Opinion
September 30, 1985
Appeal from the Supreme Court, Queens County (Giaccio, J.).
Judgments affirmed.
Viewing the evidence in the light most favorable to the people, as we must (see, People v Contes, 60 N.Y.2d 620), we find defendant's guilt of burglary in the second degree and criminal possession of stolen property in the third degree under indictment No. 2316/82 was proven beyond a reasonable doubt. Defendant was identified near the scene of the crime by one witness as one of two men who he had seen only minutes before running out of his aunt's house, carrying a pillowcase. Another witness, a resident of the house that was burglarized, also identified defendant as one of the perpetrators and also identified the contents of the pillowcase, which had been filled with various household items. The credibility of these witnesses was for the jury to determine (see, People v Joyiens, 39 N.Y.2d 197; People v Bigelow, 106 A.D.2d 448). Defendant's motion for a Wade hearing was properly denied because the identifications were made spontaneously and were not the product of an identification procedure arranged by the police (see, e.g., People v Logan, 25 N.Y.2d 184, 193, cert denied 396 U.S. 1020; People v Parente, 104 A.D.2d 667; People v Dukes, 97 A.D.2d 445).
The fact that the prosecutor failed to call a witness that he indicated in his opening statement he would call does not mandate a reversal, in view of the lack of prejudice to the defendant and the fact that defendant failed to raise any objection to this omission at the trial (see, People v De Tore, 34 N.Y.2d 199, cert denied sub nom. Wedra v New York, 419 U.S. 1025; cf. People v Cruz, 100 A.D.2d 882). The fact that the prosecutor displayed a knife to the jury which was found on the codefendant upon his arrest does not require a reversal since defense counsel opened the door to such evidence (see, People v Melendez, 55 N.Y.2d 445). Moreover, the trial court refused to permit the knife to be introduced in evidence, and instructed the jury to disregard any items not in evidence. The comments made by the prosecutor during his summation were proper responses to the summations of the defense counsels (see, People v Marks, 6 N.Y.2d 67, 77-78, cert denied 362 U.S. 912). The trial court's charge regarding evidence of flight as a consciousness of guilt was entirely proper (see, People v Yazum, 13 N.Y.2d 302), and the charges on circumstantial evidence and eyewitness identification were adequate (see, People v Sanchez, 61 N.Y.2d 1022, 1024; People v Morris, 36 N.Y.2d 877; People v Whalen, 59 N.Y.2d 273). We have considered defendant's other contentions and find them to be without merit. Gibbons, J.P., Thompson, Weinstein and Kunzeman, JJ., concur.