(dissenting). The procedure followed by the trial court was in conformity with section 358-a of the Code of Criminal Procedure. This section, in my opinion, was enacted to cover the very situation which occurred in this case. The procedure outlined by section 358-a of the code carries with it a strong presumption of constitutionality, which presumption has not been overcome in this case. The defendants were entitled to, and did receive, consideration of their guilt or innocence by 12 persons who had heard all the evidence. In addition, the alternate juror is entitled to the presumption that his verdict is arrived at after full and proper consideration.
Finally, I attach great significance to the fact that the substitution herein was made with the apparent consent of defendants’ counsel. This constituted a waiver of any objection.
Accordingly, I would affirm.
Chief Judge Desmond and Judges Fuld, Van Voobhis and Burke concur with Judge Keating ; Judge Scileppi dissents and votes to affirm in an opinion in which Judge Bergan concurs.
Judgments reversed, etc.