People v. Celestin
| Citation | 150 A.D.2d 385,540 N.Y.S.2d 825 |
| Parties | The PEOPLE, etc., Respondent, v. Jean CELESTIN, Appellant. |
| Decision Date | 01 May 1989 |
| Court | New York Supreme Court — Appellate Division |
David L. Lewis, New York City, for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Anthea H. Bruffee and Seth M. Lieberman, of counsel), for respondent.
Before THOMPSON, J.P., and BRACKEN, BROWN and HARWOOD, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Owens, J.), rendered July 13, 1983, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and determined to have been established.
Although the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt, reversal of the judgment is required because the court discharged a juror without first causing an inquiry to be made to determine whether the juror was unavailable for continued service (see, CPL 270.35). The record reveals that jury selection had been completed on Friday, June 10, 1983, when a juror informed the court that she wanted to attend the funeral of her friend's mother, at 10:00 A.M. on the following Monday. She estimated that the funeral would last about an hour. The court agreed to let her go to the funeral and directed her to return to court by 12:00 Noon on Monday. The juror agreed. Thereafter, the trial proceeded and after the completion of the testimony of the first witness, the trial was recessed to Monday at 12:00 Noon. On Monday, the juror failed to appear at the appointed hour. At 12:15, P.M., after having waited 15 minutes, the court ruled, over defense counsel's objection, that the juror would be discharged and replaced with an alternate. The defendant contends that he was thereby deprived of his right to a jury of his choice. We agree.
In order to safeguard a defendant's right to be tried by a jury in whose selection he has had a voice, the court, prior to replacing a trial juror who may be unavailable for continued service, must make (People v. Page, 72 N.Y.2d 69, 73, 531 N.Y.S.2d 83, 526 N.E.2d 783). At bar, the trial court did not make any inquiry or findings before replacing the juror, and relied instead on speculation, based on the previous Friday's colloquy, that the juror had attended the...
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