SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
October 15, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ANTHONY RIVARA, APPELLANT
Appeal from a judgment of the Supreme Court, Queens County, rendered June 21, 1968, convicting appellant of petit larceny upon each of three indictments, after a consolidated non-jury trial, and imposing sentence, with execution of sentence suspended. Upon the appeal this court has reviewed three orders of the same court, made the same date (each order with respect to a respective one of the three indictments), which denied appellant's motion for a new trial on the ground of newly discovered evidence.
Beldock, P. J., Christ, Munder, Martuscello and Kleinfeld, JJ., concur.
Appellant contends, inter alia, that he was denied a full opportunity to defend by the prosecution's failure to make an opening statement (citing Code Crim. Pro. § 388, subd. 1). The cited statute by its terms applies to jury trials. In such trials, the opening is mandatory and cannot be waived (People v. McLaughlin, 291 N. Y. 480). A different situation is presented in non-jury trials. There, an opening is not necessary, because the purpose of the opening is to give the jury a preview of the evidence so that they "may better understand and appreciate its connection and bearing upon the case" (People v. Benham, 160 N. Y. 402, 434; see People v. Kohilakis, 49 Misc. 2d 213). We hold therefore that the opening may be waived in a non-jury trial and that a waiver did occur at bar. Defense counsel specifically consented to the prosecutor's request to omit his opening. We have examined appellant's other contentions and find them to be without merit.
Judgment and orders affirmed.
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