Opinion
No. 2004-02870.
May 8, 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.
Lynn W. L. Fahey, New York, N.Y. (John Gemmill of counsel), for appellant, and appellant pro se.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Amy Appelbaum of counsel), for respondent.
Before: Miller, J.P., Angiolillo, Carni and Dickerson, JJ.
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; People v Page, 88 NY2d 1). 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) and, in any event, is without merit ( see People v Jeanty, 94 NY2d 507; People v Shelton,
31 AD3d 791; People v Aponte, 28 AD3d 672; People v Rodriguez, 301 AD2d 616; People v Merritt, 299 AD2d 370).
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), the challenged remarks were fair response to the defendant's summation ( see People v Marks, 6 NY2d 67, 77-78; People v Martinez, 27 AD3d 665, 666; People v West, 237 AD2d 470, 472), fair comment on the evidence ( see People v Campbell, 29 AD3d 601), 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).
The defendant's remaining contentions raised in his supplemental pro se brief are without merit.