People v. Jian Guo Xia

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Demakos, J.), rendered August 15, 1996, convicting him of murder in the second degree, hindering prosecution in the first degree, and tampering with physical evidence (two counts), upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s challenge to a remark made by the prosecutor during summation is unpreserved for appellate review (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245) since after his objection was sustained, he failed to seek further ameliorative action (see, People v Heide, 84 NY2d 943). In any event, the prosecutor’s remark did not exceed the bounds of permissible rhetoric afforded counsel during argument (see, People v Ashwal, 39 NY2d 105, 109; People v Guerrero, 250 AD2d 703). Moreover, the remark complained of was a fair response to the defense counsel’s argument that the witness received a favorable deal in exchange for his testimony and so had an incentive to lie (see, People v Persaud, 237 AD2d 538). Further, the court correctly conveyed the burden of proof requirements regarding accomplice testimony to the jury, and the jury is presumed to have followed the instructions as given (see, People v Ferrer, 245 AD2d 569). The defendant’s remaining contentions are without merit. O’Brien, J. P., Florio, McGinity and Luciano, JJ., concur.