People v. Boone

• Decision Date: 17 May 2011
• Citation: 84 A.D.3d 1108,925 N.Y.S.2d 512,2011 N.Y. Slip Op. 04264
• Parties: The PEOPLE, etc., respondent,v.Thomas BOONE, appellant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1108
925 N.Y.S.2d 512
2011 N.Y. Slip Op. 04264

The PEOPLE, etc., respondent,
v.
Thomas BOONE, appellant.

Supreme Court, Appellate Division, Second Department, New York.

May 17, 2011.

[925 N.Y.S.2d 513]

Hammock & Sullivan, LLC, Flushing, N.Y. (Edward R. Hammock of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Rebecca Kramer of counsel), for respondent.MARK C. DILLON, J.P., RUTH C. BALKIN, RANDALL T. ENG, and SHERI S. ROMAN, JJ.

[84 A.D.3d 1108] Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosengarten, J.), rendered July 26, 2004, [84 A.D.3d 1109] 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, 83 S.Ct. 1194, 10 L.Ed.2d 215) 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 A.D.3d 303, 777 N.Y.S.2d 673). 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

[925 N.Y.S.2d 514]

the law of the case doctrine,’ the defendant is precluded from having [these] issue[s] reconsidered” ( People v. Riley, 22 A.D.3d 609, 610, 802 N.Y.S.2d 251 [some internal quotation marks omitted], quoting People v. Martinez, 194 A.D.2d 741, 741–742, 600 N.Y.S.2d 250; People v. Barnes, 155...