Defendant's motion to suppress physical evidence was properly denied. There was no evidence that defendant had any reasonable expectation of privacy in the abandoned, vacant apartment, and the doctrine of "automatic standing" was inapplicable because the People adequately, although inartfully, apprised the hearing court of their intention to rely on ordinary constructive possession in addition to the "room presumption" of Penal Law § 220.25 (2) (People v Tejada, 81 N.Y.2d 861, 863).
The court did not abuse its discretion in denying the drastic remedy of an immediate mistrial (People v Rice, 75 N.Y.2d 929, 932; see also, People v Santiago, 52 N.Y.2d 865, 866), the only remedy requested by defendant, when evidence of premature deliberations arose. While we agree with defendant that the court's replacement of a particular juror did not necessarily address the possibility of premature deliberations by other jurors, nevertheless, defendant, having spurned the suggestion that the remaining jurors be interviewed, was not entitled to a mistrial.
The prosecutor's comment on defendant's failure to call his former codefendant as a witness was improper (People v De Jesus, 42 N.Y.2d 519, 525), but could not have prejudiced defendant in view of the overwhelming evidence of guilt.
Concur — Sullivan, J.P., Ellerin, Wallach, Asch and Williams, JJ.