Opinion
Submitted September 21, 2000
October 24, 2000.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered September 24, 1996, convicting him of sexual abuse in the first degree and criminal impersonation in the first degree, upon a jury verdict, and imposing sentence.
Robin C. Smith, Brooklyn, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Slevin of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY, DANIEL F. LUCIANO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that an explanatory comment by the Supreme Court as to why an adjournment was required constituted reversible error is without merit . The comment was made immediately subsequent to opening arguments. As neither the complainant nor any other witness had testified, there was no testimony to believe or disbelieve, and the Supreme Court's comment did not indicate that it credited the complainant in any respect (see, People v. Moulton, 4 3 N.Y.2d 944, 945; People v. De Jesus, 42 N.Y.2d 519, 523-524). The comment was merely descriptive of the complainant rather than purportedly conclusive as to an element of the crime. Moreover, the defendant was acquitted of the robbery counts. Accordingly, the alleged error might have had an effect only with respect to the count of criminal impersonation. Concerning that count, the jury could have found that the defendant attempted to rob the complainant in the course of impersonating a police officer. In light of the overwhelming evidence of the defendant's guilt of this crime, the error, if any, was harmless (see, People v. Crimmins, 36 N.Y.2d 230).
The defendant's remaining contentions are either unpreserved for appellate review or without merit.