Bell v. Sherman (174 A.D.2d 738, 1991)

—Proceeding pursuant to CPLR artiele 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.