Bell v. Sherman
In the Matter of Gary Bell v. Ralph Sherman
Opinion of the Court
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—Proceeding pursuant to CPLR arti *739 ele 78 to prohibit the respondents from proceeding further against the petitioner on Queens County Indictment Number QN12163/88.
Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.
A juror who has not heard all of the evidence in a case is grossly unqualified to render a verdict and must, therefore, be discharged (see, People v Russell, 112 AD2d 451, 452 ). Where, as here, the discharge of the juror makes it impossible to continue with the trial, principles of double jeopardy will not act to bar a retrial (CPL 270.35, 280.10). Further, we note that a defendant cannot consent to a trial by fewer than 12 jurors (see, Matter of Stressler v Hynes, 169 AD2d 750 ; NY Const, art I, § 2; art VI, § 18; Cancemi v People, 18 NY 128 ; People v Lester, 149 AD2d 975 ). Mangano, P. J., Thompson, Balletta and Rosenblatt, JJ., concur.
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