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The PEOPLE, etc., respondent, v. Carlos PORTALATIN, appellant.
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 A.D.3d 401, 785 N.Y.S.2d 541, lv. denied 4 N.Y.3d 803, 795 N.Y.S.2d 178, 828 N.E.2d 94). 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 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47; People v. Allien, 302 A.D.2d 468, 469, 753 N.Y.S.2d 738; People v. Lowery, 281 A.D.2d 491, 721 N.Y.S.2d 775). 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 A.D.2d 525, 526, 685 N.Y.S.2d 262; People v. Elliot, 216 A.D.2d 576, 628 N.Y.S.2d 761). 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 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, 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 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160; People v. Cruz, 308 A.D.2d 458, 459, 764 N.Y.S.2d 197; People v. Hudson, 296 A.D.2d 510, 511, 745 N.Y.S.2d 475).
The defendant's remaining contentions are either unpreserved for appellate review or without merit.
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Decided: May 16, 2005
Court: Supreme Court, Appellate Division, Second Department, New York.
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FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
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