People v. Lord , 246 N.Y.S.2d 158 ( 1963 )

Appeal by defendant from a judgment of the former County Court, Kings County, rendered December 12, 1961, after a jury trial, convicting him of robbery in the first degree, and imposing sentence. Judgment affirmed. The statement in the prosecutor’s opening address that the People would prove prior identification was erroneous at that time, but the cross-examination of complainant showed that identification was in issue, and the People did introduce evidence- of prior identification without objection. Under these circumstances, in view of the clear guilt of defendant, the error in the opening statement should be overlooked (Code Crim. Pro., § 542). Beldock, P. J., Christ and Rabin, JJ., concur; Kleinfeld and Hill, JJ., dissent and vote to reverse the judgment and to order a new trial, with the following memorandum: In his opening address to the jury the prosecutor stated he would produce evidence of a prior identification of defendant by the complaining witness. In our opinion this was error which requires a new trial in the interests of justice (see People v. Cioffi, 1 N Y 2d 70; People v. Hagedorny, 272 App. Div. 830).