MIKEL v. MARK (1998)

 Petitioner commenced this CPLR article 78 proceeding seeking a writ of prohibition barring his retrial on the ground of double jeopardy.   He contends that Supreme Court erred in dismissing a sworn juror during deliberations and declaring a mistrial and thus that he cannot be retried.   We disagree.   Pursuant to CPL 270.35(1), if the court finds that a sworn juror is “grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature,” the court must discharge that juror and replace the juror with an alternate juror, if one is available.   If no alternate juror is available, the court must declare a mistrial (see, CPL 270.35[1];  280.10 [3] ).   The record establishes that a sworn juror was properly discharged because she failed to answer questions truthfully during voir dire and ignored the instructions of the court (see, People v. Robertson, 217 A.D.2d 989, 990, 630 N.Y.S.2d 438, lv. denied 86 N.Y.2d 846, 634 N.Y.S.2d 455, 658 N.E.2d 233;  People v. Cannady, 138 A.D.2d 616, 617, 526 N.Y.S.2d 202, lv. denied 71 N.Y.2d 1024, 530 N.Y.S.2d 559, 526 N.E.2d 51).   Because no alternate juror was available, the court was required to declare a mistrial.   Thus, petitioner's retrial is not barred by double jeopardy (see, Matter of Bell v. Sherman, 174 A.D.2d 738, 739, 571 N.Y.S.2d 572).

Petition unanimously dismissed without costs.

MEMORANDUM: