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THE PEOPLE, ETC., RESPONDENT, v. PETER THOMPSON, APPELLANT. (IND. NO. 3115/97)

DECISION ORDER

ORDERED that the judgment is affirmed.

The defendant argues that his Sixth Amendment right to confrontation was violated by references, in the prosecutor's opening statement and a police detective's testimony, to an accomplice who was not produced at trial. However, this contention is unpreserved for appellate review since the defendant did not move for a mistrial and did not object to the detective's testimony (see, CPL 470.0 5[2]; People v. Fleming, 70 N.Y.2d 947, 948; People v. Seabrooks, 244 A.D.2d 514; People v. Rizzo, 175 A.D.2d 221).

In any event, the fact that the accomplice did not testify does not require a new trial. When the People fail to produce a witness referred to in opening statements, "the general rule is that, absent bad faith or undue prejudice, a trial will not be undone" (People v. De Tore, 34 N.Y.2d 199, 207, cert denied 419 U.S. 1025). The defendant concedes that the prosecutor did not act in bad faith, and in light of the overwhelming evidence against the defendant, there is no significant probability that the jury would have acquitted him had it not heard the references to this witness. Therefore, the defendant was not unduly prejudiced (see, People v. Rizzo, supra, 222; see also, People v. Williams, 222 A.D.2d 721).

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PEOPLE v. THOMPSON
(Oct 30, 2000)