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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CARLOS PORTALATIN, Appellant.

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.

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PEOPLE v. PORTALATIN
(May 16, 2005)