People v. Davis

274 A.D.2d 968, 711 N.Y.S.2d 925, 2000 N.Y. App. Div. LEXIS 7634

Opinion

—Judgment unanimously reversed on the law and new trial granted. Memorandum: After the jury commenced deliberations, an alternate juror replaced a juror who was unable to continue serving because of illness. Because defendant did not consent in writing to the replacement, reversal is required (see, GPL 270.35 [1]; People v Page, 88 NY2d 1, 3). We reject the People’s contention that defendant was required to preserve the error for our review by timely objecting to the replacement. Preservation is not required because the error is one that affects “ ‘the mode of proceedings prescribed by law’ ” (People v Ahmed, 66 NY2d 307, 310, rearg denied 67 NY2d 647, quoting People v Patterson, 39 NY2d 288, 295, affd 432 US 197).

We reject defendant’s contention that the evidence of intent is legally insufficient to support the conviction of assault in the first degree (Penal Law § 120.10 [1]). In view of our decision, we do not address defendant’s remaining contention. (Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J.— Assault, 1st Degree.) Present — Pigott, Jr., P. J., Green, Wisner and Hurlbutt, JJ.