PEOPLE v. DUNN

Defendant was convicted of robbing a person around 6:00 A.M. on June 4, 1988 near a subway turnstile at the IRT 125th Street and Lexington Avenue Station in Manhattan. Defendant was aided by other persons, one of whom testified against him at trial.

On a day when the trial was to begin and prior to the opening statements, the wife of a juror called and reported that he was ill and would not attend. Over the objection of the defense attorney, an alternate juror was seated.

CPL 270.35 authorizes a court to excuse a juror who cannot continue because of illness or other incapacity. It is now well settled that prior to excusing a juror, the court must make a reasonable effort to find out the details of the incapacity and to determine if and when the juror can be available. The court must also make a record of its efforts and the results. (People v Olaskowitz, 162 A.D.2d 322; People v Page, 72 N.Y.2d 69.)

In this case the record does not reflect that any effort was made to determine the exact nature of the juror's illness and probable length of unavailability.

Concur — Sullivan, J.P., Ross, Asch, Kassal and Smith, JJ.