PEOPLE v. BELLAMY

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Scott BELLAMY, Appellant.

Decided: February 23, 1998

Before THOMPSON, J.P., and PIZZUTO, JOY and FLORIO, JJ. Daniel L. Greenberg, New York City (Daniel Hsiung, of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Linda Cantoni, and Cheryl Hone, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Thomas, J.), rendered December 18, 1995, convicting him of criminal possession of a weapon in the third degree (two counts), unlawful imprisonment in the first degree, theft of services (two counts), and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that his conviction should be reversed because of prosecutorial misconduct is without merit.   The prejudice, if any, arising from the prosecutor's reference in the opening statement to evidence that had previously been suppressed, or the prosecutor's elicitation of hearsay testimony, was cured, respectively, by the court's prompt instructions to the jury (see, People v. Nathan, 224 A.D.2d 640, 639 N.Y.S.2d 412;  People v. Rivera, 142 A.D.2d 614, 530 N.Y.S.2d 269) and the immediate striking of the testimony (see, People v. Thornton, 157 A.D.2d 758, 550 N.Y.S.2d 52;  People v. Nagi, 153 A.D.2d 964, 545 N.Y.S.2d 403).

Further, the defendant failed to meet his burden of demonstrating that the prosecutor engaged in a “pattern of purposeful exclusion sufficient to raise an inference of discrimination” (People v. Bolling, 79 N.Y.2d 317, 325, 582 N.Y.S.2d 950, 591 N.E.2d 1136;   see, People v. Morris, 217 A.D.2d 710, 630 N.Y.S.2d 329;  see generally, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69;  and People v. Jenkins, 75 N.Y.2d 550, 555 N.Y.S.2d 10, 554 N.E.2d 47).

 The imposition of consecutive sentences was proper (see, Penal Law § 70.25[2] ), since the offense of criminal possession of a weapon is by itself a complete and separate crime regardless of any unlawful use of the weapon (see, People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463), and is not a material element of the offense of unlawful imprisonment in the first degree (see, Penal Law §§ 135.10, 265.02[1], [4];  cf., People v. Laureano, 87 N.Y.2d 640, 644, 642 N.Y.S.2d 150, 664 N.E.2d 1212).

We have considered the defendant's remaining contentions and find them to be without merit.

MEMORANDUM BY THE COURT.

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