        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

54
KA 14-00810
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

IRIS RESTO, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     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 NY2d 763, 764-765;
People v Garcia-Cruz, 138 AD3d 1414, 1414, lv denied 28 NY3d 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 AD3d 1131, 1131, lv denied 12
NY3d 859, reconsideration denied 13 NY3d 800; People v Restivo, 226
AD2d 1106, 1107, lv denied 88 NY2d 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
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                                                         KA 14-00810

event, not supported by the record (see People v Zhang Wan, 203 AD2d
499, 499, lv denied 83 NY2d 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 AD3d 1358, 1360, lv denied 17 NY3d 799; see
People v Spears, 64 NY2d 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 AD3d
at 1360; People v Sargent, 195 AD2d 987, 988, lv denied 82 NY2d 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
AD3d 754, 756, lv denied 18 NY3d 861; People v Marrero, 272 AD2d 77,
77, lv denied 95 NY2d 855; People v Zimmerman, 212 AD2d 821, 821-822,
lv denied 85 NY2d 945, reconsideration denied 86 NY2d 743; People v
Powell, 157 AD2d 524, 524, lv denied 75 NY2d 923). The probative
value of that evidence outweighed its potential for prejudice (see
Powell, 157 AD2d at 525; see generally People v Alvino, 71 NY2d 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
NY3d 422, 439; People v Zarif, 290 AD2d 401, 402, lv denied 98 NY2d
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 AD3d 1391, 1392; see People v
Santiago, 52 NY2d 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];
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                                                         KA 14-00810

see generally People v Gray, 86 NY2d 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 AD3d 1361, 1364, lv
denied 6 NY3d 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 NY2d at 19), we
conclude that it lacks merit. Viewing the evidence in the light most
favorable to the People (see People v Danielson, 9 NY3d 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 NY2d 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 NY3d 985, 987; People v
Bleakley, 69 NY2d 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 AD3d 1297, 1298, lv
denied 19 NY3d 968; see Danielson, 9 NY3d 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 NY3d at 349), although
an acquittal would not have been unreasonable, the verdict is not
against the weight of the evidence (see generally Bleakley, 69 NY2d 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 AD3d 1456, 1457, lv denied 13 NY3d 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 AD2d 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 AD3d 1295, 1296, lv denied
24 NY3d 1090), or by the fact that many of them had criminal histories
                                 -4-                            54
                                                         KA 14-00810

and received favorable treatment in exchange for their testimony (see
People v Carr, 99 AD3d 1173, 1174, lv denied 20 NY3d 1010; People v
Manley, 60 AD3d 870, 870, lv denied 12 NY3d 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 AD3d
1374, 1375, lv denied 26 NY3d 926; People v Kaminski, 109 AD3d 1186,
1186, lv denied 22 NY3d 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 NY3d 143, 152;
People v Baldi, 54 NY2d 137, 147; People v Galens, 111 AD3d 1322,
1322-1323, lv denied 22 NY3d 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 AD3d 1464, 1466, lv
denied 24 NY3d 959, reconsideration denied 24 NY3d 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” (id.
[internal quotation marks omitted]). Finally, we conclude that the
sentence is not unduly harsh or severe.




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
