Judgment, Supreme Court, New York County (Juanita Bing Newton, J.), rendered June 3, 1988, which convicted defendant, after jury trial, of two counts of criminal sale of a controlled substance in the third degree and sentenced him to two concurrent 6-to-12-year terms, reversed, as a matter of discretion in the interest of justice, and the case remanded for a new trial.
Police Officer Samuel Berkman was stationed on narcotics detail in an observation post located in a rear third-floor apartment of a building on East 106th Street on the afternoon of October 6, 1987. Using binoculars, he looked across a vacant lot and observed activity on East 105th Street between 1st and 2nd Avenues, looking for narcotics traffic. Berkman testified both before the Grand Jury and later at trial that at 3:35 p.m. he observed defendant hand Jose Santiago bundles of glassine envelopes. Defendant then walked towards 1st Avenue and disappeared from Berkman’s view. Seven minutes later, he reappeared on the street and approached Carlos Vasquez and Genaro Cardona and handed them a bundle of glassine envelopes and walked away. Approximately 15 minutes later, defendant reappeared on the street, met Santiago, and gave him a bundle of glassine envelopes. While defendant remained on the street at this time, Berkman observed Car-dona hand glassine envelopes to another man. Defendant again left, and reappeared a few minutes later and handed Vasquez and Santiago bundles of glassine envelopes.
Berkman then contacted the backup officers and told them to move in and arrest the men. Before the officers apprehended Vasquez and Santiago, Berkman saw them place the bundles of glassine envelopes on the ground near a parked [102]*102gold station wagon. Once the four men were arrested Berk-man directed one of the arresting officers to the front of the station wagon, where he recovered two bundles of glassine envelopes from the ground between the front tire and the curb. Later testing demonstrated that the two bundles contained 9 and 10 glassine envelopes, respectively, each glassine envelope containing heroin.
The trial began on a Tuesday, and on that day, Berkman informed the Assistant District Attorney (ADA) that from his vantage he did not in fact see glassine envelopes in the bundles that he observed defendant and his cohorts pass back and forth, but that he had only seen white objects. The ADA informed the defense counsel of this revelation. Nevertheless, when Berkman testified he delivered the account described. When he was asked by both the prosecutor and the Trial Judge to particularize exactly what he observed, Berkman steadfastly stated that he saw glassine envelopes. He was specifically asked "Were you able to see that it was a glassine envelope” and he started to answer "From my experience” when the court interjected "Did you actually see the glassine envelopes, not what you thought was in them”; Berkman answered "Yes. I saw the glassine envelope that I described.” On cross-examination, defense counsel also pressed this point, and even when asked if he had had a conversation with the ADA the day before when "you in fact told him that you couldn’t see glassines”, Berkman denied it. Then, on redirect examination, the ADA attempted to have Berkman clarify matters and asked him to recall the conversation they had. Berkman reaffirmed that "I was able to see bundles of glassine envelopes.”
The issue was discussed throughout the day by the Trial Judge and counsel out of the presence of the jury. At the end of the day, the ADA informed the court that by the resumption of the trial two days later, on Friday, he would either decide on a stipulation or become a witness in the case regarding his conversation with Berkman. The defense counsel then stated: "[W]hen I asked for a stipulation regarding the conversation he had with this police officer * * * his response is he would try to clarify it through redirect and if he was not able to clarify it, there would be a stipulation. Now I hear that he is waffling on that as to what he is going to do. He told me when he walked in here this afternoon that yesterday the police officer told him he couldn’t see glassines. We brought it to your attention, we had a discussion about it, we had several possible remedies. The District Attorney said [103]*103'Let me try to remedy it by redirect.’ He couldn’t and there is supposed to be a stipulation now.”
The matter remained unresolved, and when the trial resumed on Friday, there was further colloquy between counsel and the court on how to proceed. Fearing that the ADA would rehabilitate Berkman if he were to be recalled as a witness, defense counsel objected to that procedure and the court agreed. Further discussion was put over until the following Monday, and the trial proceeded with other witnesses. On Monday, the court ruled that the ADA could not recall Berk-man and directed the prosecutor to correct the record either by stipulation, by a statement to the jury or by testifying. The court chided the ADA and branded Officer Berkman "defiant” for his conduct, but eventually resolved the matter by reading the following stipulation to the jury: "Prior to Police Officer Berkman taking the stand Mr. Ippolito asked him to particularize what he saw the defendant give to other people and Police Officer Berkman stated that he saw a white object or white objects.”
In summation, the ADA argued that Berkman testified that he observed what he believed to be bundles of glassine envelopes, and later argued that the jury should take into account the officer’s expertise.
The court charged the jury that the stipulation "was accepted solely for the purpose of discrediting the witness Berk-man’s testimony at trial on the ground that at some other time he gave contradictory or inconsistent statements of versions of the facts”.
The lengthy recitation of the circumstances of Officer Berk-man’s false testimony regarding his observation of glassine envelopes, and the well-meaning attempts to rectify the matter are set forth in detail to demonstrate the cumulative impact of this affair. By the continued recitation of his false testimony regarding the observation of glassine envelopes, the trial was irreparably tainted and defendant was denied his due process rights to a fair trial.
That this testimony had a prejudicial impact on the jury is an inescapable conclusion. It is well known to lay persons, as well as to law enforcement personnel, that a glassine envelope is a " 'telltale sign of heroin’ ” and the " 'hallmark’ of a drug transaction”. (People v McRay, 51 NY2d 594, 604, 605.) Berk-man’s continued repetition of the untrue statement that he had observed the defendant pass glassine envelopes reinforced the incriminating import of his reference. The brief and [104]*104ambiguous stipulation ultimately read to the jury cannot be said to have ameliorated the prejudicial impact of the prior testimony.
While the court commendably attempted to address this untoward situation, the prejudicial impact on the defendant remained. Fundamental fairness to the defendant required that the true facts be clearly and forcefully communicated to the jury to correct the false testimony. A conviction which is obtained based on evidence which is known to be false impairs a defendant’s due process rights, requiring a reversal of that conviction (cf., People v Pelchat, 62 NY2d 97). The brief stipulation read to the jury did not fully and forcefully correct the testimony or convey to them the full impact of Berkman’s admission that he was unable to see glassine envelopes and that his testimony in that regard was false.
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Judgment, Supreme Court, New York County (Juanita Bing Newton, J.), rendered June 3, 1988, which convicted defendant, after jury trial, of two counts of criminal sale of a controlled substance in the third degree and sentenced him to two concurrent 6-to-12-year terms, reversed, as a matter of discretion in the interest of justice, and the case remanded for a new trial.
Police Officer Samuel Berkman was stationed on narcotics detail in an observation post located in a rear third-floor apartment of a building on East 106th Street on the afternoon of October 6, 1987. Using binoculars, he looked across a vacant lot and observed activity on East 105th Street between 1st and 2nd Avenues, looking for narcotics traffic. Berkman testified both before the Grand Jury and later at trial that at 3:35 p.m. he observed defendant hand Jose Santiago bundles of glassine envelopes. Defendant then walked towards 1st Avenue and disappeared from Berkman’s view. Seven minutes later, he reappeared on the street and approached Carlos Vasquez and Genaro Cardona and handed them a bundle of glassine envelopes and walked away. Approximately 15 minutes later, defendant reappeared on the street, met Santiago, and gave him a bundle of glassine envelopes. While defendant remained on the street at this time, Berkman observed Car-dona hand glassine envelopes to another man. Defendant again left, and reappeared a few minutes later and handed Vasquez and Santiago bundles of glassine envelopes.
Berkman then contacted the backup officers and told them to move in and arrest the men. Before the officers apprehended Vasquez and Santiago, Berkman saw them place the bundles of glassine envelopes on the ground near a parked [102]*102gold station wagon. Once the four men were arrested Berk-man directed one of the arresting officers to the front of the station wagon, where he recovered two bundles of glassine envelopes from the ground between the front tire and the curb. Later testing demonstrated that the two bundles contained 9 and 10 glassine envelopes, respectively, each glassine envelope containing heroin.
The trial began on a Tuesday, and on that day, Berkman informed the Assistant District Attorney (ADA) that from his vantage he did not in fact see glassine envelopes in the bundles that he observed defendant and his cohorts pass back and forth, but that he had only seen white objects. The ADA informed the defense counsel of this revelation. Nevertheless, when Berkman testified he delivered the account described. When he was asked by both the prosecutor and the Trial Judge to particularize exactly what he observed, Berkman steadfastly stated that he saw glassine envelopes. He was specifically asked "Were you able to see that it was a glassine envelope” and he started to answer "From my experience” when the court interjected "Did you actually see the glassine envelopes, not what you thought was in them”; Berkman answered "Yes. I saw the glassine envelope that I described.” On cross-examination, defense counsel also pressed this point, and even when asked if he had had a conversation with the ADA the day before when "you in fact told him that you couldn’t see glassines”, Berkman denied it. Then, on redirect examination, the ADA attempted to have Berkman clarify matters and asked him to recall the conversation they had. Berkman reaffirmed that "I was able to see bundles of glassine envelopes.”
The issue was discussed throughout the day by the Trial Judge and counsel out of the presence of the jury. At the end of the day, the ADA informed the court that by the resumption of the trial two days later, on Friday, he would either decide on a stipulation or become a witness in the case regarding his conversation with Berkman. The defense counsel then stated: "[W]hen I asked for a stipulation regarding the conversation he had with this police officer * * * his response is he would try to clarify it through redirect and if he was not able to clarify it, there would be a stipulation. Now I hear that he is waffling on that as to what he is going to do. He told me when he walked in here this afternoon that yesterday the police officer told him he couldn’t see glassines. We brought it to your attention, we had a discussion about it, we had several possible remedies. The District Attorney said [103]*103'Let me try to remedy it by redirect.’ He couldn’t and there is supposed to be a stipulation now.”
The matter remained unresolved, and when the trial resumed on Friday, there was further colloquy between counsel and the court on how to proceed. Fearing that the ADA would rehabilitate Berkman if he were to be recalled as a witness, defense counsel objected to that procedure and the court agreed. Further discussion was put over until the following Monday, and the trial proceeded with other witnesses. On Monday, the court ruled that the ADA could not recall Berk-man and directed the prosecutor to correct the record either by stipulation, by a statement to the jury or by testifying. The court chided the ADA and branded Officer Berkman "defiant” for his conduct, but eventually resolved the matter by reading the following stipulation to the jury: "Prior to Police Officer Berkman taking the stand Mr. Ippolito asked him to particularize what he saw the defendant give to other people and Police Officer Berkman stated that he saw a white object or white objects.”
In summation, the ADA argued that Berkman testified that he observed what he believed to be bundles of glassine envelopes, and later argued that the jury should take into account the officer’s expertise.
The court charged the jury that the stipulation "was accepted solely for the purpose of discrediting the witness Berk-man’s testimony at trial on the ground that at some other time he gave contradictory or inconsistent statements of versions of the facts”.
The lengthy recitation of the circumstances of Officer Berk-man’s false testimony regarding his observation of glassine envelopes, and the well-meaning attempts to rectify the matter are set forth in detail to demonstrate the cumulative impact of this affair. By the continued recitation of his false testimony regarding the observation of glassine envelopes, the trial was irreparably tainted and defendant was denied his due process rights to a fair trial.
That this testimony had a prejudicial impact on the jury is an inescapable conclusion. It is well known to lay persons, as well as to law enforcement personnel, that a glassine envelope is a " 'telltale sign of heroin’ ” and the " 'hallmark’ of a drug transaction”. (People v McRay, 51 NY2d 594, 604, 605.) Berk-man’s continued repetition of the untrue statement that he had observed the defendant pass glassine envelopes reinforced the incriminating import of his reference. The brief and [104]*104ambiguous stipulation ultimately read to the jury cannot be said to have ameliorated the prejudicial impact of the prior testimony.
While the court commendably attempted to address this untoward situation, the prejudicial impact on the defendant remained. Fundamental fairness to the defendant required that the true facts be clearly and forcefully communicated to the jury to correct the false testimony. A conviction which is obtained based on evidence which is known to be false impairs a defendant’s due process rights, requiring a reversal of that conviction (cf., People v Pelchat, 62 NY2d 97). The brief stipulation read to the jury did not fully and forcefully correct the testimony or convey to them the full impact of Berkman’s admission that he was unable to see glassine envelopes and that his testimony in that regard was false. Since the conviction lies, at least in part, on Officer Berkman’s reprehensible and false testimony, the error is so fundamental and substantial that the conviction should not be allowed to stand. (See, People v Creasy, 236 NY 205, 221; see also, People v Robertson, 12 NY2d 355.)
In basing our decision on the denial of a fair trial to the defendant, it is unnecessary to reach his claim that the Grand Jury proceedings were fatally tainted by Berkman’s testimony before that body. We note, however, that at that time, there was no intimation that Berkman’s testimony was false, and, significantly, there was other relevant evidence before the Grand Jury so that it cannot be said that the indictment rested solely on false evidence. (Cf., People v Pelchat, supra.) Concur—Murphy, P. J., Carro, Asch and Ellerin, JJ.