People v. Holston

Appellate Division of the Supreme Court of New York

People v. Holston

194 A.D.2d 689, 599 N.Y.S.2d 1005, 1993 N.Y. App. Div. LEXIS 6108

Appellate Division of the Supreme Court of the State of New York·Decided June 14, 1993·Published·Cited by 1 cases

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Linakis, J.), rendered May 20, 1991, 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 a new trial is ordered. No questions of fact have been raised or considered.

We agree with the defendant’s contention that the trial court improvidently discharged a sworn juror without first conducting "a reasonably thorough inquiry and recitation on the record of the facts and reasons for invoking the statutory authorization of discharging and replacing [the] juror based on continued unavailability” (People v Page, 72 NY2d 69, 73; see, CPL 270.35; see, People v Davis, 178 AD2d 424, 425). Therefore, the defendant’s judgment of conviction must be reversed and a new trial ordered (People v Taylor, 154 AD2d 634, 635; [690]*690affd 76 NY2d 873). Miller, J. P., Ritter, Copertino and Pizzuto, JJ., concur.

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—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Linakis, J.), rendered May 20, 1991, 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 a new trial is ordered. No questions of fact have been raised or considered.

We agree with the defendant’s contention that the trial court improvidently discharged a sworn juror without first conducting "a reasonably thorough inquiry and recitation on the record of the facts and reasons for invoking the statutory authorization of discharging and replacing [the] juror based on continued unavailability” (People v Page, 72 NY2d 69, 73; see, CPL 270.35; see, People v Davis, 178 AD2d 424, 425). Therefore, the defendant’s judgment of conviction must be reversed and a new trial ordered (People v Taylor, 154 AD2d 634, 635; [690]*690affd 76 NY2d 873). Miller, J. P., Ritter, Copertino and Pizzuto, JJ., concur.

People v. Holston, 194 A.D.2d 689, 599 N.Y.S.2d 1005, 1993 N.Y. App. Div. LEXIS 6108 (N.Y. Ct. App. 1993).

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