| People v Delancey |
| 2012 NY Slip Op 02892 [94 AD3d 1015] |
| April 17, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v RogerDelancey, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Cooperman, J.), rendered June 11, 2009, convicting him of murder in the second degree,attempted murder in the second degree, assault in the first degree (two counts), and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the testimony regarding two prior disputes he hadwith one of the victims, one of which occurred several weeks prior to the subject incident, andthe other of which occurred only hours before the subject incident, was relevant to his motive andprovided background information on the nature of the relationship between the defendant and thevictims, and the probative value of the evidence outweighed any prejudice to the defendant (see People v Dorm, 12 NY3d 16,19 [2009]; People v Cook, 93 NY2d 840 [1999]; People v Alvino, 71 NY2d 233,242 [1987]; People v Gamble, 72AD3d 544, 546 [2010], affd 18 NY3d 386 [2012]; People v Marji, 43 AD3d 961[2007]; People v Williams, 27AD3d 673 [2006]). Moreover, the Supreme Court's cautionary instructions limited anypotential prejudice to the defendant (seePeople v Torres, 78 AD3d 866 [2010]; People v Marji, 43 AD3d 961 [2007]; People v Ortiz, 273AD2d 482 [2000]).
The contentions raised in the defendant's pro se supplemental brief that the evidence waslegally insufficient to support the jury's verdict on the counts of murder in the second degree andattempted murder in the second degree are unpreserved for appellate review (see CPL470.05 [2]; People v Hawkins, 11NY3d 484, 491-492 [2008]; People v Gray, 86 NY2d 10 [1995]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt onthose counts beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004],cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).[*2]
The defendant's claim that he was deprived of theconstitutional right to the effective assistance of counsel is based, in part, on matter appearing onthe record and, in part, on matter outside the record, and thus constitutes a " 'mixed claim' " ofineffective assistance (People vMaxwell, 89 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d 571, 575 n 2 [2011], cert denied565 US —, 132 S Ct 325 [2011]). In this case, it is not evident from the matterappearing on the record that the defendant was deprived of the effective assistance of counsel(cf. People v Crump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852[1978]). Since the defendant's claim of ineffective assistance cannot be resolved withoutreference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum forreviewing the claim in its entirety (seePeople v Freeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109;People v Rohlehr, 87 AD3d603, 604 [2011]).
The remaining contentions raised in the defendant's pro se supplemental brief areunpreserved for appellate review, and, in any event, are without merit. Skelos, J.P., Leventhal,Belen and Roman, JJ., concur.