PEOPLE v. BARNES (2006)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered July 13, 2004, convicting him of robbery in the first degree, robbery in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant did not preserve for appellate review his contentions that he was deprived of a fair trial by the trial court's preliminary jury instructions or by the People's comments during summation because he failed to make specific and timely objections (see CPL 470.05[2] ).   In any event, these contentions are without merit.

 Although preliminary instructions to the jury must not create the possibility of premature deliberations (see People v. Harper, 32 A.D.3d 16, 818 N.Y.S.2d 113, lv. granted 7 N.Y.3d 813, 822 N.Y.S.2d 488, 855 N.E.2d 804 [2006] ), a trial court is “not required to give verbatim the pattern jury instructions” (People v. Calderon, 182 A.D.2d 770, 582 N.Y.S.2d 769).   Here, the trial court did not prematurely instruct the jury on the elements of the crimes or the charges against the defendant (see People v. Townsend, 67 N.Y.2d 815, 817, 501 N.Y.S.2d 638, 492 N.E.2d 766;  People v. Harper, supra ).   The trial court's preliminary instructions met the requirements of CPL 270.40 and were sufficient for the jury, having heard the court's charge, to understand the correct rules to be applied in arriving at a decision (cf. People v. Lauderdale, 295 A.D.2d 539, 746 N.Y.S.2d 163).

 The prosecutor's comments during summation were a fair response to the defendant's attack on the credibility of the police witnesses and his suggestion that the police fabricated the case against the defendant (see People v. Farrell, 228 A.D.2d 693, 694, 646 N.Y.S.2d 124;  People v. Campbell, 228 A.D.2d 689, 690, 646 N.Y.S.2d 129).   The comments did not “demonstrate a persistent, egregious course of conduct that was deliberate and reprehensible” (People v. Rudolph, 161 A.D.2d 115, 116, 554 N.Y.S.2d 843;  see People v. Svanberg, 293 A.D.2d 555, 739 N.Y.S.2d 837).   Nor did the comments deprive the defendant of a fair trial (see People v. Ortiz, 125 A.D.2d 502, 509 N.Y.S.2d 418).

The defendant's remaining contentions are without merit.