Opinion
September 23, 1996.
Appeal by the defendant from a judgment of the County Court, Westchester County (Wells, J.), rendered January 19, 1994, convicting him of robbery in the second degree, assault in the second degree, grand larceny in the fourth degree, assault in the third degree, and resisting arrest, upon a jury verdict, and imposing sentence.
Before: Mangano, P.J., Miller, Sullivan and Florio, JJ.
Ordered that the matter is remitted to the County Court, Wrestchester County, to hear and report on the question of whether the defendant was present at a side-bar conference when prospective juror number one was questioned during jury selection on October 26, 1993, and the appeal is held in abeyance in the interim. The County Court shall file its report with all convenient speed.
The defendant contends, among other things, that his absence during a side-bar conference with a prospective juror on the first day of jury selection violated his right to be present at all material stages of the trial ( see, People v Antommarchi, 80 NY2d 247; People v Davis, 216 AD2d 314). Specifically, the defendant challenges a side-bar conference with prospective juror number one on October 26, 1993.
The challenged side-bar conference was conducted on the record, and it concerned the prospective juror's possible bias as a police department employee. However, the record does not indicate whether the defendant was present at the side-bar conference, and therefore the appeal is held in abeyance and the matter is remitted to the trial court for a reconstruction hearing on this matter ( see, People v Davis, supra).
We pass on no other issues at this juncture.