People v. Lowery

281 A.D.2d 491, 721 N.Y.S.2d 775, 2001 N.Y. App. Div. LEXIS 2363

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 2001
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered November 12, 1998, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the prosecutor’s questioning on cross-examination and suggestion during summation that the defendant tailored his testimony after hearing the testimony of the prosecution witnesses, was not unduly prejudicial (see, Portuondo v Agard, 529 US 61; People v Swift, 272 AD2d 126). The prosecutor properly attacked the defendant’s credibility, 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 was not prejudiced by the brief and limited questioning of the arresting officer regarding the mechanics of drug sales (see, People v Graves, 85 NY2d 1024, 1026; People v McAllister, 255 AD2d 241). Santucci, J. P., S. Miller, McGinity and Smith, JJ., concur.