(concurring) :
This is an exceedingly close case. I agree that Gramando’s denials of having been made any promises for testifying, as distinguished from revealing information about the Rubin murder, were not shown to have been literally false, and that responsibility for failing to develop what now turns out to have been the full story with respect to the dismissal of the gun charge against Mrs. Gramando lay primarily with defense counsel who was mainly interested in attempting to show promises as yet unperformed, particularly in relation to the two murder charges against Gramando. I am also willing to accept the interpretation of the prosecutor’s denial of “promises” that was made by the judge who heard the coram nobis application, People v. Romeo, 27 Misc.2d 772, 777, 210 N.Y.S.2d 431, 437 (Ct.Gen.Sess. N.Y.Co.1961), and was adopted by Mr. Justice Valente dissenting in the Appellate Division, 16 A.D.2d 240, 246-247, 226 N.Y.S.2d 957, 963-964 (1st Dep’t 1962), namely, that this related to promises in relation to the pending murder indictments against Gramando. Furthermore as Judge Anderson points out, we can never know whether the prosecutor would not have revealed the executed promise with respect to Mrs. Gramando if defense counsel had not twice interrupted him. This leaves only the prosecutor's correct but incomplete statement in summation that “the Grand Jury, not the District Attorney, voted no bill” against Mrs. Gramando.
If this were an appeal from denial of a motion for a new trial after a federal conviction, I might well favor reversal because of the prosecutor’s failure to come completely clean and the consequent hazard that the jury could have thought he had made no promise at all to have the gun charge against Mrs. Gramando dismissed, even though they knew that Gramando had asked for help about this and that the charge had been dismissed after Gramando talked but before he testified. Under such circumstances the danger, even a slight one, that a possibly innocent man might be wrongly imprisoned for life would outweigh the cost and delay incident to a new trial in which the jury would have the full story. See United States v. Miller, 411 F.2d 825 (2 Cir. 1969). But this case comes to us twenty-three years after a state court trial, and issuance of the writ would be equivalent to an order for the release of a defendant there convicted of murder on sufficient although surely not overwhelming evidence. Moreover, the facts with respect to the alleged prosecutorial misconduct have been painstakingly reviewed by a General Sessions judge, the Appellate Division for the First Department, and the Court of Appeals which unanimously sustained the Appellate Division dissenters, 12 N.Y.2d 751, 234 N.Y.S.2d 224 (1962), as well as by a federal district judge. The New York and the federal legal standards on the subject here at issue are in no way at odds; indeed Judge Fuld’s opinion in People v. Savvides, 1 N.Y.2d 554, 154 N.Y.S.2d 885 (1956), was the path-breaker on which the Supreme Court relied in Napue v. Illinois, 360 U.S. 264, 269-270, 79 S..Ct. 1173 (1959). Any difference between us and the New York courts would thus be in appraising just how far the prosecutor departed from what are now considered the governing standards and what impact this could have had upon the jury. I have no such sense of infallibility as to set any views of mine against a unanimous Court of Appeals under the circumstances presented here. Whether Romeo might be a worthy candidate for relief of a different sort is not for us to say.