
    The People of the State of New York, Respondent, v David Melendez, Appellant.
   Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered December 2, 1988, convicting defendant, after a trial by jury, of criminal possession of a controlled substance in the third degree, and sentencing him to an indeterminate term of imprisonment of 6 to 12 years, unanimously affirmed.

This Court has already found, on review of the conviction of defendant’s co-defendant (People v Rivera, 171 AD2d 459), that the court’s missing witness charge and the prosecutor’s comment concerning the defendants’ failure to produce a witness were not improper. We see no reason to disturb that finding. Moreover, a review of the record reveals that other comments made by the prosecutor in summation, which defendant argues deprived him of a fair trial, were in large part a fair response to the comments of both defense counsel. (People v Galloway, 54 NY2d 396; People v Rivera, 158 AD2d 344.) To the extent that these comments may have exceeded the bounds of fair comment, any error was clearly harmless in light of the overwhelming evidence of guilt (People v Crimmins, 36 NY2d 230).

Defendant’s pro se argument concerning the propriety of the verdict sheet has not been preserved for review. (CPL 470.05 [2].) Moreover, were we to review it in the interest of justice, we would find that the verdict sheets were completely proper and in compliance with CPL 310.20.

Finally, the dismissal of two alternate jurors after the commencement of deliberations outside the presence of defendant and counsel, does not require reversal. It is not only clear from the record that defense counsel consented to the discharge, as required by CPL 270.30, but, since the regular jury was able to reach a verdict without recourse to the alternates, even had there been error, no prejudice would have been caused to defendant. Moreover, defendant’s presence was not required for the court to perform this purely ministerial act (see, People v Brown, 168 AD2d 357). Concur— Carro, J. P., Milonas, Ellerin, Smith and Rubin, JJ.  