         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
82
KA 08-01878
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DERRICK GAUSE, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL),
FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered August 7, 2008. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of murder in the second degree (Penal Law § 125.25 [1]
[intentional murder]), defendant contends that his retrial is barred
by double jeopardy. In a prior appeal from the judgment convicting
defendant of murder in the second degree (§ 125.25 [2] [depraved
indifference murder]) following his first trial, we noted that the
jury considered only the depraved indifference murder count and did
not reach the intentional murder count (People v Gause, 46 AD3d 1332,
lv dismissed 10 NY3d 811). We concluded that the evidence was legally
insufficient to support the conviction of depraved indifference
murder, and we reversed the judgment, dismissed the depraved
indifference murder count and granted a new trial on the intentional
murder count (id.). We stated that, “[b]ecause the jury never
considered the intentional murder count, we agree with the People that
double jeopardy does not preclude a new trial on that count” (id. at
1333). Our prior decision is the law of the case and thus
reconsideration of the double jeopardy issue is precluded absent a
showing that the “prior decision was based on manifest error or that
exceptional circumstances exist to warrant a departure from the law of
the case doctrine” (People v Collins, 238 AD2d 435, 436, lv denied 90
NY2d 903, 91 NY2d 890). We conclude that neither of those exceptions
exists here.

     We further conclude that defendant’s contention with respect to
the charge on accomplice liability is not preserved for our review
                                 -2-                              82
                                                           KA 08-01878

(see People v Kendricks, 23 AD3d 1119), and we   decline to exercise our
power to review that contention as a matter of   discretion in the
interest of justice (see CPL 470.15 [6] [a]).    We have considered
defendant’s remaining contentions and conclude   that they are without
merit.




Entered:   February 10, 2011                      Patricia L. Morgan
                                                  Clerk of the Court
