PEOPLE v. DELEON (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dena E. Douglas, J.), rendered September 15, 2022, convicting him of murder in the second degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

On June 4, 1995, Fausto Cordero (hereinafter the victim) was shot and killed near his parked car on Franklin Avenue in Brooklyn.  Blanca Cordero, the victim's wife (hereinafter Cordero), and Denice Rahmings allegedly witnessed the shooting and saw the perpetrator.  Both Cordero and Rahmings identified the defendant as the perpetrator.  On June 29, 1995, the defendant was arrested by Detectives Anthony Baker, Louis Scarcella, and Stephen Chmil and charged with, inter alia, murder in the second degree in connection with the victim's death.  At the police station, the defendant allegedly provided an oral statement to the police in which he admitted that he shot the victim.  The sum and substance of the alleged oral statement was memorialized in Baker's DD5 form.

Following a trial in 1996, the defendant was convicted of murder in the second degree, and this Court affirmed the judgment of conviction (see People v. Deleon, 262 A.D.2d 421).

In 2018, the defendant moved pursuant to CPL 440.10 to vacate his judgment of conviction and for a new trial based on the newly discovered evidence that Scarcella and Chmil had subsequently been found to have engaged in corrupt police practices and misconduct in other cases (see People v. DeLeon, 190 AD3d 764).  In an order dated November 19, 2019, the Supreme Court granted the defendant's motion to vacate the judgment of conviction and directed a new trial.  The People appealed, and this Court affirmed (see id.).

Following the second trial, the defendant was convicted of, inter alia, murder in the second degree.  The defendant appeals, contending that the verdict of guilt was against the weight of the evidence and that he was denied the effective assistance of counsel.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410;  People v. Bleakley, 69 N.Y.2d 490, 495).  Here, both Cordero and Rahmings identified the defendant as the perpetrator, and both witnesses denied that the police told them whom to identify.  Contrary to the defendant's contention, Cordero's and Rahmings's identifications of the defendant were not incredible or unreliable.  Contrary to the defendant's further contention, the evidence adduced at the second trial concerning the involvement of Scarcella and Chmil did not sufficiently undermine Baker's credibility as to the defendant's statement, in sum and substance, that he shot the victim.  Thus, upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matters appearing on the record and, in part, on matters outside the record (see People v. Rose, 193 AD3d 885, 887;  People v. Renaud, 137 AD3d 818, 820–821) and, thus, constitutes a mixed claim of ineffective assistance (see People v. Padilla–Padilla, 233 AD3d 711, 711;  People v. Maxwell, 89 AD3d 1108, 1109).  Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Padilla–Padilla, 233 AD3d at 711;  People v. Rodriguez, 224 AD3d 783, 785).

CONNOLLY, J.P., FORD, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.