§ 270.35 — Trial jury; discharge of juror; replacement by alternate juror

New York § 270.35

• Jurisdiction: New York
• Law CPL: Criminal Procedure
• Title J: Prosecution of Indictments In Superior Courts--plea to Sentence
• Part 2: The Principal Proceedings
• Art. 270: Jury Trial--formation and Conduct of Jury

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§ 270.35 Trial jury; discharge of juror; replacement by alternate juror.\n 1. If at any time after the trial jury has been sworn and before the\nrendition of its verdict, a juror is unable to continue serving by\nreason of illness or other incapacity, or for any other reason is\nunavailable for continued service, or the court finds, from facts\nunknown at the time of the selection of the jury, that a juror is\ngrossly unqualified to serve in the case or has engaged in misconduct of\na substantial nature, but not warranting the declaration of a mistrial,\nthe court must discharge such juror. If an alternate juror or jurors are\navailable for service, the court must order that the discharged juror be\nreplaced by the alternate juror whose name was first drawn and called,\nprovided, however, that if the trial jury has begun its deliberations,\nthe defendant must consent to such replacement. Such consent must be in\nwriting and must be signed by the defendant in person in open court in\nthe presence of the court. If the discharged juror was the foreperson,\nthe court shall designate as the new foreperson the juror whose name was\nsecond drawn and called. If no alternate juror is available, the court\nmust declare a mistrial pursuant to subdivision three of section 280.10.\n 2. (a) In determining pursuant to this section whether a juror is\nunable to continue serving by reason of illness or other incapacity, or\nis for any other reason unavailable for continued service, the court\nshall make a reasonably thorough inquiry concerning such illness,\nincapacity or unavailability, and shall attempt to ascertain when such\njuror will be appearing in court. If such juror fails to appear, or if\nthe court determines that there is no reasonable likelihood such juror\nwill be appearing, in court within two hours of the time set by the\ncourt for the trial to resume, the court may presume such juror is\nunavailable for continued service and may discharge such juror. Nothing\ncontained in this paragraph shall affect the court's discretion, under\nthis or any other provision of law, to discharge a juror who repeatedly\nfails to appear in court in a timely fashion.\n (b) The court shall afford the parties an opportunity to be heard\nbefore discharging a juror. If the court discharges a juror pursuant to\nthis subdivision, it shall place on the record the facts and reasons for\nits determination that such juror is ill, incapacitated or unavailable\nfor continued service.\n (c) Nothing contained in this subdivision shall affect the\nrequirements of subdivision one of this section pertaining to the\ndischarge of a juror where the trial jury has begun its deliberations.\n