Lawton, J. (dissenting). I dissent. Because, as found by the *1026majority, defendant was incompetent at the time of his Huntley hearing, he was in effect absent from a material stage of his trial (see, People v Turaine, 78 NY2d 871, 872; People v Anderson, 16 NY2d 282; People v De Armas, 106 AD2d 659, 660). To conduct defendant’s Huntley hearing in his absence violated his due process rights because it "could have a substantial effect on his ability to defend (see, Snyder v Massachusetts, 291 US 97, 105-106)” (People v Turaine, supra, at 872; see, People v Sloan, 79 NY2d 386; People v Anderson, supra, at 288). That procedure was "at a basic variance with the mandate of law” (People v Patterson, 39 NY2d 288, 296, affd 432 US 197) and therefore the issue is preserved without objection (see, People v Mehmedi, 69 NY2d 759, 760). In that regard, People v Bonaparte (78 NY2d 26, 31, n) establishes that, unlike a failure to object to a jury instruction, "the defendant’s right to be present at critical stages of the trial * * * implicate^] 'the organization of the court or the mode of proceedings prescribed by law’ and presents] reviewable questions of law even in the absence of a timely objection”.
Because defendant’s Huntley hearing was conducted in his absence, his conviction should be reversed and a new trial granted (see, People v Turaine, supra; People v Anderson, supra). (Appeal from Judgment of Supreme Court, Erie County, Kubiniec, J. — Attempted Murder, 2nd Degree.) Present — Callahan, J. P., Boomer, Balio, Lawton and Doerr, JJ.