People v. Breazil

• Decision Date: 16 October 2013
• Citation: 110 A.D.3d 913,973 N.Y.S.2d 299,2013 N.Y. Slip Op. 06702
• Parties: The PEOPLE, etc., respondent, v. Terrance BREAZIL, appellant.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 913
973 N.Y.S.2d 299
2013 N.Y. Slip Op. 06702

The PEOPLE, etc., respondent,
v.
Terrance BREAZIL, appellant.

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

Oct. 16, 2013.

[973 N.Y.S.2d 300]

Lynn W. L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant, and appellant pro se.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley of counsel), for respondent.

PETER B. SKELOS, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.

Appeal by the defendant from a judgment of Supreme Court, Kings County (J. Goldberg, J.), rendered November 17, 2009, convicting him of murder in the second degree, attempted murder in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention, raised in his pro se supplemental brief, that the pretrial lineup identification should have been suppressed as the fruit of an illegal arrest, was previously rejected by this Court on a prior appeal ( see People v. Breazil, 52 A.D.3d 523, 860 N.Y.S.2d 137). That determination “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 this issue reconsidered” ( People v. Martinez, 194 A.D.2d 741, 741–742, 600 N.Y.S.2d 250 [internal quotation marks omitted]; see People v. Boone, 84 A.D.3d 1108, 1109, 925 N.Y.S.2d 512;People v. Riley, 22 A.D.3d 609, 610, 802 N.Y.S.2d 251). Under the circumstances presented here, there is no basis to reconsider that issue.

Contrary to the defendant's contention, the court properly determined, after a Sirois hearing ( see People v. Sirois, 92 A.D.2d 618, 459 N.Y.S.2d 813;see also Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591), that the testimony of a witness given at the first trial was admissible on the People's case-in-chief at the second trial. The People established, by clear and convincing evidence, that the witness was unavailable and that the unavailability was procured by misconduct on the part of the defendant ( see People v. Geraci, 85 N.Y.2d 359, 365–366, 625 N.Y.S.2d 469, 649 N.E.2d 817;People v. Dubarry, 107 A.D.3d 822, 967 N.Y.S.2d 132;People v. Roacher, 39 A.D.3d 569, 835 N.Y.S.2d 219).

[973 N.Y.S.2d 301]

Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to prove the defendant's guilt of murder in the second degree, attempted murder in the second degree, and criminal...