(concurring in result). We concur in the decision being made that reargument should be denied and that the judgments of conviction should be affirmed. We find ourselves unable to agree with statements made near the end of the majority opinion, which are not necessary to the decision, that conversations between clients and attorneys conducted in a foreign language in a crowded courtroom, give rise to a confidential status, in the absence of any prior objection addressed to the court that adequate opportunity to confer has been denied during the trial. No privileged communications are recognized between attorney and qlient which are made in the presence of *261third’persons who stand in no confidential relationship (Doheny v. Lacy, 168 N. Y. 213). Consequently, the presence in the courtroom, close to appellants’ desk, of a plain-clothes police officer, however he came to he there, cannot he said to have intercepted by stealth any privileged communications between appellants and their trial counsel. They knew that a stranger was present within earshot, nor could their constitutional rights have been violated due to the mere circumstance that they were unaware that he understood the language in which they were conversing with their attorneys. We do not doubt the constitutional right to the aid of counsel, which includes reasonable opportunity to consult with counsel. If any of these defendants were deprived of that right during the trial on account of police officers or others being in too close proximity to them or to their lawyers, they had the right to object upon the record at the time when they claim that any infringement of their rights occurred, but not to complain for the first time that they were denied privacy in the courtroom after they have been unsuccessful in the trial.
The situation is different from eavesdropping upon private consultation by wire tapping (Coplon v. United States, 191 F. 2d 749, certiorari denied 342 U. S. 926), or through the agency of a spy posing as a codefendant (Matter of Fusco v. Moses, 304 N. Y. 424). The use of a concealed recording device, instanced in the opinion, would be classifiable with the Goplon and Fusco cases, and should be condemned in our view also. The situation is different where a third person is present who is not in the confidence of defendants, with the consequence that they are chargeable with knowing that whatever is said to their lawyers in his presence will not be privileged. As the majority opinion states, there is a failure of proof that this plain-clothes officer, Harry Eubin, was placed in this courtroom to overhear consultations between these defendants and their attorneys. We agree with that, and, if the opinion had stopped there, would not have written this concurring memorandum. But we do not wish to be committed to an obiter dictum that, in some other case not now before the court, a new trial would necessarily be required if it were to develop that a communication between a defendant and his attorney were to be overheard, even if it were *262reported to the Sheriff or to the District Attorney. Such practices should be condemned, if they occur, the more emphatically if planned in advance; but it is easy for unscrupulous defendants to fabricate such incidents, and it is so difficult to sift the motives of persons who may thus be charged with deliberately engaging in such practices, especially if they themselves become parties to a conspiracy to manufacture such a defense, that it is wiser not to make the granting of a new trial dependent upon the motive instigating the presence of third persons in the courtroom, i.e., whether they have been “planted” there to listen, but to hold in accord with the traditional law that no confidential status exists if a stranger is known to be in the immediate presence of lawyer and client (Doheny v. Lacy, supra).
The burden would thus be placed upon a defendant of applying to the court to provide opportunity for private consultation during the trial if that right is being infringed.
There is no assertion that appellants were deprived of opportunity to consult with their attorneys outside of the courtroom, nor does the petition set forth that any request was made of the court during the trial to provide appellants with greater privacy in open court. Courtrooms are usually crowded, especially during sensational trials, and, unless an objection of this nature is made at the time, justice is not likely to be served by permitting defendants to keep it secret until after the verdict, and then present it for the first time if the outcome of the trial is adverse and they are convicted.
Lewis, Ch. J., Conway, Desmond and Froessel, JJ., concur with Fuld, J.; Dye and Van Voorhis, JJ., concur in result in a separate memorandum.
Upon reargument: Judgments of conviction affirmed. Questions under the Federal Constitution were presented and necessarily passed upon by this court; viz., as to whether the rights of the defendants to due process under the Fourteenth Amendment to the Federal Constitution were violated in that defendants’ claim (1) that they were deprived of their rights to counsel and a fair trial and that such rights were impaired.; and (2) that the district attorney used evidence known by him *263to be perjured and suppressed material evidence and that defendants were deprived of a hearing on this claim. This court held that there was no denial of any constitutional right of the defendants.
Judgments of conviction affirmed, etc.