The woman's lawyer, Michael Brennan, submitted to the court that his client was outside smoking a cigarette at the time of the liposuction procedure, and only came into the room when she heard her husband shouting for help.

"No one ever saw her in the operating room with the deceased," Brennan said, arguing that prosecutors did not provide sufficient evidence to a grand jury to warrant a manslaughter indictment.

"She was wearing medical gloves because she was participating," Hettinger said. "I would suggest there is a reasonable inference that can be drawn."

Hettinger also said that witnesses told authorities they saw Ana Ribeiro assisting her ex-husband during a different surgical procedure in the same basement the day before DePaula died.

The court did not yet rule on the motion to dismiss the charges.