p. 430The People of the State of New York, Respondent, v. Isidore Zimmerman, Appellant.reargued December 6, 1961;decided January 11, 1962.
p. 431Maurice Edelbaum for appellant.
Defendant-appellant convincingly established in the coram nobis hearing that his conviction was obtained by means of testimony which was perjurious to the knowledge of officials connected with the investigation and prosecution of the case. The said perjured testimony included testimony which was not only material but was prerequisite, as a matter of law, to sustain the conviction of defendant-appellant, namely, the testimony of Tobias Hanover which purported to corroborate the accomplice testimony of Cooperman and Rose. Defendant-appellant was denied a fair and impartial hearing of his petition for a writ of error coram nobis by virtue of the improper and unconstitutional conduct of the District Attorney in intimidatingly interrogating defendant-appellant’s prospective witnesses Hanover and Rose. Thereby defendant-appellant was denied due process of law in violation of the Constitution of this State and of the United States. (People v. Ledwon, 153 N. Y. 10 ; People v. Patrick, 182 N. Y. 131 ; People v. Fielding, 158 N. Y. 542 ; People v. Lombard, 4 A D 2d 666 ; Berger v. United States, 295 U. S. 78 ; People v. Slover, 232 N. Y. 264 ; Napue v. Illinois, 360 U. S. 264 ; People v. Rosario, 9 N Y 2d 286 .)
p. 432On reargument: I. At the criminal trial in 1938 the witness Bose did falsely deny that he had made any statements in the presence of a stenographer more than a week before that trial. II. The People’s failure at the 1938 criminal trial to produce Bose’s statements, dated May 25,1937, June 4, 1937, and March 5,1938, amounted to a suppression thereof affecting defendant’s right to a fair trial. (People v. Rosario, 9 N Y 2d 286 ; People v. Walsh, 262 N. Y. 140 ; People v. Schainuck, 286 N. Y. 161 ; Napue v. Illinois, 360 U. S. 264 .)Frank S. Hogan, District Attorney (Harold Roland Shapiro of counsel), for respondent.
On reargument: Failure to produce the three statements taken did not amount to a suppression thereof, affecting defendant’s right to a fair trial absent a showing that the statements contained information that legitimately tended to exculpate defendant, or which established that the prosecutor knew or believed or had reason to believe that the testimony which the accomplice was giving was false. (People v. Creasy, 236 N. Y. 205 ; George v. Ziegener, 135 N. J. L. 68 , 136 N. J. L. 589 ; People v. Savvides, 1 N Y 2d 554 ; Napue v. Illinois, 360 II. S. 264.)When the defendant was on trial in 1938 under an indictment charging murder in the first degree, the witness Bose called on behalf of the People falsely denied upon cross-examination that he had made any statements in the presence of a District Attorney’s stenographer more than a week before the trial when, in fact, he had previously made such statements, containing material inconsistencies, on May 25, 1937, on June 4, 1937, and on March 5, 1938.
The failure of the prosecutor to make any effort to correct this falsehood and to afford the court or defense counsel an opportunity to examine those statements, which were in his possession, in effect amounted to a suppression of such material
p. 433and prejudiced the defendant in his right to a fair trial
(People v. Mangi, 10 N Y 2d 86 ;
People v.
Savvides, 1 N Y 2d 554 ;
White v. Ragen, 324 U. S. 760 ;
Pyle v. Kansas, 317 U. S. 213 ;
Mooney v. Holohan, 294 U. S. 103 ). We decide no other question. The order appealed from should be reversed, the writ of error
coram nobis sustained and the appellant remanded for a new trial.
Chief Judge Desmond and Judges Dye, Froessel, Van Voorhis, Burke and Foster concur; Judge Fuld taking no part.
Order of Appellate Division (affirming denial of coram nobis after a murder first degree conviction commuted to life imprisonment) reversed and matter remitted to the Court of General Sessions for further proceedings in accordance with the opinion herein.