Opinion
May 5, 1997
Application for a writ of error coram nobis.
Ordered that the application is granted, and the decision and order of this Court, dated June 24, 1991 is vacated; and it is further,
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The appellant correctly contends that the trial court committed reversible error in discharging a sworn juror during trial approximately one hour after that juror failed to appear. The court made no attempt to ascertain the location of the juror and did not conduct any inquiry into the reason for the juror's absence (see, CPL 270.35; People v. Page, 72 N.Y.2d 69; People v. Barker, 183 A.D.2d 835; People v. Rodriguez, 166 A.D.2d 618). This error is not subject to harmless error analysis (see, People v. Anderson, 70 N.Y.2d 729; People v. Polhill, 140 A.D.2d 462). Furthermore, contrary to the People's contention, this issue was adequately preserved for appellate review by the timely and specific objection of the appellant's trial counsel (see, People v. Barker, supra; People v. Battle, 167 A.D.2d 190). Accordingly, the appellant is entitled to a new trial.
Bracken, J. P., Ritter, Sullivan and Pizzuto, JJ., concur.