People v. Del Valle

Judgment, Supreme Court, Bronx County (Lawrence Bernstein, J.), rendered July 16, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5V2 to 11 years, unanimously affirmed.

The record clearly establishes that when the court substituted a grossly unqualified juror with an alternate juror, the jury had not yet assembled in the jury room to deliberate. When the court made it clear that it had not dismissed the alternates and that the jury had not started deliberating, defense counsel did not dispute or object to this finding. Accordingly, inasmuch as the substitution occurred at a stage prior to the commencement of actual deliberations by the jury, defendant’s consent, pursuant to CPL 270.35, was not required (see, People v Ortiz, 92 NY2d 955, 957). Concur — Rosenberger, J. P., Ellerin, Wallach, Rubin and Marlow, JJ.