N.Y. Laws » CHAPTER Criminal Procedure / PART The Principal Proceedings / TITLE Prosecution of Indictments In Superior Courts--plea to Sentence / ARTICLE Jury Trial--formation and Conduct of Jury
New York Consolidated Laws

N.Y. Criminal Procedure Law § 270.35 (2026)

Trial jury; discharge of juror; replacement by alternate juror

✓ current as of May 2026
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§ 270.35 Trial jury; discharge of juror; replacement by alternate juror.
  1. If at any time after the trial jury has been sworn and before the
rendition of its verdict, a juror is unable to continue serving by
reason of illness or other incapacity, or for any other reason is
unavailable for continued service, or the court finds, from facts
unknown at the time of the selection of the jury, that a juror is
grossly unqualified to serve in the case or has engaged in misconduct of
a substantial nature, but not warranting the declaration of a mistrial,
the court must discharge such juror. If an alternate juror or jurors are
available for service, the court must order that the discharged juror be
replaced by the alternate juror whose name was first drawn and called,
provided, however, that if the trial jury has begun its deliberations,
the defendant must consent to such replacement. Such consent must be in
writing and must be signed by the defendant in person in open court in
the presence of the court. If the discharged juror was the foreperson,
the court shall designate as the new foreperson the juror whose name was
second drawn and called. If no alternate juror is available, the court
must declare a mistrial pursuant to subdivision three of section 280.10.
  2. (a) In determining pursuant to this section whether a juror is
unable to continue serving by reason of illness or other incapacity, or
is for any other reason unavailable for continued service, the court
shall make a reasonably thorough inquiry concerning such illness,
incapacity or unavailability, and shall attempt to ascertain when such
juror will be appearing in court. If such juror fails to appear, or if
the court determines that there is no reasonable likelihood such juror
will be appearing, in court within two hours of the time set by the
court for the trial to resume, the court may presume such juror is
unavailable for continued service and may discharge such juror. Nothing
contained in this paragraph shall affect the court's discretion, under
this or any other provision of law, to discharge a juror who repeatedly
fails to appear in court in a timely fashion.
  (b) The court shall afford the parties an opportunity to be heard
before discharging a juror. If the court discharges a juror pursuant to
this subdivision, it shall place on the record the facts and reasons for
its determination that such juror is ill, incapacitated or unavailable
for continued service.
  (c) Nothing contained in this subdivision shall affect the
requirements of subdivision one of this section pertaining to the
discharge of a juror where the trial jury has begun its deliberations.
Notes of Decisions
Cited in 8 cases, 2004–2018 · leading case: People v. Kuzdzal, 31 N.Y.3d 478 (NY 2018).
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People v. Kuzdzal, 31 N.Y.3d 478 (NY 2018). “This appeal involves allegations that empaneled jurors made disparaging remarks and acted in a manner that suggested they were "grossly unqualified" to continue serving on defendant Matthew Kuzdzal's jury, and the trial court should thus have made an inquiry of the jurors to…”
The People v. Benny Garay, 30 N.E.3d 145 (NY 2015). “Criminal Procedure Law § 270.35 (2) (b) states that “[t]he court shall afford the parties an opportunity to be heard before discharging a juror.”
Linnen v. Poole, 766 F. Supp. 2d 427 (W.D.N.Y. 2011). “It is also utterly frivolous: the record shows that, upon learning that the sworn juror in question had been struck by a car, the trial court first adjourned the case for a day; the following day, the law secretary reported to the court that the juror had telephoned to confirm…”
Khan v. Fischer, 583 F. Supp. 2d 390 (E.D.N.Y 2008). “Petitioner claims that the trial court improperly delegated to its law secretary its duty to make the “reasonably thorough inquiry” required by New York’s Criminal Procedure Law § 270.35 before discharging a juror no longer able to serve because of illness.”
Linnen v. Poole, 689 F. Supp. 2d 501 (W.D.N.Y. 2010). “2008) (“Petitioner claims that the trial court improperly delegated to its law secretary its duty to make the “reasonably thorough inquiry” required by New York’s Criminal Procedure Law § 270.35 before discharging a juror no longer able to serve because of illness.”
Xi Yu v. New York Univ. Med. Ctr., 4 Misc. 3d 602 (N.Y. Sup. Ct. 2004). “Criminal Procedure Law § 270.35 (1) specifically addresses the methodology of replacing a discharged juror with an alternate, stating, “If an alternate juror or jurors are available for service, the court must order that the discharged juror be replaced by the alternate juror…”
People v. Neulander, 2018 NY Slip Op 4925 (N.Y. App. Div. 2018). “Criminal Procedure Law § 270.35 (1) applies only to conduct occurring "before the rendition of [the] verdict.”
Xi Yu v. New York Univ. Med. Ctr., 2004 NY Slip Op 24223 (N.Y. Sup. Queens 2004). “Criminal Procedure Law § 270.35 (1) specifically addresses the methodology of replacing a discharged juror with an alternate, stating, "If an alternate juror or jurors are available for service, the court must order that the discharged juror be replaced by the alternate juror…”
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