Opinion
June 13, 1977
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 26, 1974, convicting him of robbery in the third degree and petit larceny, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and, as a matter of discretion in the interest of justice, indictment dismissed. In our opinion the substitution (without appellant's consent and over his objection) of an alternate juror after deliberations had commenced was prejudicial error (see People v Ryan, 19 N.Y.2d 100). The subject theft involved the taking of $24 worth of meat from a supermarket. Appellant did not personally commit any act of violence. He has served his sentence. Under the circumstances, a dismissal of the indictment, rather than a new trial, is appropriate (see People v Kvalheim, 17 N.Y.2d 510; cf. People v Allen, 39 N.Y.2d 916). Martuscello, J.P., Latham, Margett and O'Connor, JJ., concur.