Opinion
March 11, 1994
Appeal from the Monroe County Court, Egan, J.
Present — Denman, P.J., Green, Lawton, Callahan and Doerr, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted, after a jury trial, of manslaughter in the first degree (Penal Law § 125.20) for stabbing a young woman in the back with a knife, causing her death. The stabbing occurred following an altercation between two groups of young people in a shopping plaza parking lot. Defendant admitted to the police that she had stabbed a girl with a knife, although she believed that she had stabbed her in the leg.
We reject the contention of defendant that she was deprived of her right to be present at all material stages of trial when County Court polled the jury in her absence. The record establishes that defendant was present when the jury announced its verdict. Thus, there was no violation of the statutory requirements of CPL 310.40 (1) (see, People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 257, mot to amend remittitur granted 13 N.Y.2d 1178, cert denied 376 U.S. 958; People v. Williams, 186 A.D.2d 161, 163). Defendant was removed from the courtroom when she became hysterical after the verdict was rendered and the jury returned to the jury room. At that time, defendant's attorney requested that the jury be reassembled and polled. Defendant's attorney waived defendant's presence, and the jury was brought back and polled. Although due process requires that a defendant be present "whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge" (Snyder v. Massachusetts, 291 U.S. 97, 105-106), under the unusual circumstances of this case, we conclude that the court did not err in polling the jury in defendant's absence (see, People v Ciaccio, 47 N.Y.2d 431, 436; People v. Webb, 134 A.D.2d 303, lv denied 70 N.Y.2d 939).
There is no merit to the contention of defendant that the court erred by allowing a member of the venire who had been peremptorily excluded to be seated as an alternate juror. That juror had been excluded by the prosecutor and all parties consented to her being seated as an alternate. Although we agree that such a practice is unusual, any claim of error has been waived because defendant consented to it.