McDonough, J.)
prior to trial. Following that jury trial, Khan was acquitted.
Defendant, however, was found guilty of grand 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.2 Supreme Court imposed an aggregate
sentence of six months in jail and five years of probation, and
further directed her to pay fines and restitution. Defendant now
appeals.

      We affirm. Defendant contends that the indictments were
improperly consolidated for trial, but she failed to oppose
either motion for consolidation. Accordingly, her challenges to
the orders granting consolidation are unpreserved for our review,
and we perceive no reason to exercise our discretion to reverse
or modify in the interest of justice (see People v Ridgeway, 59
AD3d 1111, 1112 [2009], lv denied 12 NY3d 820 [2009]; People v
Roberts, 188 AD2d 735, 737 [1992], lv denied 81 NY2d 891 [1993]).
Defendant thereafter retained new counsel who, four days before
trial, orally applied for severance on the ground that the jury
would be tempted to infer her guilt from an "irreconcilable


     1
        Gunness was also charged with petit larceny (two counts)
in the December 2010 indictment as a result of his role in the
rental property scheme, but those charges were later dismissed.
     2
        Supreme Court remanded 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 in
anticipation of her taking an appeal.
                              -3-                105970

conflict" between her defense and that of Khan (People v
Mahboubian, 74 NY2d 174, 184 [1989]). Supreme Court did not
abuse its discretion in denying that application, which was both
conclusory and untimely (see CPL 255.10 [1] [g]; 255.20; People v
Lewis, 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 the Molineux rule. Defendant was
charged with two counts of labor trafficking alleging that she
improperly compelled Gunness to work for her, both by threatening
to disclose to immigration officials that his marriage with an
American citizen was a sham and by withholding travel
documentation from him (see Penal Law § 135.35 [3], [4]). With
regard to those offenses, two women testified that defendant
offered to pay them if they married Gunness for immigration
purposes, and one of the women ultimately did marry him. Supreme
Court properly found that this evidence was admissible to
complete the narrative of both witnesses and, moreover, the court
gave an appropriate limiting instruction to the jury (see People
v Rivera, 124 AD3d 1070, 1073 [2015]; People v Pham, 118 AD3d
1159, 1161 [2014], lv denied 24 NY3d 1087 [2014]). Supreme Court
also acted properly in allowing the testimony of Gunness that
defendant threatened to have him killed if he did not return from
a short trip outside the United States, a threat that illustrated
how defendant carried out the crime of labor trafficking and
explained why Gunness did not flee once his travel documents were
in his possession (see e.g. People v Greene, 306 AD2d 639, 642
[2003], lv denied 100 NY2d 594 [2003]). Further, Supreme Court
addressed the above issues outside of the presence of the jury,
and we cannot say that preclusion was warranted as a matter of
law due to the explained failure of the People to seek pretrial
review of them (see People v Small, 12 NY3d 732, 733 [2009];
People v Royster, 107 AD3d 1298, 1301 [2013], lv denied 22 NY3d
958 [2013]).

      Defendant further argues that the People improperly vouched
for the credibility of Gunness during summation, but the record
reflects that the prosecutor "merely provided fair comment on
[Gunness's] credibility in response to the defense summation[s]"
                              -4-                  105970

(People v Lazzaro, 62 AD3d 1035, 1036 [2009]). We are also
unpersuaded that Supreme Court should have instructed the jury
that Gunness and his wife were "accomplice[s] and subject to the
statutory corroboration requirement" as a matter of law (People v
Sage, 23 NY3d 16, 23 [2014]; see CPL 60.22 [2]). The trial
evidence left open the possibility that Gunness was under duress
when he allegedly aided defendant in her criminal conduct, as
well as that his marriage had been entered into for legitimate
reasons, and Supreme Court properly instructed the jury to
determine whether the two were accomplices (see People v Sage, 23
NY3d at 24; People v Vataj, 69 NY2d 985, 987 [1987]; People v
Beaudet, 32 NY2d 371, 375 [1973]). Defendant's remaining
contentions have been examined 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 CPL
460.50 (5).




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
