
    (December 20,1973)
    In the Matter of Anthony B., a Person Alleged to be a Juvenile Delinquent, Appellant.
   Order of disposition, Family Court, Bronx County, entered in this juvenile delinquency proceeding on June 8, 1973, following a fact-finding determination, entered on October 6, 1972, that appellant had committed acts, which, if done by an adult, would constitute the crime of attempted rape, unanimously reversed, on. the law and in the interests of justice, and a new hearing ordered. It is conceded that appellant was not present in the courtroom when the hearing on September 12, 1972 was held and during which the evidence of appellant’s alleged delinquency was presented. The court clearly erred in starting the hearing in appellant’s absence. Neither the presence of appellant’s mother and the assigned counsel, while the hearing was in progress, nor the appearance of the appellant at the hearing held on October 6, 1972, constitutes a knowing waiver by appellant of his right to be present at his own trial and to be confronted by his accuser. On this record we cannot say that the appellant knowingly waived these constitutional rights. If the appellant had been present when the hearing was commenced, and thereafter left the courtroom without returning, a different problem would be presented. Concur — McGivern, J. P., Markewich, Lane, Steuer and Capozzoli, JJ.  