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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DERRICK HASTINGS, Appellant.

The court's inquiry into the circumstances surrounding the juror's absence warranted the finding that the juror was no longer available for continued service and should be replaced pursuant to CPL 270.35 (see, People v Page, 72 N.Y.2d 69). Although the jury was told to be in court by 9:45 A.M. and to call if they were going to be late, the court, having received no phone call from the juror, waited until 11:30 before acting to replace her, and then only after two phone calls to her home made by court officers were not successful in reaching her. That the absent juror had complained of chest pains during the last court session the previous Friday, at which time the trial could not proceed because defendant, without notice was absent for religious reasons, that there were no proceedings conducted the previous Thursday, that being the court's conference day, and that the jury had at this point heard only one day of testimony in a trial that was expected to last only two days, provided additional reasons for the court replacing the juror when it did, including its concern for the convenience of the People's final witness.

Concur — Carro, J.P., Wallach, Asch and Rubin, JJ.

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PEOPLE v. HASTINGS
(Apr 23, 1993)