The People of the State of New York, Respondent, v. Kenneth Smith, Appellant

The People of the State of New York, Respondent, v Kenneth Smith, Appellant. [721 NYS2d 516] [MAJORITY] Judgment, Supreme Court, Bronx County (Patricia Williams, J., at suppression hearing; Denis Boyle, J., at jury trial and sentence), rendered December 9, 1997, convicting defendant of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 15 years, unanimously affirmed. The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility and the reliability of the identification testimony were properly placed before the jury and there is no reason to disturb its determinations. Defendant’s suppression motion was properly denied. There is no basis upon which to disturb the court’s credibility determinations, which are supported by the record. The portion of the prosecutor’s summation challenged by defendant as allegedly stating facts not in evidence does not warrant reversal since, upon defendant’s objection, the court instructed the jury that the summation was not evidence and that the jury’s recollection controlled. Defendant’s remaining attacks on the prosecutor’s summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the summation comments were proper responses to defendant’s summation (see, People v Overlee, 236 AD2d 133, lv denied 91 NY2d 976; People v D'Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884). Concur — Rosenberger, J. P., Andrias, Wallach, Rubin and Buckley, JJ.