On the fourth day of trial, the trial court discharged a juror, over defendant's objection, because she refused to appear for duty on Ash Wednesday, even though she expressed an interest in remaining as a juror, and agreed to resume her service on Thursday. An alternate juror was thereupon substituted, and the defendant was convicted as indicated above.
The brief period of unavailability resulting from the juror's religious observance was not a sufficient basis to deny defendant his constitutional right to be tried by a jury in whose selection he had a voice (People v. Page, 72 N.Y.2d 69, 73; People v Jackson, 149 A.D.2d 532), and did not constitute a disability resulting in incapacity or unavailability for continued service as contemplated by CPL 270.35 (People v. Rosa, 138 A.D.2d 753, 755, lv denied 72 N.Y.2d 866). Accordingly, on the facts in this case, the defendant's motion for a one-day adjournment should have been granted, and the juror should not have been discharged.
Concur — Murphy, P.J., Carro, Rosenberger, Wallach and Ross, JJ.