People v Bueno

2008 NY Slip Op 00114 [47 AD3d 642]

January 8, 2008

Appellate Division, Second Department

As corrected through Wednesday, March 12, 2008

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

—[*1]Lynn W. L. Fahey, New York, N.Y. (Jonathan Garvin of counsel), for appellant. RichardA. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, andAyelet Sela of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Braun, J.),rendered September 12, 2005, convicting him of criminal sale of marijuana in the fourth degree,upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

"[A]bsent bad faith . . . the prosecutor's failure to prove every statement in hisor her opening will not result in a jury's verdict being reversed" (People v Zienkowicz,213 AD2d 435, 436 [1995]; see People v De Tore, 34 NY2d 199, 207 [1974],cert denied sub nom. Wedra v New York, 419 US 1025 [1974]; People v Pierre, 35 AD3d 893[2006]; People v Thompson, 276 AD2d 811 [2000]; People v Seabrooks, 244AD2d 514 [1997]). In this instance, the prosecutor offered a good faith basis for believing hewould be able to offer competent proof of the statement at issue, notwithstanding that one policedetective witness would not be available for the trial. Crane, J.P., Rivera, Florio and Balkin, JJ.,concur.