Opinion
2019–14650 Ind. No. 8153/1995
01-13-2021
The PEOPLE, etc., appellant, v. Eliseo DELEON, respondent.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for appellant. Cary London Law, New York, N.Y. (Cary London of counsel), for respondent.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for appellant.
Cary London Law, New York, N.Y. (Cary London of counsel), for respondent.
MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the People from an order of the Supreme Court, Kings County (Dena E. Douglas, J.), dated November 19, 2019. The order, after a hearing, granted the defendant's motion pursuant to CPL 440.10 to vacate a judgment of the same court (Abraham G. Gerges, J.) rendered March 13, 1996, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence, and for a new trial.
ORDERED that the order is affirmed.
"As this Court often states, ‘[t]he credibility determinations of a hearing court are entitled to great deference on appeal, and will not be disturbed unless clearly unsupported by the record’ " ( People v. Hargrove, 162 A.D.3d 25, 72, 75 N.Y.S.3d 551, quoting People v. Martinez, 58 A.D.3d 870, 870–871, 873 N.Y.S.2d 128 ). Further, the decision whether to vacate a judgment of conviction based on newly discovered evidence is addressed to the sound discretion of the hearing court (see People v. Salemi, 309 N.Y. 208, 215, 128 N.E.2d 377 ; People v. Thibodeau, 151 A.D.3d 1548, 1552, 56 N.Y.S.3d 669, affd 31 N.Y.3d 1155, 81 N.Y.S.3d 785, 106 N.E.3d 1145 ). "[A] motion for a new trial based on newly discovered evidence should only be granted if the court finds, as a factual matter, that the movant has demonstrated that ‘[1] [n]ew evidence has been discovered since the entry of a judgment ... [2] which could not have been produced by the defendant at the trial even with due diligence on his part and [3] which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant’ " ( People v. Hargrove, 162 A.D.3d at 59–60, 75 N.Y.S.3d 551, quoting CPL 440.10[1][g] ).
Here, the defendant moved for vacatur of his judgment of conviction and for a new trial based on the newly discovered evidence that former New York Police Department detectives Louis Scarcella and Steven Chmil, both of whom played a significant role in the defendant's arrest and the attendant police investigation in this case, had subsequently been found to have engaged in corrupt police practices and misconduct during the same period of time, which had, inter alia, resulted in the vacatur of other convictions in other cases (see e.g. People v. Hargrove, 162 A.D.3d at 58, 75 N.Y.S.3d 551 ; People v. Moses, 58 Misc.3d 1226(A), 94 N.Y.S.3d 540 [Sup. Ct. Kings County] ; Shakur v. State of New York, 54 Misc.3d 674, 677, 47 N.Y.S.3d 214 [Ct. Cl.] ).
Over the course of four separate hearing days where only Scarcella and Chmil testified, the Supreme Court had the benefit of hearing them testify at length about their actions in this case, as well as their actions in other cases. Contrary to the People's contention, the record supports the court's finding that, based on Scarcella's and Chmil's significant involvement in the case, newly discovered evidence of their misconduct would have furnished the jury with a different context in which to view all of the evidence in this case, including the defendant's purported inculpatory statement made to these detectives which the defendant has denied making, and further, that evidence of their misconduct was of such a character to create a probability that, had such evidence been received at trial, the verdict would have been more favorable to the defendant (see People v. Hargrove, 162 A.D.3d at 59–60, 75 N.Y.S.3d 551 ).
The People's remaining contentions are without merit.
DILLON, J.P., HINDS–RADIX, BRATHWAITE NELSON and WOOTEN, JJ., concur.