PEOPLE v. BASTON (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 N.Y.2d 1, 643 N.Y.S.2d 1, 665 N.E.2d 1041).   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 N.Y.2d 507, 706 N.Y.S.2d 683, 727 N.E.2d 1237;  People v. Shelton, 31 A.D.3d 791, 818 N.Y.S.2d 618;  People v. Aponte, 28 A.D.3d 672, 813 N.Y.S.2d 224;  People v. Rodriguez, 301 A.D.2d 616, 753 N.Y.S.2d 854;  People v. Merritt, 299 A.D.2d 370, 749 N.Y.S.2d 162).

 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 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885), the challenged remarks were fair response to the defendant's summation (see People v. Marks, 6 N.Y.2d 67, 77-78, 188 N.Y.S.2d 465, 160 N.E.2d 26;  People v. Martinez, 27 A.D.3d 665, 666, 810 N.Y.S.2d 686;  People v. West, 237 A.D.2d 470, 472, 655 N.Y.S.2d 570), fair comment on the evidence (see People v. Campbell, 29 A.D.3d 601, 813 N.Y.S.2d 313), or harmless in light of the overwhelming evidence of the defendant's guilt and the court's curative instructions (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The defendant's remaining contentions raised in his supplemental pro se brief are without merit.