People v. Baston

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…