This is a very disturbing case. The factual basis for the defendant’s coram nobis application is set forth in the majority opinion of Mr. Justice Shapiro." In his oral decision on the cor am nobis hearing, Mr. Justice McDonald observed that the trial testimony sans the testimony of Anderson was sufficient to establish the defendant’s guilt beyond a reasonable doubt.. Being in accord with that view, I would prefer to adopt the conclusion reached in the majority opinion.
•However, it seems to me that the majority opinion throws an unfair burden on the defense in requiring it to call the lie on the prosecution’s witness who falsely denied that, he had been promised some benefit for his testimony.. Despite-the fact, that the defendant now says that Anderson informed him.before the trial “ that the district attorney had told him (Anderson) .that he would see what he could do to help him on, the gun case .under indictment #1821/1966, if he would testify against petitioner,” and the fact that his trial counsel, who continues to represent him here, concedes that his client had informed him. of his conversation with Anderson,* the choice presented tó them on the trial before the jury was indeed a Hobson’s choice. With the extensive cross-examination, by .both defense counsel and the trial court failing to crack, the. witness’ absolute statement of not only no promise but no suggestion of help at all, the defendant’s testimony of his conversation with, the witness would receive little or no credence from the jury when the prosecutor remained mute: Defense counsel in-these circumstances might well share the jury’s lack of belief in the story.
Mr. Justice Shapiro stresses such knowledge by the defendant as obviating any fraud, which he says is the basis for the rule *196requiring the prosecutor’s disclosure of a promise. He concludes that, because the defendant perjured himself when he testified on the trial that he knew of no reason why Anderson testified as he did against him, he should not now be accorded relief. I am not sure that the defendant’s testimony was in fact perjurious. In view of Anderson’s strong and persistent testimony of no quid pro quo, the defendant might well have concluded that Anderson’s jailhouse talk with him was simply imaginative boasting. The defendant did not hear the prosecutor make the promise, as was the case in Green v. United States (256 F. 2d 483), cited in the majority opinion of Mr. Justice Shapiro. Thus the defendant did not know the promise had been made and had no way of knowing whether Anderson’s trial testimony was true or false.
Anderson’s lie about no promise of help was not fixed until the prosecutor who had made the promise, and who tried the case, later deposed in an affidavit in support of his motion to dismiss the gun possession indictment against Anderson that in fact the promise had been made.
Like Mr. Justice McDonald, I would rather ignore this lapse of the prosecutor in failing to reveal the promise as harmless error, particularly since the trial proof overwhelmingly established the defendant’s guilt of a heinous murder. But until the Court of Appeals limits the effect of People v. Savvides (1 N Y 2d 554) I think we are bound to rule that ‘‘ the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth ’ ’ and this despite the nature of the case and the strength of the proof (People v. Savvides, supra, p. 557).
In People v. Adams (21 N Y 2d 397, 402) Judge Scileppi quoted with approval the language of the court in People v. Lombard (4 A D 2d 666, 671) that “ ‘ the District Attorney is an advocate, but, at the same time, he is a quasi-judicial official (People v. Fielding, 158 N. Y. 542) and his primary duty is to see that justice is done and the rights of all—defendants included—are safeguarded. There is a positive obligation on his part to see that a trial is fairly conducted (Berger v. United States, 295 U. S. 78).’”
Therefore, the order should be affirmed.
Latham, J., concurs with Shapiro, J.; Martuscello, J., concurs in result; Munder, Acting P. J., dissents and votes to affirm the order, with an opinion, in which Brennan, J., concurs.
Order reversed, on the law and the facts, and application denied.
(Although the defendant, in his affidavit in support of his cor am. nobis petition, says he “ never told his trial counsel of Anderson’s ” statement to him.)