General

The People of the State of New York, Respondent, v. Donald Favor, Appellant

172 A.D.2d 1052·New York Supreme Court, Appellate Division·1991·NY

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Opinion

The People of the State of New York, Respondent, v Donald Favor, Appellant. [MAJORITY] Judgment unanimously affirmed. Memorandum: Defendant argues that the court erred in permitting the prosecutor to refer to unreliable chemical test results in his opening statement. We disagree. The court instructed the jury that the opening statements did not constitute evidence. The court also told the jury to disregard the chemist’s testimony about the testing procedures. Defendant failed to preserve for review his contention that the court erred in conducting a Sandoval hearing (see, People v Sandoval, 34 NY2d 371) in his absence and, since defendant did not establish prejudice, we decline to reach the issue in the interest of justice (see, People v Dunbar, 172 AD2d 1006 [decided herewith]). Defendant’s remaining contention lacks merit. (Appeal from Judgment of Monroe County Court, Connell, J.—Rape, 1st Degree.) Present—Callahan, J. P., Doerr, Green, Balio and Lowery, JJ.