Bell v. Sherman

174 A.D.2d 738, 571 N.Y.S.2d 572, 1991 N.Y. App. Div. LEXIS 9342

Opinion

—Proceeding pursuant to CPLR artiele 78 to prohibit the respondents from proceeding further against the petitioner on Queens County Indictment Number QN12163/88.

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

A juror who has not heard all of the evidence in a case is grossly unqualified to render a verdict and must, therefore, be discharged (see, People v Russell, 112 AD2d 451, 452). Where, as here, the discharge of the juror makes it impossible to continue with the trial, principles of double jeopardy will not act to bar a retrial (CPL 270.35, 280.10). Further, we note that a defendant cannot consent to a trial by fewer than 12 jurors (see, Matter of Stressler v Hynes, 169 AD2d 750; NY Const, art I, § 2; art VI, § 18; Cancemi v People, 18 NY 128; People v Lester, 149 AD2d 975). Mangano, P. J., Thompson, Balletta and Rosenblatt, JJ., concur.