PEOPLE v. GUERRERO

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 N.Y.2d 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 A.D.2d 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 N.Y.2d 371).

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