People v. Javier

—Judgment, Supreme Court, Bronx County (John Collins, J.), rendered August 15, 1991, convicting defendant, after a jury trial, of manslaughter in the first degree and attempted murder in the second degree, and sentencing him, as an armed violent felony offender, to consecutive terms of 10 to 20 years and 8 to 16 years, respectively, unanimously affirmed. The trial court properly substituted an alternate for a sworn juror after the clerk received a phone call from an unidentified friend of the juror indicating that the juror’s father had passed away, and that she had left for Florida and would not be able to continue (see, People v McDonald, 143 AD2d 1050, lv denied 73 NY2d 857). There is no merit to defendant’s claim that an unbroken chain of custody for the 119 jacket’s admission was not established since the jacket was not fungible and the People established that it had not been tampered with (see, People v McGee, 49 NY2d 48, 60, cert denied sub nom. Waters v New York, 446 US 942). While the trial court should have issued limiting instructions with respect to defendant’s witness’ failure to come forward with exculpatory information (People v Dawson, 50 NY2d 311), we find that in view of the overwhelming proof of defendant’s guilt, the error was harmless (People v Crimmins, 36 NY2d 230). We have reviewed defendant’s remaining claims, including those in his pro se supplemental brief, and find them to be without merit. Concur—Sullivan, J. P., Rosenberger, Wallach and Asch, JJ.