
    The People of the State of New York, Respondent, v. Leon Washington, Appellant.
    Argued April 27, 1973;
    decided May 31, 1973.
    
      Richard T. Farrell for appellant.
    The failure to disclose was substantial error requiring a new trial. (Matter of Lyons v. Ward, 272 App. Div. 120, 297 N. Y. 617, sub nom. Paterno v. Lyons, 334 U. S. 314; People v. Alex, 260 N. Y. 425; People v. 
      Steinhardt, 9 N Y 2d 267; People v. Lombardi, 20 N Y 2d 266; People v. Mleczko, 298 N. Y. 153; People v. Adams, 21 N Y 2d 397; People v. Savvides, 1 N Y 2d 554; People ex rel. Childs v. Extraordinary Trial Term, 228 N. Y. 463; People v. Schwartzman, 24 N Y 2d 241; People v. McKinney, 24 N Y 2d 180.)
    
      Eugene Gold, District Attorney (Roger Bennet Adler of counsel), for respondent.
    I. Defendant’s failure to call the arrangement between the prosecutor and the witness Apderson to the trial court’s attention bars defendant’s collateral attack upon the judgment of conviction. (Napue v. Illinois, 360 U. S. 264; People v. Savvides, 1 N Y 2d 554; People v. Mangi, 10 N Y 2d 86; People v. Parks, 20 A D 2d 907; People v. Ellington, 19 A D 2d 654; People v. Yamin, 45 Misc 2d 407; People v. Rosenberg, 59 Misc 2d 1; United States v. Branch, 261 F. 2d 530; Taylor v. United States, 229 F. 2d 826, 351 U. S. 986; Green v. United States, 256 F. 2d 483, 358 U. S. 854.) II. The harmless error rule is amenable and should be applied to the claim and facts in the case at bar. (Chapman v. California, 386 U. S. 18; Griffin v. California, 380 U. S. 609; Tumey v. Ohio, 273 U. S. 510; Harrington v. California, 395 U. S. 250; Schneble v. Florida, 405 U. S. 427; Milton v. Wainright, 407 U. S. 371; Massiah v. United States, 377 U. S. 201; People v. Howard, 12 N Y 2d 65, 374 U. S. 840; People v. Brown, 13 N Y 2d 201; People v. Washington, 33 A D 2d 699.)
   Jones, J.

We affirm in this case on a very narrow ground. At the trial of Washington the appellant here, Martin Anderson an important prosecution witness, falsely and insistently testified on cross-examination that he had no reason to expect leniency in return for his willingness to take the witness' stand for the prosecution. In fact at least soft promises, and probably more, had been made to him, and after the trial of Washington a related indictment against Anderson was dismissed on recommendation of the prosecutor, who cited Anderson’s co-operation at Washington’s trial.

The prosecutor, who personally had given the assurances to Anderson, took no steps to tell the jury the truth of the matter. Were there no more, we would reverse and order a new trial. (People v. Savvides, 1 N Y 2d 554; People v. Mangi, 10 N Y 2d 86; Napue v. Illinois, 360 U. S. 264.)

On the present cor am nobis application, however, Washington repeatedly asserts that just prior to his trial, he had been informed by Anderson of the promises made to Anderson by the prosecution. When at his trial Washington took the stand to establish an alibi, the Trial Judge, on his own, examined him closely as to whether he knew any reason why Anderson would have given the testimony against him which Anderson had. Washington was then evasive and failed totally to disclose to the court or to the jury the knowledge he had of the promises which had been made to Anderson.

Further, at the hearing on this application, Washington’s counsel, who had also been his trial counsel, informed the court that the report of Anderson’s pretrial disclosure of the promises made to him was not a recent contrivance. With commendable candor counsel told the court that Washington had told him at the time of the trial of the information furnished by Anderson.

We deplore the failure of the prosecutor immediately to correct the entirely false impression left by Anderson’s testimony. Where, however, as here, both the defendant and his counsel, with knowledge of the facts, stood silently by and did nothing themselves to remedy the situation, we would make a very limited exception to the Savvides rule. To do otherwise, in our view, would be merely to punish the prosecution, and thus to penalize the People, where there cannot be said to be legitimate interests of the defendant to be protected.

Chief Judge Fuld (dissenting).

The critical fact in this case stands undisputed. An important witness for the prosecution blatantly and persistently lied when, on cross-examination, he testified that he had received no promises of leniency in return for his testimony against the defendant, and the trial prosecutor, knowing full well that the witness was lying, stood silently by without telling the court or jury the truth. Such conduct, in my view, is indefensible and demands that the requested writ of coram nobis be granted and a new trial ordered. (See, e.g., People v. Savvides, 1 N Y 2d 554, 556-557; People v. Mangi, 10 N Y 2d 86, 89; People v. Adams, 21 N Y 2d 397, 402; Napue v. Illinois, 360 U. S. 264, 269-270.)

That the witness apparently told the defendant, prior to the trial, that he had been promised leniency and that he had passed such information on to his lawyer can hardly justify or condone the prosecutor’s silence. The defendant and his attorney—in view of the witness’ repeated and categorical testimony to the contrary in the very presence of the prosecutor—may well have been led to believe that the witness was lying when he informed the defendant that the district attorney had promised him leniency. In any event, and this is crucial, defense counsel and his client were assuredly entitled to rest upon the certainty that, if the witness was testifying falsely on so vital a matter, the prosecutor himself would speak out and set the record straight.

In People v. Savvides (1 N Y 2d 554, supra), this court unequivocally announced the principle to be applied in situations such as this (pp. 556-557):

“ The administration of justice must not only be above reproach, it must also be beyond the suspicion of reproach. The prosecutor should have corrected the trial testimony given by [the witness] and the impression it created. * * * His failure to do so constitutes 1 error so fundamental, so substantial, ’ that a verdict of guilt will not be permitted to stand. (People v. Creasy, 236 N. Y. 205, 221.)
“It is of no consequence that the falsehood bore upon the witness ’ credibility rather than directly upon defendant’s guilt. A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth. Nor does it avail respondent to contend that defendant’s guilt was clearly established or that disclosure would not have changed the verdict. The argument overlooks the variant functions to be performed by jury and reviewing tribunal. It is for jurors, not judges of an appellate court such as ours, to decide the issue of guilt.’ (People v. Mleczko, 298 N. Y. 153, 163.) *• * * That the district attorney’s silence was not the result of guile or a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial that could in any real sense be termed fair.” (Emphasis supplied.)

What we declared in Savvides should not, in this case, be watered down one drop or changed one tittle. When a prosecutor realizes that his witness is perjuring himself — even if he believes that the defendant also knows that the witness has spoken falsely—he should immediately and forthrightly step forward and expose, the lie. A regard for the rigid standards of honesty and fair dealing imposed upon prosecutors requires no less. It is upon their “ 1 conscience and circumspection ’ that our criminal justice system depends. (United States v. Dotterweich, 320 U. S. 277, 285.)

The order appealed from should be reversed and a new trial ordered.

Judges Burke, Breitel, Jasen, Gabrielli and Wachtler com cur with Judge Jones; Chief Judge Fuld dissents and votes to reverse in a separate opinion.

Order affirmed.  