People v. Favor

• Decision Date: 26 April 1991
• Parties: PEOPLE of the State of New York, Respondent, v. Donald FAVOR, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 408

571 N.Y.S.2d 408

172 A.D.2d 1052

PEOPLE of the State of New York, Respondent, v. Donald FAVOR, Appellant.

Supreme Court of New York, Appellate Division,

Fourth Department.

April 26, 1991

Edward J. Nowak by Drew Dubrin, Rochester, for appellant. Howard R. Relin by Wendy Lehman, Rochester, for respondent.

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 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) 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 A.D.2d 1006, 569 N.Y.S.2d 266 [decided herewith]. Defendant's remaining contention lacks merit. (Appeal from Judgment of Monroe County Court, Connell, J.--Rape, 1st Degree.)

CALLAHAN, J.P., and DOERR, GREEN, BALIO and LOWERY, JJ., concur.