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The codefendant RH was apprehended in May, 1960


In a coram nobis proceeding, defendant appeals from an order of the County Court, Nassau County, dated February 26, 1963, which denied after a hearing his application to vacate a judgment of said court, rendered May 26, 1961 after a jury trial, convicting him of robbery in the first degree (two counts); grand larceny in the first degree (two counts); and assault in the second degree (two counts); and sentencing him to serve concurrent prison terms of ten to twenty years on each robbery count; five to ten years on each larceny count; and two and one-half to five years on each assault count.

The criminal defendant, his brother, one RH and two others (MO and RW) were indicated in 1956 in a thirty-count indictment arising out of the hold-up of a card game. The identity of the defendant and his brother being unknown, they were referred to in the indictment as ‘John Doe’ and ‘Richard Roe.’ Soon after the commission of the crimes, MO and RW were apprehended, tried and convicted. On appeal by RW, the judgment of conviction as to him was reversed by this criminal court.

The codefendant RH was apprehended in May, 1960. Thereafter he and the police of Nassau County made a deal whereby, in return for his identification of the defendant and his brother, RH was allowed to plead guilty to attempted robbery in the third degree in satisfaction of the indictment, whereupon he received a very light sentence, to wit, 2 1/2 to 5 years as a second felony offender.

Thereafter, the District Attorney made application to the court for an order that RH be held in Nassau County jail as a necessary witness, pending the present defendant’s trial. The prosecutor was informed of this deal, if he did not already know of it, when RH was interviewed by him some weeks before the PKS brothers, defendant and his brother, were brought to trial. On such trial, RH testified for the People. Nevertheless, when RH on cross examination denied that, prior to his guilty plea, any promise had been made to him as to what his sentence would be, the prosecutor did not see fit to reveal the deal to the jury.

Defendant and his brother were found guilty; and, upon appeal to this court, their judgment of conviction was affirmed.

At the trial, there was testimony and there were remarks by the prosecutor in his summation, to the effect that RH’s case had been disposed of by his sentence of 2 1/2 to 5 years, implying that he had nothing to gain from his testimony. However, soon after the conviction of the PKS brothers, RH was brought before the Trial Judge; his plea was amended to include two misdemeanors; and he was resentenced, the net result being that he was required to serve only one year in the county jail.

On the hearing of the coram nobis application several assistant district attorneys, who had participated in the preparation of the case, testified to the effect that no promise had been given to RH for his trial testimony and that the resentencing was recommended by the District Attorney solely out of consideration for RH’s safety, it being feared that if he were incarcerated with the PKS brothers in Sing Sing they would take vengeance on him. However, the record does not show that any such reason was urged upon the resentencing judge, who testified upon the hearing that the reason urged upon him for further clemency was that RH had been very cooperative with the authorities.

In our opinion, regardless of whether, before the PKS trial, an understanding existed between RH and someone in behalf of the authorities, which should have been revealed to the jury by the prosecutor that further leniency would be recommended if he (RH) testified for the People, it was nevertheless the duty of the prosecutor, when RH testified falsely that no promise had been made to him with respect to his first sentence, to inform the jury of his deal with the police. Had the jury been aware of the fact: (1) that RH was let out on bail in order to find ‘John Doe’ and ‘Richard Roe;’ (2) that he then led the police to the PKS brothers; and (3) that after they had been arrested he was sentenced as a second felony offender to a term of only 2 1/2 to 5 years, the jury might have evaluated differently his identification of the defendant and his brother at the trial.

The judgment of conviction was previously affirmed by this court. Order reversed on the law and the facts; application granted; judgment vacated and a new trial granted.

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