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AFTER THE DISCHARGE OF A JUROR FOR MISCONDUCT, THE TRIAL COURT PROPERLY REPLACED THE JUROR WITH AN ALTERNATE WHO HAD BEEN EXCUSED AND SENT HOME; THERE WAS A DISSENT (FIRST DEPT).

The First Department, over a dissent, determined the trial court properly replaced a juror for misconduct with an alternate jury who had been excused and sent home:

The plain language of CPL 270.35 (1) states, in relevant part, that

“If at any time after the trial jury has been sworn and before the rendition of its verdict, a juror is unable to continue serving . . . the court must discharge such juror. If an alternate juror or jurors are available for service, the court must order that the discharged juror be replaced by the alternate juror whose name was first drawn and called, provided, however, that if the trial jury has begun its deliberations, the defendant must consent to such replacement.”

Thus, according to the plain language of CPL 270.35 (1), the trial court was required to decide if the alternate was “available for service,” and did not require the consent of defendant given that the jury had not begun its deliberations. People v Murray, 2020 NY Slip Op 08007, First Dept 12-29-30

 

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