The opinion
Herlihy, J. (concurring).
The hearing conducted by the Presiding Judge of a trial court for the purpose of making a preliminary determination of whether or not a confession or declaration tending to reflect guilt meets the legal requirements for admissibility in evidence over objection is not a trial, but rather a part of the trial. The purpose of the hearing is to keep the very existence of such evidence from the knowledge of jurors until or unless it is adduced at trial. (See Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 438-439 ; 446-447.) It is also quite apparent that a *222 hearing whereat a confession will be disclosed bears a high degree of prejudice for any defendant if disclosed to potential jurors and will ordinarily require a closed hearing. (See Matter of Gannett Co. v De Pasquale, 43 NY2d 370 , affd 443 US 368 , Matter of Westchester Rockland Newspapers v Leggett, supra, p 438.)
As to pretrial hearings involving confessions and trial motions involving confessions the initial impact of disclosure somewhat differs. However, the net result is that a jury verdict might be rendered because of inadmissible evidence if disclosure is permitted.
What occurred in this case is the not altogether unusual situation of an evidentiary objection arising upon the trial which in fairness to the defendant needed to be determined outside of the hearing of the jury. Under such circumstances there was no basis for excluding the public from the motion proceedings, it only being necessary to exclude the jury. The public right of access to the courtroom must prevail, although it may mean that the jury will have to be sequestered.
Accordingly, the trial court erred in closing the courtroom to the public (Judiciary Law, § 4).
In the context of this case it does not appear that there was any basis for the trial court to have indulged in a balancing of the public’s right to be informed with any supposed right of the defendant to closure or that there was any need for the public, including the petitioners, to have been accorded any particular opportunity to be heard. Since the entire record is available, including the transcript of the hearing of the evidentiary motion, the error in this case should be treated as judicial error.
The petition should be dismissed for mootness as to mandamus upon release of the transcript of the alleged secret proceeding and for failure to state a cause of action for prohibition.
Greenblott, Main and Mikoll, JJ., concur with Mahoney, P. J.; Herlihy, J., concurs in a separate opinion.
Petition dismissed, without costs.