Appeal by defendant from a judgment of the Supreme Court, Kings County (Lagana, J.), rendered July 20, 1981, convicting him of assault *852in the first degree, reckless endangerment in the first degree, and endangering the welfare of a child, after a nonjury trial, and imposing sentence. Matter remitted to Criminal Term to hear and report on the question of whether defendant formally waived his right to a jury trial in accordance with section 2 of article I of the New York State Constitution and appeal held in abeyance in the interim. Criminal Term is to file its report with all convenient speed. The hearing shall be held before a Justice other than Justice Lagaña. In his opening statement at defendant’s nonjury trial, defense counsel stated that “we waived a jury in this matter * * * because of the frequency of incidents like this I felt, sincerely felt that a jury of lay men [sic] would be unable to keep an open mind with this case”. The People concede that a written waiver cannot be found but assert that the judgment should not at this time be reversed and a new trial ordered inasmuch as the prosecuting Assistant District Attorney recalls that a formal waiver took place approximately 48 hours before trial. We agree. A criminal defendant may waive his right to a jury trial solely “by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense” (NY Const, art I, § 2; see CPL 320.10, subd 2). The People bear the burden of proving that such a waiver has been made (People v Meyer, 56 AD2d 937). Although the People are unable to furnish the writing by which defendant allegedly waived his right to a jury trial, this does not mean that they will be unable to prove that defendant did indeed knowingly, in a writing, and in open court, waive that right. Accordingly, a hearing must be held to reconstruct for the record the circumstances under which the waiver occurred (cf. People v Glass, 43 NY2d 283, 286). The hearing should be held before a Justice other than Justice Lagaña since it is possible that he may be called as a witness. We have considered defendant’s other contentions and find them to be without merit. Titone, J. P., O’Connor, Thompson and Bracken, JJ., concur.