People v. Romeo

16 A.D.2d 240, 226 N.Y.S.2d 957, 1962 N.Y. App. Div. LEXIS 10248

Opinions

Per Curiam.

This is an appeal from an order denying an application in the nature of a writ of error coram nobis seeking a vacatur of a judgment of conviction of murder in the first degree, entered on May 6, 1946, sentencing the defendant to a term of life imprisonment.

At the trial of the defendant on the charge of murder in the first degree, the principal prosecution witness was one Gramando. After implicating the defendant, Gramando was asked upon cross-examination whether he had received any promise from the District Attorney as inducement for his testimony. To this Gramando replied in effect that while he had entertained certain hopes and expectations he had been made no promise. The pertinent part of this testimony is as follows:

Q. And you told the District Attorney that “ If my wife is prosecuted

Footnotes

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* I will not testify ”9 A. I didn’t say nothing of the kind.

Q. You said something about your wife being arrested? A. That’s right.

Q. You asked the District Attorney to help her didn’t you. A. That’s right.

Q. Yes. And your wife’s charge of possessing a loaded firearm was dismissed by the Grand Jury of this County. A. That’s right.

Q. You were promised that if you testified in this case you wouldn’t be prosecuted for the killing in this case, is that correct? A. You Imow more than me.

Q. I know more than you? A. Yes.

Q. Perhaps I do. A. You’re smarter than I am, but you know more than me.

Q. Ho one ever told you that. A. Nobody told me anything.

Q. You just came here voluntarily, without any promises, without any consideration? A. That’s right. The only thing I hoped was that they would take my wife out, that’s all.

Q. You wanted your wife saved? A. Yes, for my baby’s sake. My baby means more to me than anybody.

In this coram nobis proceeding the defendant contends that Gramando’s testimony at the trial relative to the absence of any promise by the prosecutor was false and that the prosecution knew it to be false. At the hearing Bramando testified that his denials at the trial that any promise had been made were- false. The Assistant District Attorney, who was associated with the trial assistant and who was present at the time, testified in this proceeding as follows: “ I told him at that time that we would do everything we could to get his wife out on this gun charge.” He also said: “ In my conversation originally with him on June 20,1945,1 did indicate to him that we would try to help his wife, which was a promise I intended to keep.”

The District Attorney, in endeavoring to support the position that the testimony given by G-ramando at the trial was not false, states that “at no time did I ever make any promises of consideration either directly or indirectly, either by word or anything else in return for his testimony against the defendant Bennedetto Borneo.” He does not deny a promise but he contends that it was not given for testimony but in order to induce Bramando to give him information with respect to the killing. We see no difference in substance. While the witnesses’ testimony at the trial was not assured, it is difficult to conceive how he could have effectively recanted the story previously given to the District Attorney. The fact is that he did testify, both before the Grand Jury and at the trial, in accordance with the information previously given. Whether the testimony given by the witness was influenced by the promise already performed was for the jury to decide, provided however, that it had been informed of the promise given. It was not so informed. In any event, there is no denying that a promise of some sort was given to the witness. That is in direct conflict with the prosecutor’s statements during the trial that “ [t]here hasn’t been a promise made of any kind ’ ’ and ‘‘ [n] ot a single promise ever made to this man.”

The record in this coram nobis proceeding reveals that the prosecutor did promise to try to obtain a dismissal of the charge pending against Gramando’s wife and accordingly, when Graznando testified to the contrary the prosecutor knew he was lying. We conclude that the inaction of the prosecutor in the face of such false testimony so prejudiced the defendant as to require a vacatur of the judgment of conviction and a new trial.

The District Attorney’s attempt to minimize the impact of this impropriety is unacceptable. The fact that the jury may have been aware that Bramando had the expectation of helping his wife by his testimony is hardly the equivalent of the jury having knowledge that a promise to help her had in fact been made by the prosecutor. However, even if we assume that because of Gramando’s admitted expectation the jury might have inferred the existence of a corresponding promise, the possibility of such inference was destroyed by the unequivocal statements made by the trial prosecutor during the trial with respect to no promise having been given.

It is idle to say that the jury was not misled by these statements of the prosecutor because even the trial court was apparently convinced that no promise had been made, as evidenced by its statement — “I say there is no evidence in this case whatsoever of any promise being made to this defendant in return for his testimony.”

The defendant was entitled to have the jury apprised that a promise, regardless of its nature, had been made to the prosecution’s principal witness—a witness without whose testimony there could have been no conviction. The failure of the prosecutor to see that the jury was so enlightened constituted a denial of a fair trial to the defendant (People v. Zimmerman, 10 N Y 2d 430; People v. Savvides, 1 N Y 2d 554).

Accordingly, the order denying defendant’s motion for a writ of error coram nobis should be reversed on the law, the motion granted, the judgment of conviction vacated and the matter remanded for a new trial under the indictment.

Gramando’s wife had been arrested and charged with the unlawful possession of a gun.