Opinion
2003-03719.
May 16, 2005.
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.
Before: Florio, J.P., Schmidt, Santucci and Spolzino, JJ., concur.
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; People v. Smith, 13 AD3d 401, lv denied 4 NY3d 803). 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; People v. Allien, 302 AD2d 468, 469; People v. Lowery, 281 AD2d 491). 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; People v. Elliot, 216 AD2d 576). 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 US 466), 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, cert denied 534 US 899; People v. Cruz, 308 AD2d 458, 459; People v. Hudson, 296 AD2d 510, 511).
The defendant's remaining contentions are either unpreserved for appellate review or without merit.