The People, etc., respondent, v. Thomas Boone, appellant. (2011)

Submitted—May 3, 2011

DECISION & ORDER

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 second degree, gang assault in the first degree, assault in the first degree, burglary in the first degree, and criminal possession of a weapon in the fourth degree (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

At the trial of the defendant and Anthony Thomas, a codefendant, the complainant had been offered protection for himself and his family as a result of an alleged attempt of witness tampering.   The defense learned of the protection during the trial.   After the defendant was convicted, the Supreme Court found a Brady violation (see Brady v. Maryland, 373 U.S. 83) 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 new trial under CPL 330.30 (see People v. Thomas, 8 AD3d 303).   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 Brady violation, and two summation comments referring to the complainant as a rape victim who could never 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 law of the case doctrine,’ the defendant is precluded from having [these] issue [s] reconsidered” (People v. Riley, 22 AD3d 609, 610 [some internal quotation marks omitted], quoting People v. Martinez, 194 A.D.2d 741, 741–742;  People v. Barnes, 155 A.D.2d 468, 469).   Under the circumstances here, there is no basis to reconsider those issues.

The defendant's new arguments regarding alleged prosecutorial misconduct during summation and those relating to the introduction of an in-court identification are unpreserved for appellate review (see CPL 470.05[2];  People v. Dien, 77 N.Y.2d 885;  People v. Nuccie, 57 N.Y.2d 818), and, in any event, are without merit both as to the alleged errors during summation (see People v. Galloway, 54 N.Y.2d 396, 399;  People v. Russo, 201 A.D.2d 512, affd 85 N.Y.2d 872) and the introduction of the in-court identification (see People v. Lizardi, 166 A.D.2d 672, 673;  People v. Wilcox, 106 A.D.2d 526;  People v. Royster, 104 A.D.2d 1011).

DILLON, J.P., BALKIN, ENG and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court