(dissenting). I respectfully dissent. On the authority of People v Hudson (19 NY2d 137,140, cert denied 398 US 944) and our precedents in People v Wright (105 AD2d 1088) and People v Weech (105 AD2d 1085), I would reserve decision and remit the matter for a reconstruction hearing pertaining to defendant’s competency to stand trial.
The rationale for the majority’s decision to reverse without directing a hearing is, significantly, not that a satisfactory reconstruction is impossible but that “the possibility of reconstruction is unlikely” (majority opn, p 305). The existing possibility of a successful reconstruction, considering the profusion of available relevant evidence, should, without more, be reason enough to direct the hearing the People request. Here, as with any attempted reconstruction, it is problematical whether the *307hearing court, if given the opportunity, would ultimately conclude that it has sufficient contemporaneous information on which to base a retrospective decision on defendant’s competence. But it should be for the hearing court to decide, based on the evidence in the record and whatever additional proof it may take, whether there is enough on which to make a reliable determination.
Given the extensive efforts made by the trial court to ascertain defendant’s competency, the vast amount of contemporaneous material in the record, the seriousness of the crime and the fact that the passage of time from trial to defendant’s raising the issue cannot be assessed against the People, there appears to be no reason why the attempt should not be made. Such a course would not jeopardize the rights of the People or defendant and would entail comparatively little additional time and expense. More importantly, it would avoid the risk of holding a potentially needless retrial several years after the event and vitiating what might well be established on the hearing to have been a valid judgment of conviction. In sum, considering the record here, if there is a chance of success in reconstruction, does it not seem sensible to try it? But aside from that, I cannot accept the premise on which the majority bases its rejection of a hearing: that reconstruction, while not impossible, is unlikely. The record supports the opposite conclusion.
The majority assigns two factors “which militate against the likelihood of * * * reconstruction”: the length of time since trial and the lack of opportunity to observe defendant’s behavior at trial (majority opn, p 305). These factors, taken alone or together, do not compel the result the majority reaches. And, compared with similar cases where hearings have been directed (see, People v Armlin, 37 NY2d 167; People v Gonzalez, 20 NY2d 289, cert denied 390 US 971; People v Hudson, supra; People v Wright, supra; People v Weech, supra; People v Vallelunga, 101 AD2d 603; People v McCabe, 87 AD2d 852; People v Ross, 50 AD2d 1064), the record here reveals an availability of far more expert and other evidence on which a competency determination could be based.
The record shows that the following evidence could be adduced at a hearing:
(1) Testimony from the four psychiatrists (Drs. Reynolds, Ciccone, Patil and Perez), who conducted four separate competency examinations pursuant to various orders of the court.1
*308(2) Testimony from two additional psychiatrists (Drs. Barton and Klein, who testified- at trial on the defense of insanity) concerning their opinions and observations made during interviews with defendant on various dates within one month prior to trial. 2
(3) Testimony of personnel at the Rochester Psychiatric Center as to their observations of defendant during the period of defendant’s admission (May 21, 1979 — July 9, 1979) and hospital records and other documentary evidence relating to that admission.
(4) Testimony of personnel from the Monroe County Mental Health Clinic who observed defendant from the time of his discharge from the Rochester Psychiatric Center through the end of the trial.3
(5) The record of the competency hearing conducted by the trial court on September 17 and 18, 1979, at which Marilyn Giannavola, Corporal Willie C. Brown, and Dr. Reynolds testified as to defendant’s conduct and competence at the time.
(6) Testimony of the Trial Judge, defense counsel, the prosecutor, the court reporters, court attendants, and anyone else who may have observed defendant’s conduct during those times when he was present in court.4
(7) Testimony from Dr. Reynolds as to his observations and opinions of defendant’s competence made in connection with his *309court-ordered biweekly reports as to defendant’s competency during the time that defendant was absent from trial.
(8) Testimony of defense counsel who saw defendant during trial, while defendant was absent, and testimony of jail personnel as to defendant’s conduct during this period.5
I turn briefly to the first factor which in the opinion of the majority makes “the possibility of reconstruction * * * unlikely” — lapse of time since trial. Little comment is required. As the majority notes (majority opn, p 305), that factor, standing alone, is not determinative. It must be considered together with the extent of contemporaneous examinations and observations by psychiatrists (both in connection with competency determinations and for the purposes of the insanity defense) and other “medical proof related to conditions at the initiation and during the progress of the trial, and of the close observations of witnesses who, from different points of vantage, observed defendant and could describe his conduct” (People v Hudson, 19 NY2d 137, 140, supra). Considering the mass of available relevant proof as to defendant’s capacity and the periods of time between trial and remittitur for hearings in comparable cases (see, e.g., People v Weech, 105 AD2d 1085, supra [five years]; People v Mullooly, 37 AD2d 6 [eight years]), the elapsed time here — less than six years — certainly does not appear to warrant the foreclosure of any attempt at reconstruction.
Nor, in the light of the total record, should the majority’s second factor — defendant’s absence from trial after the fifth day of jury selection — present an obstacle to reconstruction. A hearing court could determine whether defendant “was able to cooperate with his attorney and * * * understand the nature and object of the proceedings against him” (Drope v Missouri, 420 US 162, 181) from the testimony of the trial court, the lawyers, court attendants and others concerning defendant’s demeanor during the seven days he was present in court (see, n 4, p 308, supra) and from the testimony of Dr. Reynolds, defense counsel and jail personnel as to their observations of defendant while he was absent from the trial. Whether this together with the other evidence available is sufficient should be for a hearing court to determine.
That there were flaws in the CPL article 730 proceeding, as in all cases where reconstruction has been directed, goes without saying. As we noted in People v Weech (supra), while it is not possible to duplicate a CPL article 730 proceeding after the *310event, “it is possible to reconstruct the mental capacity of defendant at the time of trial through an adversary inquiry and thus preserve ‘[a]ll the safeguards of a concurrent determination’ (People v Hudson, 19 NY2d, at p 140)” (People v Weech, supra, p 1086). With respect to the defect in the proceedings due to Dr. Reynolds’ lack of statutory qualifications, we observed in Weech that at the hearing “it would be appropriate to introduce the testimony of Dr. Reynolds. The fact that he may not be a ‘qualified psychiatrist’ (CPL 730.10, subd 5, par [a]) does not' mean that his testimony may not be considered. He is qualified to state his expert opinion as to defendant’s competency, subject to cross-examination. Should the court deem it necessary, it may call an additional qualified psychiatrist. Similarly, the psychiatrist who examined defendant in connection with his defense of insanity could be called upon to testify with respect to defendant’s mental status at the time of his examination. Additionally, the psychiatric social worker and psychiatric nurse who observed defendant could be called upon to testify as could defense counsel and the Trial Judge (see People v Hudson, supra, p 140)” (People v Weech, supra, pp 1086-1087). The same procedures could be followed here.
To be sure, success in reconstruction, if it were ordered, would not be certain. It can never be. On this record, though, success seems likely and, in my opinion, in fairness to all concerned, the attempt should be made.
Green, O’Donnell and Pine, JJ., concur with Denman, J.; Hancock, Jr., J. P., dissents and votes to hold the case, reserve decision and remit for further proceedings in a separate opinion.
Appeal No. 1 — Judgment reversed, on the law, and a new trial granted.
Appeal No. 2 — Order reversad, on the law, and a new trial granted.
. On May 26, 1978, at defense counsel’s request, the court ordered that defendant be examined as to competency. On July 11,1978, it received reports *308of Drs. Reynolds and Ciccone stating that defendant was incompetent. On August 3,1978, a second set of competency examinations was ordered, and the court thereafter received reports from Drs. Reynolds and Ciccone finding defendant competent. After a third set of competency examinations was ordered on January 3, 1979, reports were received from Drs. Patil and Perez stating that defendant was competent. Following a direction for a final set of competency examinations, the court on May 4,1979 received a letter from Dr. Reynolds finding defendant competent.
. Defendant was interviewed twice by Dr. Barton (who testified for the prosecution at trial), and both interviews were transcribed by a court reporter. On September 6,1979, defendant was examined by Dr. Klein, who testified for the defense. Significantly, at trial, Dr. Klein testified that during the September interview, defendant was oriented and coherent.
. At trial, records from the Monroe County Mental Health Clinic for the period of September 12, 1978 up to and including August 1, 1979 were received. Carol Saginaw, a psychiatric social worker, observed the defendant when defendant initially absented himself from the proceedings, and Dr. Reynolds observed defendant continuously through trial.
. Defendant was present before the trial court while various pretrial hearings were conducted on August 16 and 17, 1979, less than one month before trial, and for a continuous five-day period while the jury was being selected and at the time of sentencing. The record shows that defense counsel consulted with his client during jury selection, and there is no indication that defendant at any time exhibited erratic or other abnormal behavior in court.
. Defense counsel stated at one point during the trial that he had spoken to defendant and that defendant had relayed to him confidential information.