| People v Portalatin |
| 2005 NY Slip Op 04065 [18 AD3d 673] |
| May 16, 2005 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The People of the State of New York, Respondent, v Carlos Portalatin, Appellant. |
—[*1]
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered April 28, 2003, convicting him of kidnapping in the second degree and robbery in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the prosecutor's allegedly improper questions during cross-examination and comments during summation constituted reversible error is unpreserved for appellate review (see CPL 470.05 [2]; People v Smith, 13 AD3d 401 [2004], lv denied 4 NY3d 803 [2005]). In any event, contrary to the defendant's contention, the prosecutor's questioning of him on cross-examination and suggestion during summation that he tailored his testimony after hearing the testimony of the prosecution's witnesses, was not unduly prejudicial (see Portuondo v Agard, 529 US 61 [2000]; People v Allien, 302 AD2d 468, 469 [2003]; People v Lowery, 281 AD2d 491 [2001]). The prosecutor's attack on the defendant's credibility does not require reversal, and his comments on summation were fair responses to the defense counsel's summation (see People v Banks, 258 AD2d 525, 526 [1999]; People v Elliot, 216 AD2d 576 [1995]). As such, the prosecutor's questions and remarks were entirely within the bounds of fair comment.
The defendant's contentions that his sentencing as a persistent felony offender violated his constitutional rights to notice and a jury trial pursuant to Apprendi v New Jersey (530 [*2]US 466 [2000]), and that the Supreme Court did not comply with the procedural requirements of Penal Law § 70.10 and CPL 400.20 in adjudicating him a persistent felony offender, are unpreserved for appellate review and, in any event, without merit (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]; People v Cruz, 308 AD2d 458, 459 [2003]; People v Hudson, 296 AD2d 510, 511 [2002]).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Florio, J.P., Schmidt, Santucci and Spolzino, JJ., concur.