(dissenting) :
I agree with the majority that the so-called suppression of a- second show-up of Whitmore constitutes no basis for federal action here. The State has already conducted a post-trial evidentiary identification hearing at which Mrs. Borrero testified and was cross-examined. There is no new evidence and no suppression.
The alleged suppression of the existence of an eyewitness to the assault on Mrs. Borrero, in my view, presents a compelling ground for the holding of the evidentiary hearing denied the appellant by the court below.
Appellant urges here, as he did in the district court, that it was not until the Spring (March-May) 1969 post-trial evidentiary hearing that counsel for Whit-more ever learned that there was an eyewitness to the assault on Mrs. Borrero. It was then ascertained that Detective Aidala who was in charge of the Minnie Edmonds’ murder investigation and took over the Borrero case because of a possible similarity of modus operandi, kept a notebook which indicated that Celeste Viruet, the sister-in-law of the victim, had seen her being grabbed in the early morning of April 23, 1964 while looking out of her apartment window. Counsel for Whitmore in all three Borrero trials have submitted affidavits denying that they ever knew of or were advised of the existence of Celeste Viruet, the silent witness in the window. Celeste Viruet was never called by the State in any of the trials nor has she ever appeared in any evidentiary or other proceeding relating to Whitmore. The State makes no contention that defense counsel was ever specifically advised of the existence of this witness. The State only claims that the notebook of Detective Aidala was made available to counsel for Whit-more when he was being defended on the charge of murdering Minnie Edmonds. The record does not at all establish that even in this other case where counsel’s concern was for a different *372crime, all pages of the notebook were made available. This is a disputed fact and no evidentiary hearing has ever been conducted on this question in any State proceeding.
In this case Whitmore’s guilt ultimately rested solely upon the identification by the victim. The significance therefore of an eyewitness to the crime in the preparation of Whitmore’s defense is obvious. See Roviaro v. United States, 353 U.S. 53, 64, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).
There are disputed questions of fact here which have never been determined in any State court evidentiary hearing. The existence of Celeste Viruet was disclosed in the Spring, 1969 evidentiary hearing after Whitmore had been convicted. However, the question to be determined in that proceeding was whether the one-man show-up of Whitmore tainted Mrs. Borrero’s subsequent in-court identification. Hence, Judge Helfand was not concerned about the role of Celeste Viruet.
The Court: I permitted you to go far afield about the business of the sister-in-law. I am going to exclude any further questions about it.
She was not a witness before me and whether he interviewed her or did not interview her or she gave him certain information, has some slight bearing on the issues here.
Q. Did Mrs. Borrero tell you that her sister-in-law saw-—
The Court: No, that is excluded; I don’t care what she told her. It is excluded. Now go to something new. Enough about the sister-in-law.
Mr. Beldock: Yes, your Honor.
(Transcript of hearing at 522, 523).
Subsequently, Whitmore moved to dismiss the indictment on the ground of the suppression of this evidence. This motion was denied by Judge Helfand by order dated December 30, 1969, without a hearing. Under the circumstances, an evidentiary hearing is mandated in the federal district court:
Where the facts are in dispute, the federal court on habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.
Townsend v. Sain, 372 U.S. 293, 312-313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963) (footnote omitted); see 28 U.S.C. § 2254(d).
The majority here seeks to avoid Townsend v. Sain by finding that the new evidence of the eyewitness does not bear upon “the constitutionality” of Whitmore’s detention nor is it “crucial” since in any event her testimony would not help Whitmore but would in fact strengthen the State’s case against him. Neither proposition is tenable. The claim here is not that the defendant didn’t know about an eyewitness to the crime but rather that the State knew and deliberately suppressed and concealed her existence from the defense. This is unquestionably of constitutional magnitude. Brady v. Maryland, 373 U. S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The argument of the State adopted by the majority here that we can disregard Celeste Viruet’s existence because her testimony would have only hurt the defense and helped the State, has to be rejected. The description in Aidala’s notebook while not accurately describing Whitmore, has only the virtue of being more accurate than that contained in the original police alarm which was presumably supplied by Mrs. Borrero. We don’t even know for sure if the description in the book was supplied by Celeste Viruet since Aidala wasn’t positive that *373he had even interviewed her.* In any event what the lady in the window saw and what she might testify to, is not known since she has never appeared in any proceeding to date. The fact that there was another eyewitness not called by the State in a case which in substance depended primarily upon Mrs. Borrero’s identification of her assailant, cannot be disregarded.
Having taken a position that the evidence of Celeste Viruet would be somehow “favorable” to the State, the majority concludes “we need not consider appellant’s claim that the evidence here was suppressed by the prosecution.” However, a federal court’s task is to determine both materiality of the evidence and whether its suppression was intentional or inadvertent. United States v. Keogh, 391 F.2d 138, 146-148 (2d Cir. 1968) and 440 F.2d 737, 741 (2d Cir.), cert. denied, 404 U.S. 941, 92 S.Ct. 285, 30 L.Ed.2d 254 (1971). Neither factor can be ascertained here without an evidentiary hearing.
PETITION FOR REHEARING EN BANC GRANTED
A petition for rehearing containing a suggestion that the action be reheard en banc having been filed herein by counsel for the appellant, and a majority of the judges in active service having voted in favor of such rehearing,
It is hereby
Ordered that said petition be and it hereby is granted. Reconsideration will be had, without further oral argument, on the record and on the briefs heretofore filed and to be filed. The parties are requested to file further briefs on or before March 16, 1973, addressed, but not limited, to the progress of the investigation presently being conducted by the Kings County District Attorney.
ORDER
It is hereby ordered that the motion made herein by Myron Beldock, Esq., counsel for the relator-appellant in the form of a letter dated April 10, 1973 is granted, the district court’s order denying the petition for habeas corpus is vacated, and the appeal is dismissed as moot.
Mr. Beldock: That’s the description you got from the sister-in-law who saw this happen from the window; right?
Det. Aidala: Oh, that’s possible. It might be from the sister-in-law. You could be right there, Counsellor.
(Transcript of Hearing at 508-09.)