
    The People of the State of New York, Respondent, v. Edwin Codarre, Appellant.
    Argued June 10, 1964;
    decided July 10, 1964.
    
      
      O. John Rogge for appellant.
    I. The prosecution’s suppression of evidence favorable to the defense, whether due to negligence, willfulness or an excess of zeal, is a violation of due process. (People v. Savvides, 1 N Y 2d 554; Napue v. Illinois, 360 U. S. 264; United States v. Consolidated Laundries Corp., 291 F. 2d 563; Brady v. Maryland, 373 U. S. 83; United States v. Wilkins, 326 F. 2d 135.) II. Defendant is entitled to his immediate release. (People v. Oliver, 1 N Y 2d 152.)
    
      Raymond C. Baratta, District Attorney (John R. Heilman and Peter L. Maroulis of counsel), for respondent.
    I. Defendant-appellant was legally sane, and not in the throes of epilepsy at the time of the commission of the crime. (People v. Higgins, 5 N Y 2d 607.) II. Evidence adduced at the hearing conclusively supported discretion of the Trial Judge in 1943. (People v. Smyth, 3 N Y 2d 184; People v. Boehm, 309 N. Y. 362; People v. Flora, 306 N. Y. 615; People v. Esposito, 287 N. Y. 389.) III. There was no suppression that would warrant the relief sought by defendant-appellant. (People v. Savvides, 1 N Y 2d 554.)
   Bergan, J.

In pursuance of the 1961 decision of this court (10 N Y 2d 361) remitting the defendant’s coram nobis application to the County Court, a trial of the issues raised in the proceeding has been held. The County Court has dismissed the petition on the merits and the Appellate Division has affirmed.

Although the defendant was only 13 years old in 1943 when he was indicted for murder in the first degree, the indictment was valid as the law then stood and at the end of the People’s case the proof was such that the court would have been required to send the case to the jury on the murder first degree charge. On that proof the Judge could not have dismissed or reduced the charge.

At this point defendant’s counsel asked the court to accept a plea of guilty to murder in the second degree. Although there was before the Judge in the conference with counsel at which the request to accept the plea was discussed an expression of medical opinion by one psychiatrist that defendant was psychotic at the time of the commission of the charged crime, three other psychiatrists, including one retained on defendant’s behalf, expressed to the Judge the view that he was sane. The Judge accepted the plea of guilty to murder second degree, and it was neither an. error of law nor deprivation of due process for him to accept the plea.

The jury could have found the defendant guilty of murder in the first degree. It might have acquitted him on the ground of insanity had it accepted the opinion of the psychiatrist who thought he was insane. But the Judge should not have compelled defendant to have taken the risk of conviction for murder in the first degree against the advice and suggestion of his own counsel that a plea to a lesser degree be accepted. With the record now fully developed of what occurred at the conference in 1943, the Judge’s decision to accept the plea was within a fair range of responsible judicial action. The fact that the District Attorney had in his possession an electroencephalogram of defendant did not amount to a suppression of evidence. It was less favorable to defendant than a later one in the possession of defendant’s own lawyer.

The order should be affirmed.

Fuld, J.

(dissenting). The issue posed on this appeal is not whether the defendant is guilty or innocent of the 1943 murder charged against him or even whether he would have succeeded in establishing his defense of insanity had the trial continued to conclusion. The issue, simply stated, is whether a procedure which, particularly under the circumstances here disclosed, permits a 13-year-old child, admittedly suffering, from epilepsy and perhaps legally insane, to plead guilty to murder in the second degree and be subjected to imprisonment for a term of from 30 years to life violates the due process clause of the Fourteenth Amendment.

In my view, it does and, even more to the point, we so decided when the case was previously here (10 N Y 2d 361). At that time, we disagreed with the conclusion of the courts below that coram nobis was not available to this defendant and, holding otherwise, directed a hearing. In so doing, the court explicitly declared, in an opinion by Chief Judge Desmond, that “the taking of a guilty plea of murder from so young a defendant ” was not permissible unless it appeared on a trial of the defendant’s petition that there was “ at least certainty of guilt and of the complete absence of any plausible defense” (10 N Y 2d, at p. 365).

The hearing which we directed was held, and it is undisputed, that no such showing was made. Far from establishing ‘‘ certainty of guilt ” and an “ absence of any plausible defense ”, the evidence taken at the hearing disclosed that the psychiatrist, who had been prepared to testify on behalf of the defendant upon the trial of the indictment, actually apprised the trial judge, just before the latter accepted the plea of guilt, that the defendant had killed during the throes of an epileptic rage or furor attack. The psychiatrists for the prosecution, it is true, expressed a contrary view but the other expert’s opinion constituted ample foundation for a ‘ ‘ plausible defense ’ ’ to the murder charge.

The order appealed from should be reversed and the defendant’s application for an order in the nature of a writ of error coram nobis granted.

Judges Dye, Van Voorhis, Burke and Scileppi concur with Judge Bergan; Judge Fuld dissents in a separate opinion in which Chief Judge Desmond concurs.

Order affirmed.  