People v Fisher (Kevin)

[*1] People v Fisher (Kevin) 2011 NY Slip Op 51335(U) Decided on July 15, 2011 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 15, 2011
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570446/09.

The People of the State of New York, Respondent, - -

against

Kevin Fisher, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Marc J. Whiten, J.), rendered December 11, 2008, convicting him, after a jury trial, of resisting arrest and disorderly conduct, and imposing sentence.

 

Per Curiam.

Judgment of conviction (Marc J. Whiten, J.), rendered December 11, 2008, reversed, on the law, accusatory instrument dismissed.

As the People concede, the brief period of absence resulting from a juror's religious observance did not constitute an "incapacity or unavailability" for his continued service within the meaning of Criminal Procedure Law § 270.35(2)(a) (see People v Jeanty, 94 NY2d 507, 513 [2000]; People v Perez, 176 AD2d 592, 593 [1991]; People v Jackson, 149 AD2d 532, 533 [1989]). In this posture, the trial court improvidently exercised its discretion in discharging that juror and replacing him with an alternate juror (see People v Jeanty, 94 NY2d at 518).

Inasmuch as defendant has already served the sentence imposed for his conviction, we conclude that the accusatory instrument should be dismissed in its entirety (see People v Burwell, 53 NY2d 849, 851 [1981]; People v Kvalheim, 17 NY2d 510, 511 [1966]; People v Lei Song, 194 Misc 2d 716, 718 [2003]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 15, 2011