Doerr, J. (dissenting). I respectfully dissent. In my view, defendant’s constitutional and statutory rights to be present during jury selection were violated when the court conducted a portion of the voir dire at the Bench in the presence of the prosecutor and defense counsel, but outside of the defendant’s presence. A defendant has a right to be personally present at the trial of an indictment (CPL 260.20; People v Darby, 75 NY2d 449; People v Parker, 57 NY2d 136, 139; People v Wilson, 106 AD2d 146, 148). "This necessarily includes all proceedings had in impaneling the jury” (People v Ciaccio, 47 NY2d 431, 436; People v Mullen, 44 NY2d 1, 4; People v Wilson, supra, at 149). In fact, this court has held that jury selection is a "crucial stage” in a criminal proceeding for which defendant’s presence is required (People v Wilson, supra, at 149).
A defendant may waive his right to be present at a criminal trial, but because "the right is one of a fundamental nature”, the "validity of any waiver * * * must be tested according to constitutional standards” (People v Parker, supra, at 140; see also, People v Epps, 37 NY2d 343, 350, cert denied 423 US 999). "In order to effect a voluntary, knowing and intelligent waiver, the defendant must, at a minimum, be informed in some manner of the nature of the right to be present at trial and the consequences of failing to appear for trial” (People v Parker, supra, at 141). Here, the record does not support a finding that defendant voluntarily, knowingly and intelligently waived his right to have portions of the voir dire conducted at the Bench outside of his presence. The court did not inform defendant of his rights in this regard, but merely asked defendant if he wished to waive his presence at the Bench during portions of the voir dire. From this very brief exchange, it cannot be concluded that defendant’s waiver met constitutional standards.
Nor do I agree with the majority’s determination that defendant, by failing to object to the procedure utilized by the court, has failed to preserve this issue for review (see also, People v Blake, 158 AD2d 979). Because the procedure adopted by the trial court "is at a basic variance with the mandate of law” (People v Patterson, 39 NY2d 288, 296, affd 432 US 197), this issue should be reviewed by an appellate court even in the absence of an objection. (Appeal from judgment of Onondaga County Court, Mulroy, J.—rape, first degree.) Present— Dillon, P. J., Doerr, Green, Lawton and Lowery, JJ.