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People v. Portalatin

Appellate Division of the Supreme Court of New York, Second Department
May 16, 2005
18 A.D.3d 673 (N.Y. App. Div. 2005)

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.


Summaries of

People v. Portalatin

Appellate Division of the Supreme Court of New York, Second Department
May 16, 2005
18 A.D.3d 673 (N.Y. App. Div. 2005)
Case details for

People v. Portalatin

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CARLOS PORTALATIN…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 16, 2005

Citations

18 A.D.3d 673 (N.Y. App. Div. 2005)
795 N.Y.S.2d 334

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