| People v Boone |
| 2011 NY Slip Op 04264 [84 AD3d 1108] |
| May 17, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Thomas Boone, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Rebecca Kramer of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Rosengarten, J.), rendered July 26, 2004, convicting him of attempted murder in the seconddegree, gang assault in the first degree, assault in the first degree, burglary in the first degree, andcriminal possession of a weapon in the fourth degree (three counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
At the trial of the defendant and Anthony Thomas, a codefendant, the complainant had beenoffered protection for himself and his family as a result of an alleged attempt of witnesstampering. The defense learned of the protection during the trial. After the defendant wasconvicted, the Supreme Court found a Brady violation (see Brady v Maryland,373 US 83 [1963]) and ordered a new trial. On the People's appeal, this Court reversed,determining that the Brady claim, and other claims related to the prosecutor's summation,were unpreserved for appellate review, and the comments on summation did not warrant a newtrial under CPL 330.30 (see People vThomas, 8 AD3d 303 [2004]). The matter was therefore remitted to the Supreme Court,Queens County, for sentencing, and this appeal ensued.
This Court's rejection on the prior appeal of the defendant's claims relating to a Bradyviolation, and two summation comments referring to the complainant as a rape victim who couldnever go home again, " 'constitutes the law of the case, and, absent a showing of "manifest error"in the prior decision or that "exceptional circumstances exist warranting departure from the lawof the case doctrine," the defendant is precluded from having [these] issue[s] reconsidered' " (People v Riley, 22 AD3d 609, 610[2005], quoting People v Martinez, 194 AD2d 741, 741-742 [1993]; People vBarnes, 155 AD2d 468, 469 [1989]). Under the circumstances here, there is no basis toreconsider those issues.
The defendant's new arguments regarding alleged prosecutorial misconduct duringsummation and those relating to the introduction of an in-court identification are unpreserved forappellate review (see CPL 470.05 [2]; People v Dien, 77 NY2d 885 [1991];People v Nuccie, 57 NY2d 818 [1982]), and, in any event, are without merit both as tothe alleged errors during summation (see People v Galloway, 54 [*2]NY2d 396, 399 [1981]; People v Russo, 201 AD2d 512[1994], affd 85 NY2d 872 [1995]) and the introduction of the in-court identification(see People v Lizardi, 166 AD2d 672, 673 [1990]; People v Wilcox, 106 AD2d526 [1984]; People v Royster, 104 AD2d 1011 [1984]). Dillon, J.P., Balkin, Eng andRoman, JJ., concur.