Opinion
February 8, 1994
Appeal from the Supreme Court, New York County (Alvin Schlesinger, J.).
Defendant's first conviction for murder in the second degree and rape in the first degree was reversed by this Court because of a Molineux violation (People v. Molineux, 121 A.D.2d 87). Defendant's claim that he was denied Brady material (Brady v Maryland, 373 U.S. 83) at his first trial is without merit. Assuming, arguendo, the merit of this claim, with reference to his first trial, that alleged deprivation is unrelated to the foreign witness' non-appearance at defendant's subsequent trials. In any event, there was an insufficient showing that the witness could contribute any material testimony.
The court correctly denied defendant's motion to bar this second re-trial on double jeopardy grounds (see, People v Perez, 169 A.D.2d 654, lv denied 77 N.Y.2d 999). This Court's dismissal of defendant's subsequent CPLR article 78 petition based on this contention (Matter of Sanza v. Morgenthau, 134 A.D.2d 966, appeal dismissed 72 N.Y.2d 994) constitutes a res judicata bar to any further judicial consideration of it (People v. Di Raffaele, 55 N.Y.2d 234, 243).
In sentencing defendant, the trial court properly considered the particularly brutal nature of this crime and defendant's extensive record of similar violent behavior. In the circumstances we do not find the sentence imposed to be unduly harsh and we decline to reduce it.
We have considered defendant's remaining claims and find them to be without merit.
Concur — Wallach, J.P., Kupferman, Ross and Nardelli, JJ.