I respectfully dissent. In the unique situation presented by this appeal, I believe a remittal is called for.
The trial commenced the morning of Monday, September 19, 1994. Appearances were noted and, before jury selection commenced, defense counsel agreed to waive the full record with respect to jury selection. County Court then stated, "And when your client arrives, which I understand will be later this morning, will you discuss with him whether or not he will agree to waive his attendance at the side bar conferences?” After defense counsel agreed, counsel and the court discussed the need for a Sandoval hearing. The People propounded a potential compromise which prompted the response that the "defense has no problem stipulating to the Sandoval compromise”. Thereafter, the court requested that counsel advise whether anything further needed to be attended to prior to the commencement of trial. The People stated, "Well, we have that other situation to address, but I would think we would have to wait for [defendant] to address it out of the presence of the jury.”
After preliminary remarks were made by County Court, it advised the jury panel that defendant "is on his way here this morning. He comes from out of state in Florida so he is not here for him to turn around and say good morning to you, but he will be here later this morning or by early afternoon.” When defendant appeared after lunch, he waived his appearance at side-bar conferences yet engaged in no further conversation concerning his failure to attend jury selection. Even when defense counsel propounded her motion to dismiss, no grounds for dismissal were based upon defendant’s absence during jury selection.
*832Although the trial record does not specifically reflect that defendant affirmatively waived his right to be present during jury selection or how jury selection came to commence without the presence of defendant, affidavits filed in this Court by defendant and his attorney, in support of an order of recognizance or bail subsequent to conviction, are enlightening. According to defense counsel, upon receiving a telephone call from defendant at 6:00 p.m. on Sunday, September 18, 1994, she informed him of the trial scheduled for Monday and advised him to catch the next flight to Albany. She asserted that the earliest flight defendant could secure was on the following day, Monday, September 19, 1994, which flight was scheduled to arrive at 11:35 a.m. Counsel represented, and defendant confirmed, that they kept in contact regarding his delayed arrival.
Unlike People v Brooks (75 NY2d 898, amended 76 NY2d 746), where the trial court failed to make inquiry and recite on the record the reasons why the defendant was not in attendance here County Court was well aware that defendant was traveling to the courthouse and was expected to arrive that afternoon. The court even advised the jury panel of his expected late arrival. Since an express waiver of defendant’s presence is not contained in the record, notwithstanding frequent acknowledgements of his absence and scheduled afternoon appearance, I find that the ambiguity surrounding the circumstances under which the court and counsel proceeded in his absence, coupled with defendant’s failure to object upon his arrival or at any point subsequent thereto (see, People v Foust, 180 AD2d 814, lv denied 79 NY2d 1049; People v Peterson, 151 AD2d 512), warrants a remittal to County Court for a hearing on the issue of whether defendant affirmatively waived his right to be present at the impaneling of the jury (see generally, People v Boomer, 220 AD2d 833, 837; People v Neely, 219 AD2d 444, 446-447, lv denied 88 NY2d 1023; People v Morgan, 200 AD2d 856; People v Restifo, 44 AD2d 870).* For these reasons, all other contentions should be held in abeyance.
Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Albany County for a new trial.
The author of respondent’s brief also advises this Court that he "was told by the trial ADA * * * and by Judge Teresi that defendant’s attorney * * * did advise Judge Teresi that defendant told her they could proceed in his absence”. Of course, this representation is dehors the record.