(dissenting in part). Rather than remanding for a new trial, I would remand for a reconstruction hearing to determine whether the sidebar with prospective juror S.D. was conducted in such a manner as to permit defendant, seated only eight feet away, to see and hear the colloquy (see People v Brown, 221 AD2d 160 [1995], lv denied 87 NY2d 898 [1995]; see also People v Torres, 224 AD2d 251 [1996], lv denied 88 NY2d 886 [1996] [defendant was in close proximity to sidebar, and therefore able to see and hear]; People v Swift, 213 AD2d 355 [1995], lv denied 86 NY2d 784 [1995] [defendant’s position at defense table did not prevent him from hearing sidebar conference] ; compare People v Rodriguez, 20 AD3d 355, 357 [2005] [speculative that defendant, seated 12 feet away, could hear]). Indeed, in People v Davidson (210 AD2d 76 [1994]), we remanded for a reconstruction hearing to determine “the extent to which defendant actually saw and heard sidebar voir dire.” It was only after a reconstruction hearing was conducted that a determination could be made that the defendant, who was seated 10 feet away, could not hear a sidebar conference (see 224 AD2d 354, 355 [1996], affd 89 NY2d 881 [1996]).
A reconstruction hearing would not be necessary with respect to prospective jurors M.C. and Y.T., because their excusáis were in the nature of an uncontested excusal for cause (see People v Garcia, 265 AD2d 171 [1999], lv denied 94 NY2d 862 [1999]).
Mazzarelli, J.P., and Andrias, J., concur with Acosta, J.; Williams and Buckley, JJ., dissent in part in a separate opinion by Buckley, J.
Judgment, Supreme Court, Bronx County, rendered July 12, 2006, reversed, on the law, and the matter remanded for a new trial.