People v. Baston , 836 N.Y.S.2d 622 ( 2007 )

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered March 24, 2004, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The substitution of an alternate juror during deliberations violates a defendant’s fundamental right to a trial by jury, and therefore requires the consent of the defendant (see CPL 270.35 [1]; People v Page, 88 NY2d 1 [1996]). Here, however, there is no evidence that deliberations had already begun when the court made a substitution. The defendant’s alternative contention that the trial court abused its discretion in discharging the juror prior to deliberations is unpreserved for appellate review (see CPL 470.05 [2]) and, in any event, is without merit (see People v Jeanty, 94 NY2d 507 [2000]; People v Shelton, 31 AD3d 791 [2006]; People v Aponte, 28 AD3d 672 [2006]; People v Rodriguez, 301 AD2d 616 [2003]; People v Merritt, 299 AD2d 370 [2002]).

The defendant’s contention that the prosecutor’s summation statements deprived him of a fair trial is also without merit. Viewed in the context of the entire summation and trial (see People v Galloway, 54 NY2d 396, 401 [1981]), the challenged remarks were fair response to the defendant’s summation (see People v Marks, 6 NY2d 67, 77-78 [1959]; People v Martinez, 27 AD3d 665, 666 [2006]; People v West, 237 AD2d 470, 472 [1997]), fair comment on the evidence (see People v Campbell, 29 AD3d 601 [2006]), or harmless in light of the overwhelming evidence of the defendant’s guilt and the court’s curative instructions (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).

The defendant’s remaining contentions raised in his supplemental pro se brief are without merit. Miller, J.E, Angiolillo, Garni and Dickerson, JJ., concur.