Opinion
June 24, 1991
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 A.D.2d 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 Crim. Proc.). Further, we note that a defendant cannot consent to a trial by fewer than 12 jurors (see, Matter of Stressler v Hynes, 169 A.D.2d 750; N Y Const, art I, § 2; art VI, § 18; Cancemi v People, 18 N.Y. 128; People v Lester, 149 A.D.2d 975). Mangano, P.J., Thompson, Balletta and Rosenblatt, JJ., concur.