THE ALTERNATE JURORS WERE DISCHARGED JUST PRIOR TO THE LUNCH BREAK; A PROBLEM WITH A SITTING JUROR AROSE DURING THE BREAK AND THE JUROR WAS REMOVED; DELIBERATIONS HAD NOT YET BEGUN BUT THE ALTERNATE JURORS WERE NO LONGER AVAILABLE FOR SERVICE; THE JUDGE THEREFORE SHOULD NOT HAVE RECALLED ONE OF THE ALTERNATE JURORS; NEW TRIAL ORDERED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the appellate division and ordering a new trial, determined that once the alternate jurors were discharged they were not longer “available for service.” Therefore, the judge should not have seated one of the discharged alternate jurors after a trial juror was removed for alleged misconduct. The alternates were discharged just before the court broke for lunch. During the break, before deliberations had begun,  the problem with the sitting juror arose. The Court of Appeals noted that, had the judge waited to discharge the alternates until deliberations were about to begin, instead of before the lunch break, there would have been no need for a mistrial:

Prior to the start of deliberations in defendant’s trial, the court discharged the alternate jurors. A trial juror was subsequently challenged and ultimately removed for alleged misconduct, and the court recalled, questioned, and seated one of the discharged alternates. Seating of this discharged alternate juror was error. An alternate juror, once discharged, is no longer “available for service” as a replacement for a trial juror…. . * * *

… [W]hen the trial judge thanked the alternate jurors for their service and “excused [them] from this case,” the alternate jurors were discharged. At that point, the alternates “cease[d] to function” as jurors … and were no longer available for service under the statute. People v Murray, 2022 NY Slip Op 05916, CtApp 10-20-22

Practice Point: Once an alternate juror is discharged the alternate is no longer “available for service” and cannot be recalled even if deliberations have not yet begun.