New York Supreme and/or Appellate Courts APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
July 15, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Marc J. Whiten, J.), rendered December 11, 2008, convicting him, after a jury trial, of resisting arrest and disorderly conduct, and imposing sentence.
People v Fisher (Kevin)
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on July 15, 2011
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
Judgment of conviction (Marc J. Whiten, J.), rendered December 11, 2008, reversed, on the law, accusatory instrument dismissed.
As the People concede, the brief period of absence resulting from a juror's religious observance did not constitute an "incapacity or unavailability" for his continued service within the meaning of Criminal Procedure Law § 270.35(2)(a) (see People v Jeanty, 94 NY2d 507, 513 ; People v Perez, 176 AD2d 592, 593 ; People v Jackson, 149 AD2d 532, 533 ). In this posture, the trial court improvidently exercised its discretion in discharging that juror and replacing him with an alternate juror (see People v Jeanty, 94 NY2d at 518).
Inasmuch as defendant has already served the sentence imposed for his conviction, we conclude that the accusatory instrument should be dismissed in its entirety (see People v Burwell, 53 NY2d 849, 851 ; People v Kvalheim, 17 NY2d 510, 511 ; People v Lei Song, 194 Misc 2d 716, 718 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 15, 2011
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