People v. Musmacher

133 A.D.2d 352, 519 N.Y.S.2d 253, 1987 N.Y. App. Div. LEXIS 49859

Opinion

—Appeal by the defendant from a judgment of the County Court, Suffolk County (Friedlander, J.), rendered October 27, 1982, convicting him of grand larceny in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

We do not reach the propriety of the trial court’s Huntley ruling since the alleged statements made by the defendant to the police were not introduced at trial on the People’s direct case. While the prosecutor referred to these admissions in his opening statement, it is a basic rule of law that an opening statement is not evidence, and the jury was so advised by the court, and by both the prosecutor and the defense counsel. Thus, any possible prejudice arising therefrom was obviated (see, People v Escala, 128 AD2d 546).

With respect to that branch of the defendant’s omnibus motion which was to suppress certain physical evidence, we agree with the hearing court that the defendant failed to present any facts which would raise an issue regarding the legality of the search of the defendant’s person which resulted in the seizure of an ammunition clip.

Further, there is no reason to disturb the court’s determination, made after a hearing pursuant to CPL 400.21 (7), that the defendant had been previously convicted of a felony, which conviction had not been obtained in violation of his constitutional rights. Moreover, the sentence was not excessive.

The defendant’s remaining contentions, including those presented in his pro se letter dated March 24, 1987, in which he requests, inter alia, that we strike the respondent’s brief, are found to be either unpreserved for appellate review or without merit. Mollen, P. J., Mangano, Brown and Lawrence, JJ., concur.