Opinion
June 22, 1993
Appeal from the Supreme Court, Bronx County, Frank Torres, J.
On the beginning of the third day of the trial, a Thursday morning, the trial court announced receipt of a written telephone message (its actual source was never ascertained) that a sitting juror had "called in ill". Over explicit objection by defendants on the ground that the next court session was not scheduled until the following Tuesday, a hiatus which might enable the "ill" juror to continue, the court nevertheless discharged the absent juror without further inquiry and seated the first alternate in her place. Since the "reasonably thorough inquiry" mandated by People v. Page ( 72 N.Y.2d 69, 73) never took place, reversal of these convictions and a new trial are required (People v Celestin, 150 A.D.2d 385).
We also hold that on the retrial of this rape prosecution where the sexual congress was admitted by defendants and the sole defense was the alleged consent of the then-13-year-old victim, an issue complicated by her possible intoxication, evidence with respect to her subsequent abortion and detailed expert testimony on the mechanics of human reproduction should be excluded. This testimony was irrelevant to any issue on the trial, and we conclude that it was introduced only to arouse the emotions of the jury and to prejudice the defendants (People v. Blake, 139 A.D.2d 110). While evidence as to the victim's pregnancy is arguably relevant, the court must weigh its probative value against its prejudicial impact, and the failure to do so here was error (People v. Monaco, 57 N.Y.2d 645).
Concur — Murphy, P.J., Sullivan, Wallach, Ross and Kassal, JJ.