Opinion
February 20, 1996
Appeal from the County Court, Nassau County (Belfi, J.).
Ordered that the judgment is modified, on the law, by providing that the terms of imprisonment imposed for the convictions of burglary in the first degree shall run concurrent with the term of imprisonment imposed for the conviction of felony murder; as so modified, the judgment is affirmed.
We reject the defendant's contention that his conviction warrants reversal as a result of certain comments made by the prosecutor in his opening statement. While the complained-of comments were improper, they did not warrant reversal in light of the court's prompt curative instructions to the jury ( see, People v. Berg, 59 N.Y.2d 294; People v. Hopkins, 58 N.Y.2d 1079; People v. Tayeh, 96 A.D.2d 1045) and the overwhelming evidence of guilt ( see, People v. Crimmins, 36 N.Y.2d 230; cf., People v Kennedy, 216 A.D.2d 491).
We also find unavailing the defendant's assertion that the sentences imposed for the two burglary convictions should run concurrent with the sentences imposed for the intentional murder conviction inasmuch as the intentional murder was separate and distinct from the burglary ( see, People v. Mebert, 194 A.D.2d 809; People v. Whiting, 182 A.D.2d 732; Penal Law § 70.25). As conceded by the People, however, the sentences imposed for the burglary convictions should run concurrent with the sentence imposed for the felony murder conviction since the burglary constituted a "material element" of the underlying felony murder offense ( see, Penal Law § 70.25; People v. German, 139 A.D.2d 529). Accordingly, the sentence is modified to that extent. Santucci, J.P., Krausman, Goldstein and Florio, JJ., concur.