People v. Barnes

• Decision Date: 06 November 1989
• Citation: 155 A.D.2d 468,547 N.Y.S.2d 131
• Parties: The PEOPLE, etc., Respondent, v. Paul BARNES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 131

547 N.Y.S.2d 131

155 A.D.2d 468

The PEOPLE, etc., Respondent, v. Paul BARNES, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 6, 1989.

Elaine D. McKnight, Brooklyn, for appellant.

Paul Barnes, pro se.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Jessica Hecht and Nicoletta J. Caferri, of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, KUNZEMAN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered July 23, 1984, convicting him of murder in the second degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

This appeal is taken from a judgment of conviction resulting from the retrial of the defendant ordered by this court (see, People v. Barnes, 93 A.D.2d 864, 461 N.Y.S.2d 372). We found reversible error in the trial court's permitting redirect examination of a People's witness regarding a lineup identification which had been suppressed (see, People v. Barnes, 101 Misc.2d 76, 420 N.Y.S.2d 629 [where, however, it was held that there was an independent source of the in-court identification], and we had also implicitly rejected the defendant's contention that the in-court identification violated his due process rights.

On this appeal the defendant again contends that the trial court erred in permitting an in-court identification. The People respond that our prior decision in People v. Barnes, supra constitutes "the law of the case" and, in view of the defendant's failure to demonstrate "manifest error" in our prior decision, he is precluded from having this issue reconsidered. We agree. In People v. Taylor, 87 A.D.2d 771, 450 N.Y.S.2d 370, aff'd, 57 N.Y.2d 729, 454 N.Y.S.2d 976, 440 N.E.2d 1323, the Appellate Division, First Department, applied this doctrine where there had been a prior decision and order of that court (see, People v. Taylor, 68 A.D.2d 864, 414 N.Y.S.2d 700), which had, in effect, determined an issue sought to be revived by the defendant in that case. Justice Lupiano stated, in a concurring memorandum in which Justice Sandler concurred in part:

"In order to avoid the application of the law of the case doctrine it is necessary to demonstrate cogent reasons particularizing how our prior determination, which implicitly approved the admissibility of defendant's confession, was manifest error. No such cogent reasoning demonstrating that we heretofore committed manifest error, or that exceptional circumstances exist warranting departure from the law of the case doctrine, is set forth. To ignore the law of the case rather than to honor its strictures would in effect, characterize the action of the Bench of this court on the prior appeal as inept or negligent in directing a new trial without resolving the appellate issues already clearly presented to such Bench and which directly affect the propriety of the evidence to be submitted at the new trial" (see, People v. Taylor, 87 A.D.2d 771, supra, at 773, 450 N.Y.S.2d 370).

There has been no showing at bar that our prior decision proceeded on the basis of "manifest error, or that exceptional circumstances exist warranting departure from the law of the case doctrine" (see, People v. Taylor, 87 A.D.2d 771, supra, at 773, 450 N.Y.S.2d 370). In any event, we find, in the exercise of our factual review power, that no error was committed by the trial court.

"It is well settled that the suppression of an impermissibly...