People v. Guerrero — 221 A.D.2d 465

Majority

p. 465

The People of the State of New York, Respondent, v Carlos Guerrero, Appellant.

[634 NYS2d 125]

—Appeal by the defendant from a judgment of the Supreme Court, Queens

p. 466

County (Finnegan, J.), rendered October 20, 1992, convicting him of criminal sale of a controlled substance in the first degree, criminal sale of a controlled substance in the second degree, and criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

466

Ordered that the judgment is reversed, on the law, and a new trial is ordered.

The Supreme Court improvidently exercised its discretion in discharging a sworn juror without first conducting "a reasonably thorough inquiry and recitation on the record of the facts and reasons for invoking the statutory authorization of discharging and replacing [the] juror based on continued unavailability” (People v Page, 72 NY2d 69 , 73; CPL 270.35). The court’s failure to conduct the requisite inquiry constitutes error as a matter of law and is not subject to harmless error analysis (see, People v Davis, 178 AD2d 424 , 425). As such, reversal is mandated and the defendant is entitled to a new trial.

We further find that under the circumstances of this case, the defendant was not entitled to a Sandoval hearing (see, People v Sandoval, 34 NY2d 371 ).

The defendant’s remaining contentions are either unpreserved for appéllate review or without merit. Ritter, J. P., Pizzuto, Santucci and Krausman, JJ., concur.

Cases cited

People v. Page 72 NY2d 69 N.Y. 1988-07-07 at 73 p. 466
People v. Sandoval 34 NY2d 371 N.Y. 1974-06-19 p. 466