Doerr and Davis, JJ. (dissenting). We respectfully dissent. In our view, defendant’s constitutional and statutory rights to a jury trial were violated when the court dismissed a sworn juror without defendant’s consent. CPL 270.15 (3) provides that, although jury selection has not yet been completed, a sworn juror may be dismissed only if she becomes unable to serve "by reason of illness or other incapacity” (see, People v Wilson, 106 AD2d 146). Here, a sworn juror indicated to the court that she had a "problem” with cigarette smoke in the jury room. She indicated that she "cannot breathe when there is smoke around”. She stated further that "if they’re going to smoke during deliberations, I should be excused.” Based only upon these statements, the court dismissed this sworn juror.
In our view, these statements are insufficient to support the conclusion that this sworn juror had become unable to serve "by reason of illness or other incapacity” (CPL 270.15 [3]), particularly in this case, when immediately following the dismissal of this sworn juror, the court informed the jury panel that smoking was not allowed in the jury room. Further, the conclusion reached by the majority, that this juror was allergic to cigarette smoke, has no support in the record. (Appeal from judgment of Supreme Court, Monroe County, Bergin, J.—robbery, second degree.) Present—Dillon, P. J., Doerr, Boomer, Davis and Lowery, JJ.