Can a juror be discharged from the jury for failing to attend a trial on the grounds of unavailability?

There is no suggestion that that discharge could have been supported upon the ground of gross misconduct and it is manifest that the juror was not grossly unqualified-there is absolutely no indication that he was biased or incapable of rendering an impartial verdict. Nor does the record disclose any ground to suppose that he was "unavailable for continued service." It is true, of course, that he preferred not to remain on the jury. But that is a preference doubtless shared by very many jurors-it cannot support an inference of unavailability unless the statute is to be read to require the wholesale discharge of sworn jurors ( see People v. Michael, 48 N.Y.2d 1, 10, 420 N.Y.S.2d 371, 394 N.E.2d 1134 [1979] ). Similarly inadequate to support an inference of unavailability was the circumstance that this juror would perhaps have been forced during the trial to choose between his employment and his civic obligations. Jurors routinely have this choice forced upon them and in making it suffer some economic loss and even some measure of hardship, but again, this cannot be deemed tantamount to unavailability pursuant to CPL 270.35; once a finding of unavailability is made, the court must under the statute discharge the juror and the practical result of mandated discharges based on such a common incident of jury service, would be the utter decimation of the jury pool. This juror was not by reason of his nighttime employment

[941 N.E.2d 743, 915 N.Y.S.2d 900]

any more unavailable than a juror employed during the day. Indeed, the court's conclusion as to his unavailability appears to have been paradoxically premised upon the circumstance that the juror had an option ordinarily foreclosed to jurors with day jobs, i.e., temporarily discharging both his jury and employment duties. Manifestly the prospect that the juror might elect to do both did not render him unavailable. The expectation of the court should have been that this juror, like any other ordinarily employed person called to serve on a jury and selected for that purpose without mention of any hardship that such service would entail,

[15 N.Y.3d 933]

would make the adjustments temporarily required to facilitate the discharge of his civic duty. This is particularly so since, as defendant's counsel noted, the trial was not expected to be lengthy.

[941 N.E.2d 743, 915 N.Y.S.2d 900]

[15 N.Y.3d 933]