Summary
In People v Westbrook (177 A.D.2d 677), the Appellate Division, Second Department, reversed and remanded the matter for a new trial, where the Trial Justice discharged a juror about whom a number of jurors had complained as having emitted a foul body odor.
Summary of this case from People v. RadtkeOpinion
November 18, 1991
Appeal from the Supreme Court, Kings County (Broomer, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
The defendant maintains that the discharge of a sworn juror based on his purported misconduct was improper. We agree.
A number of jurors complained of another juror who emitted a foul body odor and was flatulent. The court found that the juror had thereby engaged in misconduct of a substantial nature as contemplated by CPL 270.35 and discharged the juror without having interviewed him. We hold that the trial court failed to conduct a sufficient inquiry before reaching its determination, as is required under these circumstances (see, People v. Page, 72 N.Y.2d 69; People v. Buford, 69 N.Y.2d 290), especially where, as here, defense counsel objected to the discharge and asked the court to interview the juror to determine the exact nature of the problem and whether it could be remedied without unduly delaying the trial.
In light of our determination on this issue, we need not reach the defendant's remaining contentions. Bracken, J.P., Sullivan, O'Brien and Ritter, JJ., concur.