PEOPLE v. BASTON

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.