People v Echevarria

2006 NY Slip Op 04857

Decided on June 13, 2006

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 13, 2006
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
HOWARD MILLER, J.P.
ROBERT W. SCHMIDT
WILLIAM F. MASTRO
ROBERT J. LUNN, JJ.
2004-00531 DECISION & ORDER






Lynn W. L. Fahey, New York, N.Y. (David P. Greenberg of
counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove and Tziyonah M. Langsam of
counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered January 8, 2004, convicting him of criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and as a matter of discretion in the interest of justice, and a new trial is ordered.

Under the circumstances presented, the Supreme Court improvidently exercised its discretion in discharging a sworn juror (see CPL 270.35). The juror was merely scheduled for a future medical examination, but was not unavailable at the time of the discharge. Further, in this case, the juror's observance of the Jewish Sabbath did not render him unavailable for continued service (see CPL 270.35[1]; People v Page, 72 NY2d 69; People v Germain, 239 AD2d 601; People v Jackson, 149 AD2d 532; People v Thomas, 147 AD2d 598). Furthermore, the juror was not "grossly unqualified," where he stated during voir dire that he could be fair and impartial, and although the juror was anxious, there was no indication that he could not be fair and impartial (see People v Grace, 243 AD2d 579). Under these circumstances, the juror was improperly discharged and a new trial is required.
MILLER, J.P., SCHMIDT, MASTRO and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court