Opinion
2003-02359.
Decided June 14, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered February 27, 2003, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (Winston McIntosh and Sonia Mikoli-Torreira of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Slevin of counsel; Judith M. Donovan on the brief), for respondent.
Before: HOWARD MILLER, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, ROBERT A. SPOLZINO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention regarding the preliminary instructions given to the jury ( see People v. Hickey, 133 A.D.2d 421). In any event, such instructions eventually were given and adequately conveyed to the jury its function, duties, and conduct ( see CPL 270.40; People v. Fleming, 270 A.D.2d 498; People v. Moore, 161 A.D.2d 733).
The defendant's contention that the prosecutor vouched for his own witnesses is also unpreserved for appellate review ( see CPL 470.05; People v. Halm, 81 N.Y.2d 819). In any event, the prosecutor's statements constituted fair responses to remarks made by the defense counsel during summation ( see People v. Halm, supra at 821; People v. Ashwal, 39 N.Y.2d 105; People v. Clinton, 5 A.D.3d 501; People v. Ryant, 278 A.D.2d 345).
H. MILLER, J.P., GOLDSTEIN, LUCIANO and SPOLZINO, JJ., concur.