— Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered October 20, 2009. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree (two counts), menacing a police officer and loitering.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]), and one count each of menacing a police officer (§ 120.18) and loitering (§ 240.35 [2]). Defendant failed to preserve for our review his contention that the conviction of one of the two counts of criminal possession of a weapon and the conviction of menacing a police officer are not supported by legally sufficient evidence (see People v Gray, 86 NY2d 10, 19 [1995]) and, in any event, that contention lacks merit. Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that there is legally sufficient evidence to establish that defendant intended to use the revolver unlawfully against another (see § 265.03 [1] [b]; see generally People v Hunter, 46 AD3d 1417, 1417 [2007], lv denied 10 NY3d 812 [2008]) and intended to place the officers in reasonable fear of physical injury, serious physical injury or death (see § 120.18; People v McCottery, 90 AD3d 1323, 1324-1325 [2011]). The offi
Defendant’s further contention that he was denied a fair trial by prosecutorial misconduct is not preserved for our review (see People v Thomas, 96 AD3d 1670, 1673 [2012]) and, in any event, is without merit. Although defendant is correct that the prosecutor improperly cross-examined a defense witness regarding whether he had been arrested and the grounds for those arrests (see People v Morrice, 61 AD3d 1390, 1391-1392 [2009]), that one instance of prosecutorial misconduct was not so egregious as to deprive defendant of a fair trial (see People v Szyzskowski, 89 AD3d 1501, 1503 [2011]). We reject defendant’s contention that the prosecutor engaged in misconduct during her summation inasmuch as the comments in question were fair response to the summation of defense counsel (see People v Rivers, 82 AD3d 1623, 1624 [2011], lv denied 17 NY3d 904 [2011]; People v Cunningham, 12 AD3d 1131, 1132 [2004], lv denied 4 NY3d 829 [2005] , lv denied on reconsideration 5 NY3d 761 [2005]). We reject defendant’s further contention that he was denied effective assistance of counsel based on the failure of defense counsel to object to the alleged instances of prosecutorial misconduct (see People v Tolliver, 93 AD3d 1150, 1151 [2012], lv denied 19 NY3d 968 [2012]; see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Finally, defendant contends that County Court failed to comply with CPL 270.35 in discharging a sworn juror, requiring reversal. Defendant, however, consented to the discharge of that juror and therefore has waived that contention (see People v Barner, 30 AD3d 1091, 1092 [2006], lv denied 7 NY3d 809 [2006] ; see also People v Davis, 83 AD3d 860, 861 [2011]). Present — Scudder, EJ., Centra, Garni, Sconiers and Martoche, JJ.