E. Sabel, New York, NY (Ellen Dille of counsel), for
Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove,
Jean M. Joyce, and Andrew S. Durham of counsel), for
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, COLLEEN D.
DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (Mark Dwyer, J.), rendered February 3, 2015,
convicting him of assault in the first degree and criminal
possession of a weapon in the fourth degree, upon a jury
verdict, and imposing sentence.
that the judgment is reversed, on the law, and the matter is
remitted to the Supreme Court, Kings County, for a new trial.
defendant was charged with assault in the first degree,
assault in the second degree, assault in the third degree,
and criminal possession of a weapon in the fourth degree. The
case proceeded to a jury trial, and, after 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. Thereafter, the court imposed sentence.
The defendant appeals.
defendant has a constitutional right to a trial by a
particular jury chosen according to the law, in whose
selection the defendant has had a voice (see People v
Jeanty, 94 N.Y.2d 507, 517). The right to trial by jury
guarantee "embraces the decision whether to replace a
juror in certain aspects that are fundamental to the fair and
orderly administration of the fact-finding process"
(id.). "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 by reason of illness or other
incapacity, or for any other reason is unavailable for
continued service, ... the court must discharge such
juror" (CPL 270.35).
contrary to the Supreme Court's determination, the
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 (see People v
Thomas, 147 A.D.2d 598, 598; People v Rosa, 138
A.D.2d 753, 755). 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 (see People v
Thomas, 147 A.D.2d at 599; see also People v
Bunch, 278 A.D.2d 501, 502). Moreover, the People's
contention that Juror No. 10 may have been distracted over
her work conflict had she not been excused or may not have
appeared on the following Monday is pure speculation without
support in the record (see People v Page, 72 N.Y.2d
69, 74; see generally People v Jackson, 149 A.D.2d
the objectives of maintaining calendar control and otherwise
ensuring the efficient resolution of the court's business
are laudable goals, under the facts of this case, minor
scheduling difficulties, including any brief delay which may
have ensued had Juror No. 10's schedule been
accommodated, are not meaningful counterweights to the
defendant's constitutional right to trial by a jury in
whose selection he has participated (see People v
Jackson, 149 A.D.2d at 533; People v Rosa, 138
A.D.2d at 755).
since the defendant's statutory and constitutional rights
were violated when Juror No. 10 was excused and an alternate
juror was substituted, we reverse the judgment and remit the
matter to the Supreme Court, Kings County, for a new trial.
light of our determination, we need not reach the