On the evening of June 14, 1990, defendant Donald Lowe had been drinking ouzo (a powerful Greek liquor) and beer with his friends Calvin Johnson (Calvin), as well as William Owes and others, on the stoop in front of the building designated as 2352 Walton Avenue, Bronx, New York. At some point, Mr. Owes left the group and went upstairs into the apartment (the Apartment) he shared with Calvin; Calvin’s sister, Calvina Johnson; and Calvin’s father, Calvin Johnson, Sr. (Mr. Johnson).
At approximately 11:00 p.m. that same evening, Calvina was mopping the floor when she heard the doorbell ring quickly and repeatedly. Defendant thereafter entered the Apartment in a frantic, panicky and nervous state and told her and Mr. Owes that he had mistakenly or accidentally shot Calvin. At that time, defendant held a "big black gun”, a .357 Magnum revolver, which was approximately 8 to 10 inches long. Defendant exclaimed that he needed to hide the gun and he then attempted to place it in a closet.
Calvina went downstairs, accompanied by defendant, to check on her brother and saw Calvin sitting in a corner with his eyes closed. Calvina then went back into the Apartment to get a quarter in order to call an ambulance, and defendant ran around the corner, also to summon an ambulance. During this time, Mr. Johnson proceeded downstairs and saw his son sitting in front of the building with his legs stretched out in front of him. Calvin was not breathing and had no pulse, and Mr. Johnson stated that he observed powder burns on Calvin’s chest when he lifted his shirt.
Defendant flagged down New York City Police Officers *8Smith and Koellner, and informed the officers that he had gone upstairs to the Apartment to retrieve a cassette tape and, while he was returning to the stoop, he heard a loud noise. Defendant continued that when he exited the building, he discovered that his friend had been shot. Detective James Davey testified that he subsequently interviewed defendant in the 46th Precinct and was told essentially the same story that defendant told the other police officers.
Defendant was thereafter indicted for manslaughter in the second degree, criminally negligent homicide, criminal possession of a weapon in the second and third degrees, and criminal use of a firearm in the second degree.
At trial, defendant testified that Calvin was a "close friend” whom he had known for three or four years and with whom he played sports and video games and rode bicycles. Defendant averred that on the day in issue, he met Calvin at the Apartment between 2:30 p.m. and 3:00 p.m. and, after approximately one half hour, they went to visit defendant’s friend, David Gray, on the Upper West Side of Manhattan. Gray subsequently produced a sneaker box containing various handguns and, after some discussion, Gray gave decedent a long, black .357 Magnum and a handful of bullets. Defendant averred that Calvin placed the gun in his waistband and the bullets in his pocket after which time defendant and Calvin left Gray’s apartment and went to defendant’s apartment to pick up a cassette tape.
The two young men then took the subway to Calvin’s neighborhood, bought alcohol at a liquor store and went to decedent’s building where they encountered Mr. Owes and began drinking on the stoop. Defendant testified that after Mr. Owes went upstairs, Calvin began "fooling with” the gun and kept pulling it out of his waist area and holding it in front of him. Defendant maintained that he told Calvin to stop and to put the gun upstairs in the Apartment, after which admonishment Calvin retreated upstairs, only to return 10 or 20 minutes later to begin playing with the gun again.
Defendant asserted that he once more told Calvin to put the gun away and when he tried to stop decedent from pulling it out, it discharged at which time defendant allegedly grabbed the gun from under Calvin’s shirt and eased him to the ground. Defendant then ran upstairs holding the gun, purportedly because he did not want the police to find it on the decedent.
*9Defendant was convicted of the aforestated charges and now appeals his conviction based on various grounds. First, defendant contends that the conviction of criminally negligent homicide was legally insufficient based on the evidence presented and cites People v Montanez (41 NY2d 53) in support of his contention.
In Montanez, during a social gathering, two adult men, who had been friends for 20 years, were quietly conversing (two witnesses characterized the discussion as a disagreement) in a kitchen adjoining another room occupied by a small number of friends when a loud pop was heard followed by one of the men staggering out of the kitchen holding his neck with a bloody hand. The decedent, according to the accounts of two witnesses, stated " '[w]hat did you shoot me with?’ ” followed by defendant’s exclamations that he did not mean to do it, he " 'just wanted to show it to him.’ ” (Supra, at 55.) Defendant then got on his knees and began hugging the mortally wounded man and crying. One witness testified that defendant had a small revolver in his hand when he emerged from the kitchen and that he placed the weapon in his pocket prior to leaving the house. Defendant denied the account and conceded that although the gun may have been in his hand when it fired, it belonged to the decedent. Defendant testified that as he turned to leave the room, decedent said, " T got a nice piece to show you’ ” and that as he took the gun from decedent, it went off (supra, at 56).
The Montanez Court held that the evidence was insufficient to sustain the conviction for the crime charged and stated that even assuming that the weapon was in the defendant’s hand at the time of the shooting, there was insufficient proof to support the inference that the manner in which defendant handled the weapon, if negligent, rose to the level of a criminal act.
Penal Law § 125.10 provides, "A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.” "Criminal negligence”, with respect to a certain result, is defined in Penal Law § 15.05 (4) as the failure "to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
*10In People v Boutin (75 NY2d 692, 696), the Court of Appeals held that case law as well as the statutory language makes it abundantly clear that criminally negligent homicide "requires not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it”. The statute serves to provide an offense which is applicable to conduct considered socially undesirable (People v Haney, 30 NY2d 328, 334). The ultimate harm must be something which the defendant should, under the circumstances, have plainly "foreseen as being reasonably related to [his] acts” (People v Kibbe, 35 NY2d 407, 412; People v Galle, 77 NY2d 953, 955).
In the Montanez case, there was insufficient proof to support the elements of criminally negligent homicide pursuant to Penal Law § 125.10 where the evidence established that the defendant had failed to perceive a substantial and unjustifiable risk of death and there was no serious blameworthiness in his conduct which resulted in decedent’s death. The only evidence on point was defendant’s testimony that decedent showed him a pistol and that when he took the gun from decedent’s hand it accidentally went off. The factual situation in this case is clearly distinguishable.
In determining whether the evidence presented at trial supports a charge of criminally negligent homicide, the evidence must be viewed in the light most favorable to the People and it must be given the benefit of every reasonable inference to be drawn therefrom (People v Contes, 60 NY2d 620; People v Way, 59 NY2d 361; People v Kennedy, 47 NY2d 196, 203; People v Crespo, 198 AD2d 85, 86, lv denied 82 NY2d 923).
In the matter at bar, there is no dispute that beer, hard liquor and perhaps a small amount of marihuana were consumed by defendant and the decedent immediately prior to the shooting, and, while there is no toxicology report concerning defendant, decedent’s blood-alcohol level was .17%, which Dr. Pearle, a witness from the Medical Examiner’s Office, characterized at trial as rendering the decedent "intoxicated”. Further, evidence was submitted, by way of the testimony of Mr. Owes, that the gun he saw on the night of the shooting belonged to defendant and that defendant had shown him the gun within the past year. Mr. Owes testified that the gun in issue was a long-barrelled .357 Magnum, which statement was further buttressed by his testimony that he was familiar with that type of firearm and had fired one before in order to compare it to a .44 Magnum. The foregoing testimony of Mr. *11Owes must also be viewed in conjunction with the testimony of Mr. Johnson, an ex-Marine, who averred of his close relationship with his son and the fact that if Calvin had a handgun, he would have shown it to his father, as both father and son were gun enthusiasts.
Pursuant to the evidence presented in the present case, a jury could have reasonably found that the gun in issue was owned by defendant and that by placing the gun in decedent’s possession while he was in such an intoxicated state, defendant created a substantial and unjustifiable risk of death, thereby resulting in the blameworthy conduct which ultimately caused decedent’s death. The fact that defendant immediately took possession of the gun after the shooting and attempted to hide it and later discarded it could be viewed as further supporting his ownership of the weapon.
Defendant’s testimony was also somewhat at odds with the forensic evidence and raises an issue as to how decedent was shot. Dr. Pearle testified that "the bullet entered [decedent’s] right nipple and went toward his back * * * and slightly upward or slightly toward his heart.” This testimony contradicts defendant’s version of how the shooting occurred. Defendant stated that decedent was "fooling with the gun” by pulling it out of his waistband and holding it out in front of him. Defendant testified that Calvin again began to pull the gun out of his waistband and defendant "just did like this [later described for the record as sticking his left arm out to the side at waist level] like stop and it went off pow * * * then I grabbed him and * * * let him down slowly and I had grabbed the gun from under his shirt and I ran up the stairs”. Defendant further testified that when the shot went off the gun was still "stuck in his shirt.”
If, in fact, the decedent was again beginning to pull the gun out of his waistband, it is unclear why or how the bullet took an upward track which entered in the upper region of the torso. Since the bullet’s entry into decedent’s chest was slightly upward toward his back, the pistol would have had to be pointed at decedent at the time of its discharge. This would not be consistent with defendant’s testimony that the gun had discharged while decedent was removing it from his waistband or that the gun was still "stuck in his shirt” when it went off.
Lastly, defendant testified, as did Mr. Owes and Cal vina Johnson (defendant said "I made a mistake and shot Cal”), that upon entering the Apartment, defendant exclaimed that *12he (albeit mistakenly or accidentally) had shot Calvin. This occurred while defendant, indisputably in possession of the gun, tried to hide it before the police arrived. The gun was eventually discarded and, apparently, never found.
In summary, defendant and decedent were consuming copious amounts of alcoholic beverages when, while "fooling” with a loaded handgun which testimony indicated belonged to defendant, Calvin was fatally shot. Whether or not the shot was intentional, the fact that sufficient evidence was presented to convince a jury that defendant owned the gun, coupled with the fact that decedent and defendant were both drinking alcohol while grabbing and possibly wrestling over a loaded firearm, indicates blameworthiness (People v Boutin, supra). Such conduct can clearly be characterized socially undesirable and of a class which the statute seeks to proscribe (People v Haney, supra). I disagree with the majority and find that the charge of criminally negligent homicide should not be dismissed.
I do agree with the majority, however, that the trial court improperly discharged and replaced a sick juror who was expected to return on the next trial day.
During the course of this brief trial, opening statements and initial testimony took place on Monday, December 9, 1991. On Tuesday, no trial session was held as it was the court’s calendar day and on Wednesday, there was no trial session due to a juror’s illness. As a result of the juror’s illness, the court adjourned the case to Thursday. On Thursday, December 12th, the People completed their case and the court announced its intention to have the defense present its case beginning Friday morning to be followed by the summaries and jury charge on Monday.
On Friday, December 13th, however, a different juror called the IAS Part clerk and explained that he was sick and could not be present "today”. The court immediately substituted an alternate for the sick juror, to which the defense objected, arguing that there was nothing left but the defendant’s testimony and that the absent juror could be expected to return for the next trial date. The court thereafter ruled:
"Let the record reflect that I’ve thought about what you’ve had to say and I’ve thought about the previous juror and I recognize this is a week before holiday weekend.
"I don’t want to start a dangerous precedent and I think it time I nip this thing in the bud right now. I’m going to substitute a juror and put in alternate number one.”
*13As a result, the defendant testified on Friday, the jury was given the case on Monday and a verdict was reached on Wednesday convicting defendant of criminally negligent homicide and criminal possession of a weapon in the third degree.
In People v Page (72 NY2d 69, 73), the Court of Appeals held that:
"The statute here—in requiring the discharge of a juror who is unavailable for continued service by reason of illness or other incapacity, or for any other reason’ (CPL 270.35 [emphasis added])—invests a trial court with latitude to make a balanced determination affecting the administration of justice based on the facts required to be adduced, recognizing that criminal proceedings should not be unnecessarily or unfairly delayed against the interests of either the defense or the prosecution * * *.
"No inflexible rule or catechism was contemplated or need be judicially crafted to determine the precise parameters of when a juror is unavailable under this statutory prescription. Rather, illustrative factors that may be considered in making such determinations include the stage of trial, the expected length of the absence of the juror if known, whether the juror’s return is ascertainable and reasonably imminent and certain, whether reasonable attempts have been made to locate the absent juror, and other relevant circumstances such as the continued availability of key witnesses. A trial court’s decision dismissing a juror must safeguard the important right of a defendant to be tried by jurors in whose selection the defendant has had a voice. It thus necessitates a reasonably thorough inquiry and recitation on the record of the facts and reasons for invoking the statutory authorization of discharging and replacing a juror based on continued unavailability.” (Emphasis added; see also, People v Brown, 194 AD2d 443, in which this Court held that the trial court’s failure to conduct a " 'reasonably thorough inquiry’ ” into when and whether an ill juror would be able to continue was reversible error; People v Hines, 191 AD2d 274, lv denied 81 NY2d 1074, in which this Court held, inter alia, that the trial court should have inquired as to the degree of unavailability of a juror experiencing financial difficulties; People v Rodriguez, 185 AD2d 198, in which this Court held that the decision to discharge a juror must be supported on the record by the reasons or facts for such discharge; People v Powell, 179 AD2d 599, affd 80 NY2d 852, in which this Court reversed defen*14dant’s conviction because the court failed to inquire as to the juror’s availability to attend trial the next day; People v Dunn, 169 AD2d 394, in which this Court reversed defendant’s conviction and ordered a new trial because the court failed to ascertain the details of the juror’s incapacity or make a record of its efforts and the results; People v Olaskowitz, 162 AD2d 322, lv withdrawn 76 NY2d 1023, in which this Court ordered a new trial because the trial court made no discernible inquiry and hastily replaced a juror simply because the juror advised the clerk that he or she was sick that day.)
In the matter before us, the trial court apparently failed to conduct any inquiry, thorough or otherwise, to ascertain the expected length of the juror’s absence or the nature thereof. Rather, the trial court seemed intent on avoiding a short delay (one day) and, had the court waited until Monday, the defendant’s testimony as well as the summations and jury charge could either have been squeezed in one day or, at the very least, the case could have been given to the jury on Tuesday instead. The court’s reference to the holidays is misplaced as the holiday break was not scheduled to start until the following Monday, a full week after the day scheduled for the summations and charge. Instead, the court’s primary concern appeared to be to use the substitution of the alternate to avoid a brief interruption of the trial, which without other prejudicial factors, cannot outweigh defendant’s right to be tried by the jury selected originally.
It is also important to note, and beyond dispute, that the trial was near conclusion at the time the juror called in sick which, in the words of the eminent Justice Kupferman of this Court, should have "counseled patience” (People v Galletta, 171 AD2d 178, 180, lv denied 79 NY2d 947). Such was not shown herein. Since the defendant was denied his right to a trial by the jury as selected by the People and the defendant (see, People v Page, supra, at 73), the conviction must be reversed and the matter remanded for a new trial.
Finally, I agree that the trial court properly denied defendant’s request for a jury charge that he temporarily lawfully possessed the handgun. While such a theory excuses a defendant from criminal liability for the possession of a weapon he had "wrested” away from another, in the matter at bar it is undisputed that defendant retained possession of the weapon after the shooting, took it to another location, tried to hide it, and eventually discarded it. By retaining possession of the *15weapon in the foregoing manner, which was "at odds with any claim of innocent possession” (People v Williams, 50 NY2d 1043, 1045), the defendant’s right to a temporary lawful possession charge was defeated (People v Banks, 76 NY2d 799; People v Snyder, 73 NY2d 900).
Murphy, P. J., Rosenberger and Nardelli, JJ., concur with Sullivan, J.; Tom, J., dissents in a separate opinion.
Judgment, Supreme Court, Bronx County, rendered January 9, 1992, reversed, on the law, the count charging criminally negligent homicide dismissed and the matter remanded for a new trial on the remaining count.