(dissenting). On February 28, 1978, the defendant, Dominic Pilotti, entered a plea of guilty to criminal possession of a weapon in the third degree pursuant to a plea bargaining agreement under which he was thereafter sentenced to a term of 2V% to 5 years, that sentence to run concurrently with a sentence of 11 to 22 years imposed on the defendant the year before when he pleaded guilty to manslaughter in the first degree under an indictment charging him with the murder of Wilfredo Figueroa. In the course of a detailed allocution, the defendant acknowledged that the only promise made to him was that the sentence to be imposed was to run concurrently with the sentence fixed under the Figueroa manslaughter plea.
In response to the court’s request to describe the facts in his own words, the defendant admitted that "On April 9, 1977 I possessed a .357 Magnum pistol”, that the pistol was loaded, and that he possessed it in a taxicab.
*38Alleging that this plea was induced by fraudulent misrepresentations and omissions by the prosecutors, the defendant moved pursuant to CPL 440.10 (1) (b) to vacate the judgment in July, 1984 — more than six years after the plea was entered, after the defendant had completed service of his concurrent sentence, and more than four years after the defendant, and his counsel, became aware of the central fact relied on in this motion, and included that fact in a motion to preclude the use of the defendant’s plea in the Melendez murder trial, a motion that was denied by the court in an order that could have been appealed by the defendant following his conviction in the case, but was not in fact an issue raised on that unsuccessful appeal.
In his motion papers, defendant’s counsel alleged: "The ground for this motion is that Mr. Pilotti’s guilty plea was induced by fraudulent misrepresentations and omissions by the prosecutors which induced him to plead guilty. The misconduct in question took the form of withholding a critical document from the defense, which, had it been disclosed, would categorically have precluded Mr. Pilotti from pleading guilty and allocuting to the offense.”
As amplified in the affidavit of defendant’s counsel, the gun which Pilotti admitted possessing had been ballistically connected with the killing of Jose Melendez. The affidavit alleged that the District Attorney’s office intentionally withheld from the defendant the police report establishing this connection in order to induce Pilotti to plead guilty to possession of the gun so that the plea could be used against him in the Melendez murder trial. The Melendez case was tried during October and November of 1980, following the indictment of defendant and a codefendant, Louis Giongetti, that was filed on December 21, 1979.
The motion papers included an affidavit by Lawrence A. Dubin, the attorney who represented Pilotti at the time of the plea to possession of a gun. Mr. Dubin deposed that he had never received from the District Attorney, in response to his request for all DD-5’s and Brady material, a report establishing a ballistics connection between the gun and the Melendez homicide; that he was under the impression from material supplied to him by the District Attorney that the weapon was not connected with the commission of any other crime; that it would have been his practice in connection with a gun case where the police action was precipitated by a shooting to have asked the District Attorney if the weapon was connected to *39any crime other than the subject of the indictment; and that he was not told that it was so connected. Accordingly, he advised Pilotti to enter a plea of guilty "since no other issue existed” and Pilotti’s right to appeal from a denial to suppress the gun was preserved.
After a hearing, the court denied the motion to vacate the plea of guilty to possession of the gun, concluding as a "matter of law” that there was no fraud, and rejecting the defendant’s contention that he and his lawyer did not know that his gun had been ballistically matched with the Melendez homicide.
Although the record strongly supports the hearing court’s determination that Pilotti’s plea was not induced by fraudulent misrepresentations and omissions, the hearing court clearly erred in the finding that the defendant, and his then counsel, knew at the time of the plea that the gun had been ballistically connected with the Melendez homicide. The origin of this error is clear, it having resulted from the hearing court’s misinterpretation, an understandable one, of an excerpt of a transcript dated June 7, 1977, in which, in connection with Pilotti’s unsuccessful motion to withdraw his manslaughter plea in the Figueroa case, he asserted that prior to the plea the Assistant District Attorney originally assigned stated that he had been caught with a gun in his belt which had been ballistically connected with the Melendez homicide.
A study of the testimony of the homicide detective in the Melendez trial, not called to the attention of the hearing court, makes it clear that the District Attorney’s office did not learn of the gun’s ballistic connection to the Melendez homicide until almost two months after the statement attributed to the Assistant District Attorney.
Although not central to the issues that divide the court, let me note my emphatic disagreement with the conclusion in the court’s opinion that "it is plain” from the record that the Assistant District Attorney originally assigned falsely informed defense counsel, and presumably the Figueroa Trial Judge, who was clearly a party to the conversation, that the Pilotti gun was ballistically connected to the Melendez homicide before that connection was established. The record indicates at least six alternative explanations for Pilotti’s statements consistent with the Assistant District Attorney having truthfully informed counsel and the court of the facts surrounding Pilotti’s arrest that are individually and collectively far more probable than the inference accepted in the court’s opinion.
*40Pilotti (1) may have misunderstood that which was told him by his defense counsel, the words "connected” and "ballistically connected” having an obvious potential for confusion in this context, (2) may have inadvertently rephrased what his lawyer told him in a way that altered its meaning, and (3) may have deliberately misstated what he had been told, which would have been only one of a number of obviously exaggerated and deceptive statements that the defendant made in the course of his frantic efforts to vacate a plea of guilty to manslaughter which he had entered in the middle of the Figueroa trial only after two eyewitnesses had identified him as the killer. Alternatively, defense counsel (4) may have misunderstood what the District Attorney said to him and the Trial Judge, (5) may have inadvertently rephrased it in a way that altered its meaning, and (6) may have deliberately overstated what he had been told in an effort to persuade the defendant to accept a plea suggested by the trial court that would cover both homicides, and that would have saved the defendant from the significant prospect of a conviction for murder and a 25-year-to-life sentence.
If Mr. Dubin had been told by the defendant, his partner who was present at the hearing, or by his predecessor attorney that the Assistant District Attorney had made the statement asserted by the defendant, and if he believed that such a statement had been made, it is extremely hard to understand why he never testified to having discussed that significant statement with the defendant, and even harder to understand why he did not undertake to ascertain from the Assistant District Attorney originally assigned the truth of a statement contrary to his understanding of the situation on a matter alleged to have been of prime importance. In addition, it is manifestly unfair to the Assistant District Attorney originally assigned and his bureau chief to fault them for failing to respond to the defendant’s statement when the record clearly discloses that the court shut off any further discussion of the Melendez matter by saying that it was not before him, "and I don’t care what happened in that case”, and immediately proceeded to present a detailed chronology of the events leading up to the plea of guilty that concluded with his sentencing the defendant to the previously agreed sentence.
Because of the hearing court’s erroneous conclusion that Pilotti and his counsel were aware that the gun found in his possession had been ballistically connected to the Melendez *41homicide, it becomes necessary for this court to undertake a de novo examination of the record, and to make new findings.
The issues with which we are concerned on this appeal arise out of events that occurred in the early morning of April 9, 1977. On that morning, Pilotti, on bail and awaiting trial scheduled to commence in two days on an indictment charging him with the murder of Wilfredo Figueroa, was arrested for criminal possession of a gun and for homicide in connection with the fatal shooting of Jose Melendez. Because the strength of the evidence with regard to Pilotti’s possession of a gun on that morning is relevant to the motive to deceive attributed to the District Attorney’s office, it is appropriate to set forth in some detail the circumstances surrounding Pilotti’s arrest.
At about 9:30 in the morning, several witnesses heard shots fired from a green Pontiac station wagon bearing New York license plates 232 XDP, shots which caused the death of Jose Melendez, the occupant of another car. A license plate check quickly established that the Pontiac was registered to a woman living at 2517 Radcliffe Avenue. Police officers responded quickly to that address, reaching it within a few minutes. They there saw the green Pontiac station wagon bearing the license plate number reported by the witnesses. The building at that address was a three-story apartment house dwelling. The house was kept under observation for a period of 45 minutes.
The officers then saw a man stick his head out of the door to 2517 Radcliffe Avenue, looking in both directions before exiting. The man was quickly joined by two others, one of them the defendant. The defendant, dressed in formal clothing and wearing a white fur coat, walked past the Pontiac station wagon and into a cab, apparently one that had responded to a telephone call. His two companions walked in another direction. One officer approached the two men, later identified as Louis Giongetti, ultimately a codefendant in the Melendez murder case, and Alfred Peruso. A frisk of Giongetti disclosed a loaded .32 caliber revolver and a blackjack.
The second officer walked to the cab, went to the rear passenger door, which he opened, observed the defendant with his white fur coat on the seat next to him, and asked him to leave the vehicle. The defendant asked if he could get his coat, and was told not to touch anything and to step out, which he did. The officer escorted him to the front of the cab where they were met by members of a back-up unit. The officer then *42returned to the cab for the purpose of picking up defendant’s coat, and as he did so, felt a hard object under the coat, and found under it a loaded .357 Magnum revolver wrapped in a dishcloth, a gun with two empty chambers, and which ballistics evidence later determined had been recently discharged and was the weapon that had killed Melendez. All three men were arrested and charged with Melendez’ death, although Peruso’s arrest was "rescinded”, presumably after he informed the police that the defendant and Giongetti had been with him in the Pontiac station wagon, and that he had observed them with guns at a time that shots were fired.
At the Melendez trial the cab driver testified that, in accordance with his invariable practice, he had looked at the back seat after discharging his most recent passenger before the defendant and had observed no gun.
On April 11, 1977, defendant’s trial for the murder of Figueroa commenced with pretrial hearings. On April 15, after two witnesses had identified the defendant as Figueroa’s killer, he pleaded guilty to manslaughter in the first degree under a plea bargaining agreement which provided for a sentence of 11 to 22 years in prison.
On May 8, 1977, the defendant was indicted for the crime of criminal possession of a gun in connection with the events of April 9, 1977. From the evidence adduced in the subsequent Melendez murder trial, it is clear that, when the case was presented to the Grand Jury, the District Attorney did not know that the gun, for the possession of which Pilotti had been indicted, was ballistically connected with the Melendez homicide. It is also clear that Peruso had departed in his Grand Jury testimony from his postarrest statement, was indicted for perjury and absconded at a time not fixed in the record, and that he was missing at the time Pilotti entered his plea of guilty.
As already indicated, Pilotti entered his plea of guilty to the gun charge on February 28, 1978, some nine months after his indictment on that charge. Pilotti and Giongetti were indicted for the murder of Melendez on December 21, 1979, almost two years after Pilotti had entered his guilty plea. The record is clear that the Melendez murder case was presented to the Grand Jury only after the apprehension of Peruso and Giongetti, who had also absconded. Contrary to an impression suggested by parts of the record, the case was presented and the indictment voted before this court, on December 20, 1979, *43affirmed the denial of Pilotti’s motion to suppress the gun, and some months before the Court of Appeals denied his application for leave to appeal from that affirmance. (See, People v Dominick Pilotto, 73 AD2d 846, lv denied 49 NY2d 895, cert denied sub nom. Pilotti v New York, 449 US 870.)
Before detailing the relevant parts of the hearing evidence, some of which has a Rashomon-like quality, it may be helpful to set forth preliminarily the factual conclusions supported by the record, and also to discuss in a unified way, at the risk of some later repetition, two critical aspects of the record — the defense theory of deliberate misrepresentations by the District Attorney’s office, and contradictory testimony on a critical issue by the two principal witnesses, Mr. Dubin, the defense lawyer, and the Assistant District Attorney later assigned.
From a study of the hearing record, it is clear that the defendant, and his counsel, did not in fact know at the time the plea was entered, that the gun had been ballistically matched to the Melendez homicide. It is also clear that this misunderstanding was contributed to significantly by defense counsel’s receipt during the discovery process of two DD-5s (police reports), dated April 14 and 15, 1977, which reported no ballistics connection between Pilotti’s gun and shells found in a codefendant’s pocket, and no connection between that gun and ballistics evidence found at the scene of the homicide, and the failure of the District Attorney to turn over to defense counsel a DD-5 dated June 2, 1977, reporting that Pilotti’s gun was ballistically matched to a bullet found in the body of the deceased.
The record does not, however, support in any respect the defense contention that the failure to turn over the June 2 report was purposeful or part of a deliberate effort by the then Assistant District Attorney to deceive defense counsel. On the contrary, every relevant circumstance in the record, realistically considered, points inexorably to the conclusion that the failure to turn over the June report was not purposeful, but resulted from an inadvertent omission either by the Assistant District Attorney first assigned to the case, or by someone to whom the responsibility for assembling and turning over discovery material had been delegated.
The most likely explanation for the omission lies in the circumstance that the assigned homicide detective in the Melendez case first learned of the ballistics connection and prepared his report on June 2, 1977, some six weeks after the *44earlier reports, and almost a month after the indictment. Although not a matter of record, it is sufficiently a matter of public record to take judicial notice of the fact that for many years and during the time with which we are concerned, it was the policy of the Bronx District Attorney’s office to make a voluntary disclosure of those matters that the court would direct to be disclosed, and that such disclosure usually occurred on the day that the defendant was arraigned on an indictment, or shortly thereafter.
If the defense in fact received the April 14 and April 15 DD-5s, as the defendant alleges and I believe, that transfer most probably took place weeks before the District Attorney’s office learned of the ballistics connection. It would hardly be a remarkable departure from what we know of the human capacity for error for the Assistant District Attorney originally assigned, on learning of the belatedly established ballistics connection, to have focused on its implications for the prosecution of the Melendez homicide, and not to have appreciated that the information would be embodied by the homicide detective in a report clearly related to those previously turned over, and that he should forward that report to the defense counsel. What would be a remarkable departure from normal behavior would be for the Assistant District Attorney to seize on this belatedly received information as an opportunity to deceive the defense into agreeing to a plea that was in fact entered some nine months later, to secure the acquiescence of his bureau chief in that deception or to have concealed it from his bureau chief, and to have thereafter recruited the Assistant District Attorney assigned to the case on the eve of the suppression hearing into becoming a participant in the deception.
That what occurred here was inadvertent human error of a kind that occurs all too often in every area of human experience and did not involve purposeful deception is supported by a host of circumstances to be discussed hereafter, and is convincingly confirmed by direct, highly probative testimony, the probative value of which is enhanced by the likelihood that the witness did not appreciate its significance.
The Assistant District Attorney assigned to the case by his bureau chief only a few days before the plea was entered because the Administrative Judge had insisted that the case proceed promptly and the Assistant District Attorney originally assigned was then unavailable, testified that he was told by the Assistant District Attorney originally assigned that all *45of the police reports had been turned over to defense counsel. Accepting this testimony as reliable, and there are compelling reasons to do so, it directly establishes that the originally assigned Assistant District Attorney not only did not intentionally withhold the June report, but that he had been acting for some time in the belief that defense counsel had received all of the relevant police reports. It is surely not a plausible hypothesis that he deliberately withheld the June police report to deceive defense counsel, and then undertook to deceive the assistant thereafter assigned to the case.
Turning directly to the defendant’s main thesis of purposeful deception, the fact must be squarely faced that defendant is accusing at least two Bronx Assistant District Attorneys, and almost certainly a third, the chief of the Homicide Bureau, of professional misconduct of a grave character. It would not be a minor professional lapse for Assistant District Attorneys to undertake a concerted effort persisting over many months to deceive a defendant into pleading guilty to possession of a gun in order to use that judicial admission in the prosecution of a homicide indictment filed thereafter.
There are two quite remarkable aspects to defendant’s claim. The first is the highly risky character of the misconduct attributed to at least two, and more likely three Assistant District Attorneys, in relationship to the benefits that they could have anticipated. The second is that the motivation attributed to the Assistant District Attorneys for this misconduct is irreconcilable with the alternative plea bargain in fact offered to the defendant, one alternative providing for a plea to cover the Melendez homicide with a 21A- to 5-year consecutive sentence, it manifestly being in the interest of the District Attorney with respect to the alternative plea clearly preferred by them that the defendant know that the gun found in his possession was ballistically matched to the homicide.
A striking aspect of the misconduct alleged is that those charged with participation could not reasonably have expected to reap its fruits without the nature of their deception becoming known, and becoming a subject of challenge in court. Inherent in the misconduct charged is the certainty that the defendant and his then counsel (quite possibly the lawyer who represented him on the gun case), would learn of the deception leading to the gun plea before it could be used as presumably intended in the prosecution of the Melendez murder, and at a time when the defendant and his counsel would have the strongest motivation to expose the deception that *46had been practiced on them, in an effort to preclude the use in any way of the gun plea in the Melendez murder trial. Nor could the Assistant District Attorneys have any assurance that defense counsel, accurately described by the Hearing Judge as an experienced and respected lawyer, would not have made contemporaneous memoranda detailing the representations that had been made to him. Indeed, the Assistant District Attorneys could have had no assurance at any time during the months that intervened between the discovery process and the entering of the plea, that their plans would not be effectively forestalled, and their misconduct discovered even before the plea was entered, by defense counsel noting on the record at the time of the plea, his understanding, and the basis for his understanding, that the gun was not connected with the Melendez homicide.
And to what end did the Assistant District Attorneys undertake this highly risky course of professional misconduct? The motivation attributed to them was the desire to use the defendant’s gun plea during the Melendez murder trial to confirm the fact that Pilotti was in possession of the murder weapon. But as the facts surrounding Pilotti’s arrest make clear, the evidence of his possession of the gun was overwhelming, and could not possibly have given rise to any flicker of anxiety as to that element of the homicide case on the part of the most fearful and pessimistic trial assistant. So strong was the evidence of Pilotti’s possession of the gun, that Mr. Dubin, testifying at the hearing as to the strategy that he would have pursued if the gun case had gone to trial, stated that he would have interposed the defense of "transitory possession”, surely a defense of desperation under the circumstances, but one that confirms the reality that no competent lawyer concerned with the matter could have doubted that a jury would have been convinced from the evidence that Pilotti had in fact possessed the gun.
The implausibility of the defendant’s thesis is further underlined by the fact, incontrovertibly established, that the District Attorney’s office’s decision not to indict Pilotti for the Melendez murder at that time was wholly unrelated to any fears concerning the adequacy of the proof of his possession of the murder weapon. What the contemporaneous memorandum of the later assigned Assistant District Attorney to his bureau chief establishes is that the Homicide Bureau chief, at the time of the plea to possession, was of the opinion that additional evidence connecting Pilotti to the Melendez murder, *47wholly apart from evidence establishing Pilotti’s possession of the murder gun, was required before he could successfully be prosecuted, and that there was no assurance that such evidence would be forthcoming. The primary hope at the time for securing such additional evidence related to locating Alfred Peruso and inducing him to testify in accordance with his statement to the police. It was for this reason that Pilotti and his codefendant were not indicted in the Melendez homicide until December 21, 1979, after the apprehension of Peruso and the codefendant.
It is of no moment to the issue presented that Peruso ultimately proved to be an uncooperative witness. What is quite clear is that at the time Pilotti’s gun plea was entered, the District Attorney’s office did not intend to proceed with his prosecution for the Melendez murder unless additional evidence was obtained — evidence which they had no assurance of securing.
In short, the defense thesis of fraudulent misrepresentation requires it to be accepted as probable that two or more Assistant District Attorneys undertook a highly risky course of professional misconduct that was certain to be exposed prior to reaping its intended fruits, and likely to become the subject of a motion, in order to secure additional evidence on an issue as to which the evidence in the District Attorney’s possession was conclusive, for use in a homicide prosecution that the bureau chief did not then intend to pursue unless evidence connecting Pilotti with the homicide, other than his possession of the murder gun, was obtained.
What makes the defense thesis even more implausible is the reality that from the standpoint of the alternative plea bargain proposed by the District Attorney’s office to defendant, it was important to the District Attorney that the defendant and his counsel know that Pilotti’s gun was ballistically connected to the Melendez homicide. The proposed plea bargain was in the alternative — 2 Vi to 5 years to run consecutively to the Figueroa sentence if the plea covered the Melendez homicide, and 2 Vi to 5 years to run concurrently with that sentence if it did not.
From an examination of the contemporaneous memorandum of the later assigned Assistant District Attorney to his bureau chief, and on any realistic view of the record, it is clear that the Homicide Bureau chief preferred that the defendant accept the proposed plea covering the Melendez *48homicide case, in the absence of the additional evidence which he then had no assurance would be acquired. From the standpoint of this preferred alternative, it was important that defense counsel know that the Pilotti gun had been ballistically connected with the homicide, and that there was a real possibility that he might ultimately be successfully prosecuted for that homicide. It makes no sense at all to believe that the Assistant District Attorneys engaged in purposeful misconduct to withhold from defense counsel information that they would have wanted him to have in order to accomplish the plea bargain that was clearly preferred by their bureau chief.
Turning to the testimony of the principal witnesses, Mr. Dubin, defense counsel, and the Assistant District Attorney later assigned, we are confronted with a direct, and perplexing contradiction between them on an issue of central importance. The Assistant District Attorney testified that at one point during plea discussions Mr. Dubin made it clear that he knew that Pilotti’s gun had been ballistically connected to the Melendez homicide. In turn, Mr. Dubin testified that the Assistant District Attorney explicitly told him that there was no report establishing a ballistic connection between the gun and the homicide. Although a study of the record is persuasive that both witnesses testified throughout truthfully in accordance with their best recollection, it seems equally clear that the testimony of both on this point was inaccurate.
On any realistic consideration of the evidence, it is clear that Mr. Dubin and his client did not know of the ballistics connection. In addition to other factors not necessary to detail, it is not plausible that Mr. Dubin, if he had known of the ballistics connection, would have permitted his client to enter a plea to the gun charge that did not cover the Melendez homicide without having secured on the record the defendant’s acknowledgement that he had been so informed. It is almost equally implausible that the defendant, if he had known of the ballistics connection, would not have opted for the alternative plea covering the unindicted Melendez homicide for a consecutive sentence of only to 5 years.
On the other hand, for reasons already set forth at length, it is equally inconceivable that the Assistant District Attorney just assigned to the gun case and the bearer of a plea offer from his bureau chief covering an unindicted homicide — an offer whose acceptance was clearly preferred by his bureau chief to the plea that was in fact entered — would have deliber*49ately withheld from defense counsel the information that would have facilitated acceptance of the preferred plea.
What a close study of the relevant testimony strongly indicates is that the inaccurate testimony on this point by both witnesses was not the result of one or the other, or both, intentionally giving false testimony, but rather resulted from a not uncommon trial phenomenon in which witnesses testifying to long-past events remember in good faith as having actually been said that which they believe to have been intended, interpretations which in this case were distorted by a fundamental misunderstanding between the two that is central to an understanding of this case. Having been told by the Assistant District Attorney originally assigned that all of the police reports had been turned over to defense counsel, the Assistant District Attorney later assigned clearly assumed throughout his conversations with Mr. Dubin that Dubin knew of the ballistic connection, although he in fact did not. When the testimony of both witnesses is analyzed in the light of this fundamental misunderstanding, it becomes clear how each misunderstood the meaning of what the other said and came to recall many years later the other as having said something that was not in fact said.
Before specifically analyzing the directly contradictory parts of their testimony, consideration of another aspect of the testimony is important to an understanding of what occurred.
In evaluating the testimony of the two, it is critical to bear in mind that both were testifying with regard to events of a routine character in their professional lives that had occurred some seven years earlier, Mr. Dubin testifying without the benefit of any contemporaneous notes to refresh his recollection. Lapses in memory under such circumstances were inevitable, and the record discloses such lapses on the part of both.
The most significant lapse clearly demonstrated by the record, and one of considerable importance, was Mr. Dubin’s inaccurate recollection that his client’s plea included a consecutive 2 Vi- to 5-year sentence, and his accompanying total failure to recall the alternative plea bargain that had been offered by the District Attorney, his own recommendation to his client to accept the option to cover the Melendez homicide with a consecutive sentence, and his client’s rejection of that advice. Because of the importance of the events which he forgot, and their intimate relationship to events involved in the testimony with which we are concerned, the possibility is *50clearly presented that his memory was flawed as well in the testimony by him described above. This possibility is clearly supported by the fact that in his affidavit prepared the year before, Mr. Dubin disclosed no recollection of the conversation with the Assistant District Attorney later assigned to which he testified at the hearing, and is further supported by the detailed testimony of his client who conspicuously did not testify that his lawyer had reported an explicit statement by the District Attorney that negated any ballistics link between the gun and the homicide. Although these circumstances would justify rejection of this part of Mr. Dubin’s testimony as insufficiently reliable, there is some reason to believe that his testimony may well have reflected in part an accurate recollection of the conversation, followed by Mr. Dubin’s attributing to the Assistant District Attorney later assigned explicit statements that were not in fact made, that reflected Mr. Dubin’s mistaken interpretation of the meaning of what was said.
Turning to the conflict in testimony described above, it is a matter of common experience, as already noted, that the most conscientious witnesses testifying to events that occurred many years before find it difficult, if not impossible, to separate their memory of what was actually said from their recollection of the meaning of what was said. A study of the testimony of both men strongly suggests how the fundamental misunderstanding described above contributed to a misinterpretation by each witness of the meaning of the other’s statements.
Addressing first the testimony of the Assistant District Attorney later assigned, his most detailed and specific account of his conversation with Mr. Dubin occurred in response to the court’s question as to whether he told Mr. Dubin, and Mr. Dubin was aware, that the gun was involved in the homicide. The witness answered as follows: "Once he told me that. Mr. Dubin told me that, outside Part 19, because he was concerned that Mr. Pilotti would not be covered in the unindicted case and he was concerned with that and he kept urging him to do it, strike the best plea bargain because that was the thing to do and Mr. Pilotti would not go along for whatever reason, and so Mr. Dubin told me this your honor. I didn’t have to tell him. He told me this, that he was aware of it and he knew that if we ever came up with this witness — I don’t know if he knew who the witness was or not — that we could ultimately indict him, which apparently did happen.”
*51What becomes clear from this detailed answer is that from the standpoint of the Assistant District Attorney later assigned, who had been told that Mr. Dubin had all the police reports, Mr. Dubin’s dismay at his client’s failure to accept the plea covering the homicide necessarily conveyed his knowledge that the gun had been ballistically connected. From the perspective of Mr. Dubin, who did not in fact know of the ballistics connection, it is clear, and indeed reflected in the quoted testimony of the Assistant District Attorney later assigned, that he was fearful that the District Attorney might eventually locate Peruso and induce him to testify, and that his client was foolish not to preclude that possibility. Indeed, it would seem likely that Mr. Dubin viewed the 2 Vi- to 5-year consecutive sentence offer — an extremely light sentence for what appears to have been a planned killing — as confirming that the gun had not been ballistically connected.
A quite similar process may be observed in that part of Mr. Dubin’s testimony in which he gave his most detailed account of the circumstances under which he was told by the Assistant District Attorney later assigned that there was no ballistics connection. Asked by defense counsel what he and the District Attorney said to each other about the match or nonmatch, he testified as follows: "In sum and substance, I mean this is going back some eight years, I asked whether there was a connection between the weapon that was recovered from the taxi cab that Pilotti had been arrested in and the Melendez gun, and I was told, in substance, that there was no connection. There was no ballistic report in existence or there was no other and there was, in fact, no other evidence tying that gun to the homicide, the murder weapon in the homicide case.”
What is obvious from Mr. Dubin’s testimony is that the question he asked, as he recalled it, in his most specific statement on the issue, did not in fact have the meaning that he retrospectively attributed to it. He did not ask the District Attorney whether the Pilotti gun was matched with the Melendez homicide. As recalled by him, he asked whether there was a connection between the Pilotti gun and the Melendez gun. But Melendez in fact had a gun. To an Assistant District Attorney who believed that Mr. Dubin was aware of the ballistics match, the question would naturally have conveyed an inquiry as to whether there was information connecting in other criminal activities two guns that were involved in the Melendez case, and the answer testified to would have been accurate. Yet, it was clearly on the basis of *52the answer to this question as remembered by Dubin, that he apparently concluded that the Assistant District Attorney later assigned had denied the existence of any report establishing a ballistics match.
Indeed, from an examination of his entire testimony it seems clear that Mr. Dubin never directly put to the Assistant District Attorney later assigned a question that would have alerted him to the fact that Dubin did not know of the ballistics match, and that the curiously oblique question as remembered by him in fact fairly characterized his discussions with the Assistant District Attorney. The reason for this omission, it may be reasonably surmised, lies in the obvious fact that a direct question as to whether or not the gun had been ballistically matched to the Melendez homicide would have constituted an acknowledgement that his client knew that the gun had been fired during the Melendez homicide, since there would otherwise have been no plausible reason for any concern on that point.
Although the foregoing discussion embraces much of the critical testimony at the hearing, it will nevertheless be helpful to a full understanding of the issues presented to develop in further detail the testimony of the principal witnesses at the hearing, Mr. Dubin and the defendant on the one side, and the Assistant District Attorney later assigned on the other.
Although understandably uncertain in his memory of much that occurred, Mr. Dubin recalled that he had many discussions with the defendant about the weapon and the weapon’s possible relation to the homicide. He recalled that in the normal course of his representation motions had been made for discovery material, including DD-5s and ballistics reports, but was not clear as to whether or not such discovery material was secured as a result of court order or through a voluntary agreement with the District Attorney’s office. In testimony that both reflects the understandable uncertainty of his memory and his scrupulous efforts to be truthful, Mr. Dubin testified that he believed, but was not certain, that he had seen the April ballistics reports, conscientiously accompanying each of his answers to questions with regard to those reports with the qualification that he was not certain that he had seen them. He was, of course, emphatic that he had never seen the report of June 2, 1977.
From his testimony it is apparent that just before the plea *53was entered and at a time that it was being considered, the defendant expressed an urgent concern about the weapon and its connection with the Melendez homicide, and directed him to determine whether there was a connection of any sort whatever. It is also clear from Mr. Dubin’s testimony as well as that of the defendant himself, although he of course did not so testify, that the defendant’s concern about the ballistics connection was based on the defendant’s precise knowledge that the gun had in fact been discharged during the Melendez homicide, there being no plausible reason as to why there should otherwise have been such concern. It was on the basis of defendant’s concern while they were considering the plea offer that Mr. Dubin recalled having the conversation with the Assistant District Attorney later assigned that was quoted and considered previously.
On the question of whether or not that Assistant District Attorney explicitly told Mr. Dubin that there was no ballistics connection, Pilotti’s testimony is particularly helpful. The defendant had a very detailed recollection of having seen the April 1977 reports and of having discussed them at length and repeatedly with his lawyers, and recalled quite clearly his lawyers’ assurances to him on the basis of those reports that there was no ballistics evidence connecting the gun found in his possession with the homicide. In what may fairly be considered a significant omission, considering the specific and detailed quality of his recollections, he never testified to being told by defense counsel that the Assistant District Attorney had explicitly denied the existence of any ballistics match, even though it seems likely that he would have remembered such a statement.
The Assistant District Attorney, whose testimony was clearly refreshed in part by a memorandum that he had submitted to his bureau chief shortly after the plea, testified to the circumstances under which he was assigned to the gun case, at least for the purposes of the suppression hearing, shortly before the plea was entered. He testified that he was aware that the gun was connected with the Melendez homicide, and that in a discussion with the Assistant District Attorney originally assigned he was told that the defense had received everything in the file by way of police reports.
He recalled that in plea discussions Mr. Dubin indicated that Pilotti had not previously wanted the unindicted Melendez homicide to be covered, but that Mr. Dubin believed this to be a dangerous course of action and invited from him a plea *54offer that would cover the unindicted homicide. In a discussion with his bureau chief, the Assistant District Attorney later assigned was authorized to offer a plea to the gun to cover the Melendez homicide, with the defendant to receive a 2 Vz- to 5-year sentence to run consecutively to the sentence that had been imposed on the Figueroa manslaughter plea. The reason given by the bureau chief for this offer was that there was a missing witness in the Melendez case who might never be found, and that under the circumstances the disposition seemed to him appropriate.
As recalled by the Assistant District Attorney later assigned, Mr. Dubin favored the plea, but he thereafter informed him that his client, against his strong recommendations, had decided not to cover the case and was confident that they would never be able to prosecute him successfully for the Melendez homicide. Mr. Dubin said his client was willing to take a plea to criminal possession of a gun with a concurrent 2 Vi- to 5-year sentence. Thereafter, a suppression hearing was held resulting in a denial of the motion to suppress, and the plea was entered.
The facts testified to by the Assistant District Attorney later assigned are essentially in accord with the memorandum prepared by him to his bureau chief shortly after the plea was entered. The memorandum reported Mr. Dubin’s own preference that his client accept the plea that would cover the unindicted homicide, but that Mr. Dubin’s client had refused to do so. The memorandum clearly sets forth the judgment of the bureau chief that the defendant could not successfully be prosecuted for the Melendez homicide notwithstanding his possession of the murder gun, in the absence of other evidence connecting him with the homicide.
The memorandum further describes the later assigned Assistant District Attorney’s concern that even if such additional evidence were to be secured and the suppression ruling were to be sustained, a double jeopardy issue might well be raised at any trial of the defendant for the Melendez homicide because of the separate disposition of a gun that had been ballistically connected to the homicide. Parenthetically, it is of some interest that such an issue was in fact forcefully raised in motion papers submitted on behalf of the defendant during the Melendez prosecution.
It was in relation to the later assigned Assistant District Attorney’s concern about this possible double jeopardy issue *55arising out of a separate disposition of a gun ballistically connected to the Melendez homicide that he added a statement, the meaning of which has been severely distorted by the defendant on this appeal. He wrote: "Good faith and the argument that we attempted to prove the homicide b[y] bootstrapping the gun charge may very well be a case of first impression in this State.” It makes no sense at all to interpret this sentence as an indirect reference to a course of deception having been practiced by the writer of the memorandum, presumably with the knowledge and approval of the bureau chief.
When the evidence is reviewed as a whole, and realistically, the conclusions previously set forth are solidly sustained. The defendant and his lawyer did not in fact know that the gun had been ballistically linked to the Melendez homicide, and this misunderstanding was in large part contributed to by an inadvertent error in providing the defense with discovery material that omitted the June report establishing the ballistics link. For the reasons set forth earlier, the evidence is equally persuasive that this omission was inadvertent, and not part of a purposeful effort to deceive the defendant into entering a plea of guilty to possession of the gun.
A question naturally raised by the foregoing factual conclusions is whether the defendant is entitled under CPL 440.10 (1) (b) to vacatur of the judgment of conviction entered on his plea of guilty on the ground that omissions by the District Attorney, although not intended to mislead defendant or his counsel, in fact misled them with regard to a circumstance material to the plea that was entered. Although this theory was not advanced by the defendant in his motion papers, at the hearing, or on this appeal, perhaps because of counsel’s belief in its lack of merit, it requires discussion. Under the circumstances presented, it is clear that defendant is not entitled to the relief he seeks.
CPL 440.10 provides in pertinent part:
"1. At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that * * *
"(b) The judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor”.
Central to an understanding of this section are the words that permit the motion to be made "at any time after the *56entry of a judgment”. Considered in light of that critical aspect of the section, it is hard to believe that the word "misrepresentation” in subdivision (1) (b) was intended to authorize vacatur of a judgment of conviction based on a plea of guilty, without any limitation of time, on the basis of inadvertent acts or omissions by a District Attorney that, although not intended to do so, misled the defendant as to a possible consequence of his plea of guilty, where the nature of the defendant’s understanding, and his reliance on it, is not set forth on the record. (Cf., People v Ramos, 63 NY2d 640; People v Frederick, 45 NY2d 520, 525; People v Selikoff, 35 NY2d 227.) The correctness of this construction is strongly confirmed by subdivision (1) (c) which immediately follows the subdivision with which we are concerned.
Subdivision (1) (c) permits a judgment of conviction to be vacated where: "Material evidence adduced at a trial resulting in the judgment was false and was, prior to the entry of the judgment, known by the prosecutor or by the court to be false”. Significantly, this subdivision permits vacatur of the judgment of conviction only where material evidence was known by the court or the prosecutor to be false, not where the prosecutor or the court should have known that it was false, or would have known that it was false in the exercise of reasonable care.
It is difficult to envisage any proposition more likely to undermine finality of judgments of conviction based upon a plea of guilty, the importance of which was reaffirmed by the Court of Appeals in People v Ramos (supra), than one that would permit, without time limitations, such judgment of conviction to be challenged on the basis of claims that a prosecutor had inadvertently misled defense counsel on some circumstance relevant to the plea, but one that was not made part of the record at the time of the plea.
Nor is the situation before us one in which a sense of justice would invite the court to strain the meaning of the statutory language in order to achieve a just result. No doubt there may be situations in which the interests of justice would strongly support vacatur of a plea influenced by unintentional conduct by a District Attorney that misled a defendant on a matter material to the plea. This is emphatically not such a case. The interests of justice here point strongly in favor of denying the motion to vacate.
In considering the plea that was here entered, it is clear *57that there exists no suggestion whatever, nor could there under the facts set forth above, that the defendant was not in fact guilty of the crime to which he pleaded guilty. Nor is there any suggestion that the concurrent sentence imposed was oppressive or the result of a broken promise.
The single contention is that the defendant, and his counsel, were unaware that the entered plea might be used against the defendant in a homicide prosecution thereafter brought against the defendant. But the record discloses that defendant and his counsel became aware, following his indictment for the Melendez homicide, that in a police report of June 2, 1977, the gun which he admitted possessing had been ballistically connected with the Melendez homicide, and that the District Attorney had failed to turn over that report to him although earlier police reports appearing to negative the gun’s connection with the homicide had been made available. Accordingly, the defendant was in a position prior to his trial in the Melendez case to move to preclude the use of his plea of guilty against him in that trial, and thereby to avoid the consequences of whose possibility he was unaware at the time of his plea.
As the record makes clear, the defendant in fact moved in March 1980 to preclude the use of his prior plea against him in a motion which relied on the withholding of the June report, together with other grounds. The order denying that motion could have been raised as an issue by defendant on his appeal from his conviction of murder in the Melendez case, but it was not. The fact that defendant did not couple his motion to preclude the use of his plea in the Melendez case with a specific request that the plea be vacated surely does not entitle him now, more than four years later, to relitigate an issue which he had opportunity to litigate at the time when it was critical that he do so, and which he in fact did litigate, in what is transparently a circuitous effort to provide a basis for a new challenge to the Melendez conviction on an issue that was already determined. Indeed, even if the omissions of the District Attorney were considered sufficient to authorize a court to vacate under CPL 440.10 (1) (b), this would seem emphatically a case in which the court should exercise its discretionary power under CPL 440.10 (3) (b) to deny the motion because ”[t]he ground or issue raised upon the motion was previously determined on the merits upon a prior motion or proceeding in a court of this state.”
Moreover, on any realistic view of the facts, it is free from *58doubt that the defendant was in no way prejudiced in the trial of the Melendez case by the plea that had been entered. Notwithstanding the court’s denial of his motion to preclude the plea, the trial assistant in the Melendez case did not use the plea in his direct case, and stipulated that if the defendant testified he would not use the plea unless the defendant specifically denied the facts that he admitted at the time of his plea. Under the stipulation, defendant could have taken the stand and testified in support of his theory of transitory possession of the gun, the theory Mr. Dubin would have pursued if the gun case had gone to trial, without any fear that he would have been confronted with the fact of his plea. More plausibly, he could have testified that he had received the gun from someone else after the homicide for whatever purpose.
It is highly unrealistic to suppose that there was the remotest possibility that, except for the threatened use of the gun possession plea, the defendant, convicted of at least two felonies other then the gun possession case, one of them the Figueroa homicide, would have taken the stand and testified either that the police planted the murder weapon on him, or that the Melendez murder weapon mysteriously appeared on the back seat of a cab that had responded to his telephone call.
The controlling realities are that the defendant was in fact guilty of the crime to which he pleaded guilty, a fact established not only by the evidence adduced at the suppression hearing, but confirmed by his own testimony and that of his lawyer as to his concern about any ballistics connection of the weapon to the Melendez homicide; that the concurrent sentence that he received was more than generous; that the critical facts underlying the motion were known to the defendant and his counsel prior to the trial of the Melendez case; that the issues raised on this motion could have been raised at that time and before any possible use of his guilty plea against him at that time, and were in fact included in part in a motion to preclude any such use; and that the plea he entered did not contribute by a featherweight to defendant’s conviction of murder in the Melendez case.
Accordingly, the order of the Supreme Court, Bronx County (Lawrence J. Tonetti, J.), entered October 21, 1985, denying defendant’s motion to vacate the judgment of conviction and the 2 Vi- to 5-year sentence as a second violent felony offender rendered against him on his plea of guilty to criminal posses*59sion of a weapon in the third degree on February 28, 1978, should be affirmed.
Kassal and Ellerin, JJ., concur with Fein, J.; Sandler, J. P., and Carro, J., dissent in an opinion by Sandler, J. P.
Order, Supreme Court, Bronx County, entered on or about October 21, 1985, reversed, on the law, and the motion to withdraw the plea and vacate the sentence is granted.