Unsworn Juror Properly Dismissed Based Upon the “Two-Hour-Trial-Delay” Rule

The First Department determined the dismissal of a juror based on transportation problems which would delay the trial more than two hours was proper.  Apparently none of the jurors had been sworn at the time of the dismissal. Because the standards for dismissing a juror are higher for sworn, as opposed to unsworn, jurors, the fact that the juror was unsworn was of no consequence:

…[D]efendant had no objection to a delay in swearing the jurors after the completion of jury selection, and thus effectively “agreed to create a category of jurors, i.e., selected but unsworn jurors, about which the Criminal Procedure Law is silent as to criteria for discharge” … . The record reveals that the court merely used CPL 270.35 as a guideline in deciding whether to delay the trial by waiting for the juror. In any event, “[t]he power to excuse an unsworn juror is much broader than the statutorily limited power to discharge a sworn juror . . . .” … . Therefore, if the criteria set forth in CPL 270.35 for the dismissal of a sworn juror have been met, then, a fortiori, the same considerations would warrant dismissal of a selected but unsworn juror … .

“The Court of Appeals has held that the two-hour rule' gives the court broad discretion to discharge any juror whom it determines is not likely to appear within two hours” … . Using the two-hour rule as a guideline, it is clear that the court providently exercised its discretion in replacing the juror with an alternate … . People v Sanchez, 2014 NY Slip Op 09031, 1st Dept 12-30-14