People v. Rodriguez

181 A.D.2d 641, 582 N.Y.S.2d 16, 1992 N.Y. App. Div. LEXIS 5185

Opinion

— Judgment, Supreme Court, New York County (Herbert I. Altman, J.), rendered July 27, 1990, convicting defendant, after jury trial, of robbery in the second degree, and sentencing him to a term of imprisonment of 5 to 10 years, unanimously affirmed.

In the absence of a showing of bad faith or prejudice, the prosecutor’s reference during his opening statement to the anticipated testimony of a police officer, placing defendant near the scene of the robbery a half-hour before its commission, did not require a mistrial when the officer could not be produced at trial (People v De Tore, 34 NY2d 199, 207, cert denied sub nom. Wedra v New York, 419 US 1025). Inasmuch as the People’s identification witness had seen defendant six days prior to the commission of the robbery, observed him during the robbery itself, and spontaneously identified him the day after the robbery, we find any corroboration of that identification by the prosecutor’s opening statement to have been inconsequential. Concur — Milonas, J. P., Ellerin, Kupferman, Asch and Kassal, JJ.