Appellate Division of the Supreme Court of New York, 1992

People v. Rodriguez

People v. Rodriguez
Appellate Division of the Supreme Court of New York · Decided March 31, 1992
181 A.D.2d 641; 582 N.Y.S.2d 16; 1992 N.Y. App. Div. LEXIS 5185
People v. Rodriguez

Opinion of the Court

— 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 *642prosecutor’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.

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