Bell v. Sherman — 174 A.D.2d 738

Majority

p. 738

In the Matter of Gary Bell, Petitioner, v Ralph Sherman et al., Respondents.

—Proceeding pursuant to CPLR arti

p. 739

ele 78 to prohibit the respondents from proceeding further against the petitioner on Queens County Indictment Number QN12163/88.

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

A juror who has not heard all of the evidence in a case is grossly unqualified to render a verdict and must, therefore, be discharged (see, People v Russell, 112 AD2d 451 , 452). Where, as here, the discharge of the juror makes it impossible to continue with the trial, principles of double jeopardy will not act to bar a retrial (CPL 270.35, 280.10). Further, we note that a defendant cannot consent to a trial by fewer than 12 jurors (see, Matter of Stressler v Hynes, 169 AD2d 750 ; NY Const, art I, § 2; art VI, § 18; Cancemi v People, 18 NY 128 ; People v Lester, 149 AD2d 975 ). Mangano, P. J., Thompson, Balletta and Rosenblatt, JJ., concur.

Cases cited

People v. Russell 112 AD2d 451 N.Y. App. Div. 1985-07-29 at 452 p. 739
Stressler v. Hynes 169 AD2d 750 N.Y. App. Div. 1991-01-17 p. 739
Cancemi v. People 18 NY 128 N.Y. p. 739
People v. Lester 149 AD2d 975 N.Y. App. Div. 1989-04-14 p. 739