(concurring) :
I find the dissenting opinion of Chief Judge Fuld of the New York Court of Appeals, 18 N.Y.2d 162, 177, 272 N.Y.S.2d 753, 763, 219 N.E.2d 274 (1966), most persuasive. I, with him, believe that it is possible that the jury might have reached a different verdict if the testimony Dagmar Generazio gave at the post-trial hearing had been presented at the trial. Nevertheless, I recognize that petitioner was convicted in the New York state courts and not as a result of a federal prosecution, and as we are not therefore writing upon a clean slate I am willing to concur in the affirmance of the decision below.
It appears that before the state felony trial the defense knew of Dagmar’s existence and of the possible importance of her testimony. The defense, despite this knowledge, did not exert itself to seek her out and interview her. This failure on its part to exercise a reasonable diligence in trial preparation should bar us in this collateral proceeding from ordering petitioner’s release or ordering the grant of a new trial based upon truly newly discovered suppressed' exculpatory evidence.
Even though the office of the prosecutor was in constant touch with Dagmar during crucial days of investigation and trial as shown by the records of the telephone company, I would not go so far as to hold that this interrogative surveillance requires us to overturn this state *24court conviction upon a consideration of likely inferences that may be drawn from Dagmar’s post-trial testimony. I agree with my brothers that we should not hold that there was a New York state prosecutorial suppression here; the defense was not unaware of Dag-mar; she was not deliberately made unavailable to the defense; and no specific request was made by defense counsel for a direct lead to her whereabouts.