People v. Smith , 741 N.Y.S.2d 891 ( 2002 )

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (F. Rivera, J.), rendered June 30, 1999, convicting him of murder in thé second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s claims that the prosecutor improperly used a witness’s prior grand jury testimony to refresh his recollection, and that the trial court erred in instructing the jury that it could consider such testimony for credibility purposes, are unpreserved for appellate review (see CPL 470.05 [2]). In any event, the prosecutor properly used the witness’s grand jury testimony to refresh his recollection (see CPL 60.35 [3]; People v Reed, 40 NY2d 204).

The prosecutor’s comments during summation do not require reversal because they were, for the most part, a fair comment on the evidence and were responsive to the defense counsel’s summation (see People v Conethan, 120 AD2d 604). Further, to the extent that the prosecutor’s comments exceeded proper bounds, the trial court provided timely curative instructions to ameliorate any potential prejudice that might have resulted (see People v Scotti, 220 AD2d 543). Feuerstein, J.P., O’Brien, Adams and Cozier, JJ., concur.