Opinion
July 12, 1990
Appeal from the Supreme Court, Bronx County (William H. Wallace, III, J.).
The defendant and a codefendant, John Washington, were tried together on charges of robbery, burglary and related crimes. After the evidence was heard, but before summations, the trial court replaced one of the jurors, who had failed to report because she had to attend a funeral. This substitution was done without contacting the juror to ascertain her whereabouts and availability. The substitution was made over the objection of both defendant's and codefendant's counsel.
In People v. Washington ( 75 N.Y.2d 740), the Court of Appeals reversed Washington's conviction for the reasons stated in the dissenting opinion of Justice John Carro ( 151 A.D.2d 384, 385) and ordered a new trial. This decision was based on the trial court's failure to adhere to the proper procedures for discharging a juror. (See, CPL 270.35; People v. Page, 72 N.Y.2d 69, 73.) As the People concede, People v. Washington is dispositive of the same issue raised by the defendant in this appeal, and thus the judgment of conviction must be vacated, and the case remanded for a new trial.
As to defendant's plea of guilty to violation of probation, it appears she has already served the sentence imposed thereon. However, since such charge was based upon her failure to report and her arrest, indictment and conviction, which is being reversed, in the event defendant is acquitted on her retrial, she should be permitted, if so advised, to withdraw such guilty plea.
Concur — Kupferman, J.P., Milonas, Ellerin, Wallach and Rubin, JJ.