The People of the State of New York, Respondent, v. Benedicto Valerio-Reyes, Appellant

The People of the State of New York, Respondent, v Benedicto Valerio-Reyes, Appellant. [604 NYS2d 815] [MAJORITY] —Appeal by the defendant from a judgment of the Supreme Court, Queens County (Sherman, J.), rendered February 4, 1991, convicting him of attempted robbery in the second degree under Indictment No. 178/90, upon a jury verdict, and imposing sentence, and an amended judgment of the same court, also rendered February 4, 1991, revoking a sentence of probation previously imposed by the same court (Clabby, J.), upon his admission, and imposing a term of imprisonment upon his prior conviction of reckless endangerment in the first degree, operating a motor vehicle while intoxicated (two counts), criminal mischief in the fourth degree, and reckless driving, under Indictment No. 5845/88. Ordered that the judgment and amended judgment are affirmed. The defendant contends that he was deprived of a fair trial under Indictment No. 178/90 by the prosecutor’s comments during summation. However, the issue is unpreserved for appellate review. In any event, we find that the prosecutor’s comments were a fair response to the defense summation (see, People v Rivera, 171 AD2d 583; People v Colon, 122 AD2d 151). Since the appeal from the judgment is affirmed, the appeal from the amended judgment must also be affirmed (cf., People v Clark, 45 NY2d 432). Lawrence, J. P., Eiber, O’Brien and Santucci, JJ., concur.