Opinion
570446/09.
Decided July 15, 2011.
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.
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
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; People v Perez, 176 AD2d 592, 593; People v Jackson, 149 AD2d 532, 533). 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; People v Kvalheim, 17 NY2d 510, 511; People v Lei Song, 194 Misc 2d 716, 718).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.