
    The People of the State of New York, Respondent, v. Irving Robertson, Appellant.
    Argued February 25, 1963;
    decided April 4, 1963.
    
      
      F. Bosley Crowther, III, Anthony F. Marra and William G. Dakin for appellant.
    I. The use of false testimony of a law-enforcement officer to rebut appellant’s claim that his confession was coerced denied appellant due process of law as guaranteed by the Fifth and Fourteenth Amendments. II. This testimony was material. (Curran v. Delaware, 154 F. Supp. 27, 259 F. 2d 707, 358 U. S. 948.) III. The use of the false testimony constituted a negligent suppression of material evidence. (Pyle v. Kansas, 317 U. S. 213; United States v. Consolidated Laundries Corp., 291 F. 2d 563; Kyle v. United States, 297 F. 2d 507.) IV. The use of this false testimony was inherently unfair. (People v. Savvides, 1 N Y 2d 554; Mesarosh v. United States, 352 U. S. 1; Campbell v. State of New York, 186 Misc. 586.)
    
      Edward S. Silver, District Attorney (Aaron Nussbaum of counsel), for respondent.
    I. The Court of Appeals is without jurisdiction since there is no question of law to be reviewed. (People v. Most, 171 N. Y. 423; People v. Pesky, 254 N. Y. 373; People v. Lobel, 298 N Y. 243; People v. Davis, 303 N. Y. 235.) II. The testimony was neither false nor perjurious; nor was the subject matter in any way known to or suppressed by the District Attorney; nor was it in any way material or relevant to appellant’s guilt or innocence. (People v. Costello, 8 N Y 2d 954, 365 U. S. 852; People v. Fanning, 300 N. Y. 593; People v. Sadness, 300 N. Y. 69; Matter of Morhous v. Supreme Court, 293 N. Y. 131; Napue v. Illinois, 360 U. S. 264; Alcorta v. Texas, 355 U. S. 28; People v. Freudenberg, 5 N Y 2d 209; People ex rel. Harrington v. Martin, 263 App. Div. 922, 316 U. S. 678; Campbell v. State of New York, 186 Misc. 586; People v. Bartolillo, 10 N Y 2d 715; People v. White, 309 N. Y. 636; People v. Richetti, 
      302 N. Y. 290; Rice v. Olson, 324 U. S. 786; Curran v. Delaware, 259 F. 2d 707, 358 U. S. 948; Mesarosh v. United States, 352 U. S. 1; People v. Savvides, 1 N Y 2d 554.) III. There was no negligent suppression of material evidence. (United States v. Consolidated Laundries Corp., 291 F. 2d 563.)
   Chief Judge Desmond.

This is a coram nobis case with a difference. Defendant has been denied relief although the fact on which he relies — that a police officer’s important testimony at defendant’s criminal trial was false — is now undisputed and has been decided in his favor after a coram nobis hearing. But a new trial was denied him on a finding by the County Judge that the false testimony given at the criminal trial was not perjurious (that is, mistaken but not intentionally false) and on further findings that the prosecutor was not aware of the falsity and that the untrue testimony was not material to the issue resolved at the criminal trial. Of course, these pronouncements of the coram nobis court were in a sense findings of fact. Essentially, however, they are policy determinations as to the reach of coram nobis, and they express a policy to which we cannot adhere. Defendant must be retried.

The background is in the record of defendant’s 1957 criminal trial which ended in his conviction of robbery first degree, grand larceny second degree and assault second degree and a 15- to 30-year prison term. The indictment was a consequence of a holdup robbery. The victim was unable to identify the defendant as one of the two men who had robbed him. The only testimony naming defendant as one of the two robbers was given by one Reaves who swore that he was the driver of the getaway car and that defendant and defendant’s brother were the two robbers. Reaves, of course, was an accomplice as matter of law and the Trial Judge so instructed the jury at the criminal trial. Corroboration of his story was, therefore, necessary. It was supplied by a District Attorney’s stenographer who put in evidence an unsigned question-and-answer statement by defendant, admitting his guilt.

The untrue testimony given against defendant at the criminal trial was rebuttal put in by City Detective James F. Casey who had been in charge of the questioning of defendant at a police station known as Brooklyn East Burglary Squad”. This officer’s testimony was of highest importance since, if true, it destroyed defendant’s previously given testimony that during the questioning at “Brooklyn East Burglary Squad” he was plied with wine by police officers whom he did not know but not including Casey. Defendant had testified that an officer named Casey had questioned him for a short time when he first came to this police station but that thereafter three other detectives whose names he did not know took over the questioning. This questioning at the “ Burglary Squad ” took place between noon and 7:30 p.m. on Friday, November 30, 1956. Defendant, on the stand at the criminal trial, swore that he had been out drinking all the night before the morning on which he was taken to the police station. He swore that in the evening of that day he was taken to a different Brooklyn police station and was questioned, threatened and assaulted by various police officers until about 2 o’clock in the morning of December 1, 1956 when an Assistant District Attorney came to the station house and took from him the incriminating statement which was transcribed by the stenographer and read to the jury.

At the criminal trial the People rebutted defendant’s affirmations by producing seven New York City police officers each of whom testified that he had had something to do with defendant’s detention. Each said that there was no beating, no furnishing of wine and no coercion of any sort. Three only of these officers (Averill, Ringswald and Casey) were at “ Brooklyn East Burglary Squad ” and two of the three (Averill and Ringswald) stated that their contacts with defendant were brief and that they had not stayed with him during the whole of the seven-hour period of detention at that place. Detective Casey, however, swore that he was in charge of the questioning of defendant, that he was with defendant during practically the whole seven hours except that he was in and out of the room occasionally, and that no one gave defendant anything to drink. This assertion was, of course, a knockout blow to the defense since it came from the man who said he was in charge of the Brooklyn questioning and present there practically all the time during the questioning. It made defendant’s story about the wine appear completely false. On cross-examination at the criminal trial, Detective Casey was asked whether it was not true that he was absent from the police station for several hours that afternoon but he denied this and denied that he had left the building while defendant was there. At the close of defendant’s trial on the indictment, the court informed the jury that there were sharp issues of fact as to the manner and incidents of appellant’s interrogation and that if the jury believed defendant’s story of intimidation and coercion they should acquit, charging the jury also that the burden of proof as to voluntariness of the confession was on the prosecutor. The jury’s verdict was “ guilty ”.

When the coram nobis petition came on for hearing, an Assistant District Attorney forthrightly stipulated that for a considerable part of the afternoon of November 30 Detective Casey had not been at the Brooklyn police station as he swore at the earlier trial but had actually been in the District Attorney’s office in connection with another investigation. Detective Casey took the stand, admitted that his trial testimony as to that afternoon was untrue but ascribed the untruth to confusion and failure to check the facts. The Assistant District Attorney who had tried the criminal cause testified that he had no knowledge at the time of the criminal trial that Detective Casey’s testimony was contrary to fact.

The finding that the officer’s rebuttal testimony was not material must be rejected. Without the confession the indictment would have had to be dismissed for lack of corroboration of the accomplice. As the jury were properly advised at the criminal trial, the confession was not to be received unless voluntary. On the issue of voluntariness defendant gave proof that he had been served intoxicating liquor by the police officers and this, if believed by the jury, could have been a basis for a finding that the confession was not voluntary. Then Detective Casey was put on the stand in rebuttal and destroyed the story. Casey’s story has now in turn been destroyed. The fact that the confession was given in the evening at a different place does not make immaterial the proof as to what happened during the afternoon.

Respondent says, correctly, that coram nobis relief will not be granted merely on a showing that false testimony was given for the prosecution, absent a showing that the prosecution knew of the falsity (People v. Fanning, 300 N. Y. 593). The rationale is that a post-trial demonstration of falsity of material testimony by a prosecution witness does not in itself impute fraud to the prosecution. But here the untrue story was given by the very police officer in charge of the investigation and his wrongdoing must be charged to the prosecution. We are unimpressed by the argument that there can be no relief because the falsity was unintentional. The fault of the offender may be less but the effect is the same and the giving of carelessly false testimony is in its way as much of a £i fraud ’’ on the court as if it were deliberate (as to ££ negligent suppression ” of material evidence see United States v. Consolidated Laundries Corp., 291 F. 2d 563). Coram nobis proceedings have as their prime purpose the redress of such frauds.

The prayer of the petition should be granted and a new trial ordered.

Dye, J. (dissenting).

Following a cor am nobis hearing on the merits, both courts below have held that Officer Casey did not commit perjury at the 1957 trial when he inadvertently and mistakenly testified that he was constantly in the Brooklyn Burglary Squad on the afternoon of November 30, 1956 until 7:00 p.m. and that at no time did he leave the precinct all that afternoon. At the coram nobis hearing Officer Casey, having had his recollection refreshed, testified that in fact he did leave the squad office to take a statement at the District Attorney’s office involving another crime at about 3:35 p.m. and that had he realized the error at the time he would have so testified as he had no reason for testifying to the contrary. It is likewise undisputed that the attorney who prosecuted was not aware of this contradictory evidence. We have consistently ruled that coram nobis does not lie without allegation and proof ££ of fraudulent use of perjured testimony by the prosecuting attorney ” (People v. Costello, 8 N Y 2d 954, cert. den. 365 U. S. 852, rehearing den. 366 U. S. 915 ; People v. Fanning, 300 N. Y. 593; People v. Sadness, 300 N. Y. 69; Matter of Morhous v. Supreme Court, 293 N. Y. 131; Napue v. Illinois, 360 U. S. 264; Alcorta v. Texas, 355 U. S. 28).

When appellant was first brought to the Brooklyn Squad about 12:30 p.m. on November 30, 1956, he was interrogated by Casey and others until about 2:00 p.m. and was then taken to his home. In the meantime Casey went to the office of the District Attorney. Upon his return to the squad office about 4:00 p.m., the appellant had also been returned for further questioning. According to appellant an unidentified officer gave him some wine between 4:30 p.m. and 4:45 p.m. At about 7:00 p.m. appellant was delivered to the 63rd Squad. Throughout these periods of detention and questioning, appellant stoutly maintained his innocence. However, when confronted with indisputable proof connecting him with the crime, he made a statement in the nature of a confession about 12:30 a.m. At the trial, he repudiated the voluntariness of the confession, asserting it had been induced by the wine, together with threats of violence and coercive methods practiced by the police. Every detective involved in the interrogation from the time of appellant’s detention to the time he confessed testified in rebuttal that at no time was appellant threatened or coerced, and the appellant was never at any time given any wine. Casey so testified, and it is undisputed that he was present at the time the wine episode is alleged to have occurred and reiterated it at the coram nobis hearings.

Whether Detective Casey was present or not during the entire period of time that appellant was in the Burglary Squad was wholly immaterial and irrelevant to the issue of voluntariness of the confession which had been made in a different setting, before different officers, and at a much later period of time — to wit, 12:30 a.m. December 1, 1956.

Both courts below have found as a fact that such testimony could have no bearing on the issue of appellant’s guilt or innocence or whether or not the confession was a voluntary one.

Coram nobis relief is not applicable for nonmaterial allegation affecting no substantial right of the accused (People v. Freudenberg, 5 N Y 2d 209) nor has it been made available as the alter ego of a statutory remedy such as a motion for a new trial on newly discovered evidence (Matter of Hogan v. Court of General Sessions, 296 N. Y. 1; People v. Lesser, 304 N. Y. 903).

Nowhere in the trial record or in the minutes of the coram nobis hearing does it appear that this appellant was in any way deprived of due process requiring correction by judicial process. The sole issue was one of fact.

For these reasons I dissent and vote to affirm.

Judges Fuld, Burke and Foster concur with Chief Judge Desmond; Judge Dye dissents in an opinion; Judges Van Voorhis and Scileppi concur in the following memorandum: In our view, it is an unwarranted extension of relief by coram nobis to employ that writ to retry questions of fact that have been decided at a trial, even though it later develops that some of the testimony against the accused was contrary to fact, unless it has been fraudulently introduced by the prosecution. Neither is a writ of error coram nobis a substitute for a motion for a new trial on the ground of newly discovered evidence. The order affirming the dismissal of the petition should be affirmed.

Order reversed, the judgment vacated and a new trial ordered.  