Opinion
(1754) KA 97-05120
December 21, 2001.
(Appeal from Judgment of Oneida County Court, Merrell, J. — Murder, 2nd Degree.)
PRESENT: GREEN, J.P., HAYES, HURLBUTT, BURNS AND LAWTON, JJ.
Judgment unanimously affirmed. Memorandum:
We reject the contention of defendant that County Court erred in denying his motion for a mistrial based upon the references of the prosecutor in his opening statement to the anticipated testimony of a witness who fled the country and did not testify at trial. "[T]he general rule is that, absent bad faith or undue prejudice, a trial will not be undone" based upon "the unfulfilled representations in an opening [statement]" ( People v. De Tore, 34 N.Y.2d 199, 207, cert denied 419 U.S. 1025). Here, there is no evidence of bad faith on the part of the prosecutor and any prejudice to defendant was minimized or negated when the court granted his alternative request for a missing witness charge with respect to that witness ( see, People v. Broadus, 129 A.D.2d 997, lv denied 70 N.Y.2d 643). We further reject the contention of defendant that he was denied a fair trial by prosecutorial misconduct during summation. The "isolated instances of prosecutorial misconduct did not cause `such substantial prejudice to the defendant that he has been denied due process of law'" ( People v. Chislum, 244 A.D.2d 944, 945, lv denied 91 N.Y.2d 924, quoting People v. Mott, 94 A.D.2d 415, 419). The court's Sandoval ruling, allowing the prosecutor to cross-examine defendant concerning the fact of a prior felony conviction and not its underlying circumstances, does not constitute an abuse of discretion ( see, People v. Szczepanski, 172 A.D.2d 884, 885, lv denied 78 N.Y.2d 957). The sentence is not unduly harsh or severe.