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JUROR SHOULD NOT HAVE BEEN REPLACED WITH AN ALTERNATE; NO SHOWING JUROR WAS ‘UNAVAILABLE’ WITHIN THE MEANING OF CPL 270.35; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the trial judge should not have discharged a juror and replaced her with an alternate after the proof had closed and before summations. The juror was not “unavailable” within the meaning of Criminal Procedure Law (CPL) 270.35:

… [A]fter both sides had rested but before summations, the Supreme Court, over the defendant’s objection, excused juror No. 10 and replaced her with an alternate on the basis that juror No. 10 had to travel to Maryland for an evening work obligation the next day, which was a Friday. The day after the alternate was substituted, the jury found the defendant guilty of assault in the first degree and criminal possession of a weapon in the fourth degree. …

… [T]he defendant’s statutory and constitutional rights were violated when, over the defendant’s objection, the court excused Juror No. 10 and substituted an alternate juror. The record does not demonstrate that Juror No. 10 was unavailable as that term is used in CPL 270.35 … . Juror No. 10’s work obligation did not render her unavailable for jury service, as her own convenience or potential financial hardship are insufficient to render her unavailable under CPL 270.35 … . People v Alleyne, 2020 NY Slip Op 00154, Second Dept 1-8-20

 

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