People v. Rivera

142 A.D.2d 614, 530 N.Y.S.2d 269, 1988 N.Y. App. Div. LEXIS 7341

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Owens, J.), rendered February 15, 1985, convicting him of attempted murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s claim that he was denied a fair trial by the prosecutor’s reference in his opening statement to suppressed lineup identification evidence is without merit. While the reference was improper, any possible prejudice arising therefrom was cured by the court’s prompt curative instruction and jury charge, which informed the jury that statements of the attorneys did not constitute evidence (see, People v Reid, 140 AD2d 639; People v Sanders, 108 AD2d 316, affd 66 NY2d 906). Moreover, other references to the suppressed lineup identification were harmless in light of the overwhelming proof of the defendant’s guilt (see, People v Crimmins, 36 NY2d 230, 242).

Finally, the court properly ordered the indeterminate sentence imposed on the instant conviction to run consecutively to the indeterminate sentence imposed on a prior felony conviction since the defendant was convicted of a violent felony offense committed after he had been released on bail on a pending felony charge (see, Penal Law § 70.25 [2-b]; People v Camacho, 120 AD2d 671). Thompson, J. P., Spatt, Sullivan and Harwood, JJ., concur.