To Be Argued By:
Mark A. Bederow
Time Requested: 15 Minutes
New Vork Supreme Court
APPELLATE DIVISION — SECOND DEPARTMENT
Docket No.
‘THE PEOPLE OF THE STATE OF NEW YORK, 2016-06775
Respondent,
against
Jou Giuca,
Defendant-Appellant.
REPLY BRIEF FOR DEFENDANT-APPELLANT
Law OFFICE OF
Man A. BEDEROW, P.C.
Attorneys for Defendant-Appellant
260 Madison Avenue
New York, New York 10016
Of Counsel: 212-803-1293
Andrew M. Stengel
Kings County Clerk's Indictment No. 8166/04TABLE OF CONTENTS
TABLE OF AUTHORITIES
INTRODUCTION...
ARGUMENT
POINT I
THE WITHHELD EVIDENCE MIGHT HAVE IMPACTED THE JURY’S
ASSESSMENT OF AVITTO’S CREDIBILITY
POINT I
NICOLAZZI CONSCIOUSLY AVOIDED FAVORABLE IMPEACHMENT
EVIDENCE AND FAILED TO EXERCISE DUE DILIGENCE BEFORE
MAKING FALSE ARGUMENT ABOUT AVITTO’S CREDIBILITY 14
POINT II
THE CONVICTION SHOULD BE REVERSED UNDER THE
“REASONABLE POSSIBILITY” STANDARD
POINT IV
THE EAC RECORDS CONSTITUTE NEWLY DISCOVERED
EVIDENCE ....
CONCLUSION.TABLE OF AUTHORITIES
Case
Banks v. Dretke, 540 U.S. 668(2004) ....
Davis v. Alaska, 415 US. 308 (1974) ...
Jenkins v. Artuz, 294 F.3d 284 (2™ Cir. 2002)
Kyles v. Whitley, 514 U.S. 419 (1995) ... 2,19
Napue v. Illinois, 360 U.S. 264 (1959) 2, 6, 14, 19
People v. Colon, 13 N.¥.3d 343 (2009) 11, 14, 19
People v. Conlan, 146 A.D.2d 319 (1 Dept. 1989) .. 16
People v. Cwikla, 46 N.Y.2d 434 (1979) 2,4, 14, 18
People v. MeCray, 23 N.Y.3d 193 (2014) 13n
People v. Novoa, 70 N.Y.2d 490 (1987) 3, 16
People v. Taylor, 26 N.Y.3d 217 (2015) 7, 9-11, 14
People v. Vielman, 31 A.D.3d 674 (2" Dept. 2006)... 19
People v. Vilardi, 76 N.Y.2d 67 (1990) 17,19
Strickler v. Greene, 527 US. 263 (1999) 8n
Su v. Filion, 335 F.3d 119 (2* Cir. 2003) 17,18
United States v. Wallach, 935 F.2d 445 (2 Cir.1991).... 17,19
Valentin v. Mazzuca, 2011 WL 65759 (WDNY 2011) ...... 17SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND DEPARTMENT
THE PEOPLE OF THE STATE OF NEW YORK,
Respondent,
App. Div. No. 2016-06775
-against- :
Ind. No. 8166/2004
JOHN GIUCA, : (Kings County)
Defendant-Appellant.
DEFENDANT-APPELLANT’S REPLY BRIEF
INTRODUCTION
The People finally concede in 2017 what ADA Anna-Sigga Nicolazzi denied
at John Giuca’s 2005 trial: the existence of evidence that John Avitto lied to avoid
jail. Opposition Br. 68-69. Nevertheless, they argue the lower court decision should
be affirmed because there is insufficient proof the prosecution provided Avitto with
a benefit in exchange for cooperating against Giuca. The People are wrong.More than eleven years after they suppressed evidence and deprived Giuca’s
jury from making an intelligent assessment of Avitto’s credibility, the People urge
the Court to reach the absurd conclusion that Avitto, a lifelong drug addict and thief
with a penchant for lying to avoid jail, became a civic-minded altruist when, shortly
after he exposed himself to a prison sentence, he volunteered to provide the
prosecution with months-old information against Giuca, and after the trial he
morphed back into the conniving liar he was before he approached the prosecution.
Rather than consider the cumulative impact the undisclosed evidence might
have had on the jury’s assessment of Avitto’s credibility, the People trivialize it
through a piece-by-piece analysis of the evidence in a vacuum, so the Court will
overlook its context and “net effect.” See Kyles v. Whitley, 514 U.S. 419, 437 (1995).
Opposition Br. 50-66.
The lower court decision should be reversed because had the jury been aware
of the withheld evidence, it might have concluded Avitto was motivated to accuse
Giuca out of concern for his own self-interest and rejected Nicolazzi’s false premise
that Avitto testified “for once, to do something right.” A. 1968-69; see Napue v.
Illinois, 360 U.S. 264, 269 (1959) (“it is upon such subtle factors as the possible
interest of the witness testifying falsely that a defendant’s life or liberty may
depend”); People v. Cwikla, 46 N.Y.2d 434, 441 (1979) (disclosure required where
impeachment material “is of such a nature that the jury could have found that, despite
2the witness’ protestations to the contrary, there was indeed a tacit understanding
between the witness and the prosecution, or at least so the witness hoped”).
Moreover, the withheld evidence would have been crucial to the jury because it
would have exposed the falsity of Avitto’s testimony and Nicolazzi’s summation.
Notwithstanding their concession that Avitto’s EAC records demonstrated his
willingness to lie to benefit himself and that Nicolazzi, other prosecutors and EAC
employees frequently discussed Avitto’s poor performance in his program, the
People maintain they were not obligated to review them. Even worse, the People
give short shrift to Nicolazzi’s conscious avoidance to evidence of Avitto’s dreadful
credibility before she made patently false statements about Avitto’s excellent
credibility. See People v. Novoa, 70 N.Y.2d 490 (1987).
Giuca’s trial was not a search for the truth about Mark Fisher’s murder.
Nicolazzi tipped the scales in the People’s favor by unilaterally and
unconstitutionally controlling what evidence regarding Avitto’s credibility the jury
received.ARGUMENT
POINT I
THE WITHHELD EVIDENCE MIGHT HAVE IMPACTED THE JURY’S
ASSESSMENT OF AVITTO’S CREDIBILITY
The People contend there was no Giglio violation because Nicolazzi did not
play a role in Avitto’s June 13, 2005, release on his own recognizance, and he was
not promised and did not receive any benefits in exchange for his cooperation.’
Opposition Br. 48-49, 65. They claim Avitto contacted detectives before he
absconded from his program on June 9, 2005; therefore irrespective of Nicolazzi’s
conduct, he didn’t benefit from his cooperation against Giuca. Jd. 50-58. They are
incorrect. Even in the absence of an express agreement, if there existed a “strong
inference, at the very least” Avitto expected any leniency, Nicolazzi was obligated
to disclose evidence in her possession that could have led the jury to conclude Avitto
had a motive to falsely accuse Giuca. Cwikla, 46 N.Y.2d at 441-42.
The People rely on eleven-year recollections of two detectives who claimed
they met Avitto at his Brooklyn program [it was in Queens, A. 2066-73, 2092-93,
2447-51, 2455, 2462, 2471] to establish Avitto contacted authorities before he
' The People claim Avitto’s failure to cite a “deal” before he received the prison sentence he sought
to avoid by cooperating against Giuca proves he didn’t receive a benefit. Opposition Br. 32, 43.
From the time Avitto offered to cooperate against Giuca until the end of the trial, the prosecution
never requested bail, despite Avitto’s several violations. When Avitto was imprisoned in 2006, he
already had benefited from his cooperation against Giuca.
4absconded on June 9, 2005.2 However, overwhelming evidence proves Avitto first
contacted detectives on June 9, the same evening he absconded from his program
and used drugs, which Avitto knew exposed himself to a lengthy prison sentence.
Nicolazzi first met Avitto the day she appeared in court with him (June 13). A. 496-
98. Approximately three months later, in response to a demand for Rosario material,
Nicolazzi told the trial court she knew detectives did not take any notes during their
interviews of Avitto because she was present at every meeting with them. A. 1761.
The detectives’ recollections about first meeting Avitto and Nicolazzi’s claim cannot
both be true. In order to conclude Avitto met detectives before June 13, 2005, the
Court must find that Nicolazzi perjured herself at the hearing or lied to the trial court
regarding her disclosure of evidence obligations.
Avitto’s EAC records document that after Nicolazzi and Avitto met on June
13, 2005, Nicolazzi went to court with him and told his EAC counselor that Avitto
“contacted detectives” with information against Giuca on “Thur. 6/9/05.” A. 2523.
It stands to reason that if Nicolazzi possessed evidence that Avitto, a jailhouse
informant with an active arrest warrant, met with detectives before he exposed
himself to a prison sentence, she would have presented it to the jury. She didn’t.
2 This argument is diluted by the fact Avitto knew he had an active bench warrant when he met
Nicolazzi on June 13, 2005.
> Avitto was wamed in court on February 8, April 28 and June 9, 2005, that his failure to comply
with his program would result in a lengthy prison sentence. The last threat occurred hours before
he absconded. A. 2056-70.
5Equally unpersuasive is the assertion that Avitto’s release on June 13, 2005,
was a foregone conclusion.' Opposition Br. 48, 50-53, 64. In essence, the People
ask the Court to take judicial notice that Nicolazzi’s appearance in court was
meaningless to the jury’s assessment of Avitto’s credibility.’ Nicolazzi’s direct
involvement in the events of June 13, 2005 was critical to an evaluation of Avitto’s
credibility because she gave the jury the impression the jailhouse informant
volunteered to testify against Giuca because he “was distressed at the gratuitous
murder of Fisher and wanted to do the right thing” and she assured the jury there
was “absolutely no evidence” Avitto sought or received a benefit. Opposition Br.
18; A. 1966-69.
Therefore, any evidence that might have demonstrated Avitto’s motive to
cooperate against Giuca, particularly the direct involvement of Giuca’s prosecutor
in the events that led to Avitto’s release, should have been provided to the jury. See
Napue, 360 U.S. at 270 (“had the jury been apprised of the true facts....it might well
have concluded [the witness] had fabricated testimony in order to curry the favor of
Nicolazzi’s and Detective Bymes” hearing testimony obliterates this argument. On June 13,2005,
they warned Avitto he might be remanded. Byrnes acknowledged that he and Nicolazzi expected
Avitto to be remanded. Nicolazzi confirmed that when she met Avitto on June 13, he was
concerned about going back to jail. A. 373-74, 548-49.
5 The People claim the June 13, 2005, progress note which documents Nicolazzi sought Avitto’s
release on his own recognizance is unreliable, even though they cite the reliability of the same
counselor’s contemporaneous progress notes that immediately precede it. Opposition Br. 52-53,
57; A. 2522-23, The detailed handwritten note describes how Nicolazzi first sought to have Avitto
placed in another program, but after she was told none were available, she told the court they
wanted Avitto released to his mother's house. A. 2523
6the very representative of the State who was prosecuting the case in which [he] was
testifying”); People v. Taylor, 26 N.Y.3d 217, 226 (2015) (homicide prosecutor's
appearance on witness’ case where he faced jail but prosecutor did not seek it “has
an especially strong bearing on the witness’ credibility” and suggests the witness
“had a motive to testify falsely in favor of the prosecution...out of gratitude for the
prosecutor's aid”).
Nicolazzi not only suppressed important evidence about the circumstances
that led to Avitto’s June 13, 2005, release, she also misled the jury about them. On
cross examination, the jury learned about Avitto’s June 9 violation’ and the related
June 13 court appearance. Avitto denied calling the police about Giuca
“immediately” after he absconded and he reiterated that his own case did not
influence his decision to cooperate against Giuca. A. 1746, 1750, 1752, 1756.
On re-direct examination, Nicolazzi steered Avitto to say that after he left his,
program he contacted EAC “on his own,” after which he and his counselor walked
to court, where “he guessed” the counselor “got him another shot” during an
appearance attended by an unnamed “DA.” A. 1758. Avitto gave the jury the false
impression “the DA” was an afterthought at the proceeding. Nicolazzi exploited
* Although Avitto admitted that he absconded from his program, he perjured himself when he
denied using drugs after he left the program and before his June 13 meeting with Nicolazzi, A.
1745-47 of A. 2526 (after failing a drug test on June 15, 2005, Avitto admitted using cocaine on
June 9 and 12); A. 2054.
7Avitto’s testimony by telling the jury “it’s there to see in black and white” that the
court released Avitto because of his “responsible” decision to contact EAC after he
left his program. A. 1966-67.
‘This extraordinarily misleading testimony and argument kept the jury from
learning (1) the timing and relationship between Avitto’s program violation and his
decision to cooperate against Giuca, (2) that rather than return to court on his own,
Avitto met with Nicolazzi and provided information against Giuca, (3) that
Nicolazzi, not his EAC counselor, escorted him to court, (4) that Nicolazzi was “the
DA” who appeared in court, and (5) Nicolazzi, not Avitto’s EAC counselor “got him
another shot,” by telling the court Avitto provided information against Giuca.”
Nicolazzi’s gamesmanship “reinforced the false impression” that Avitto’s
cooperation against Giuca was unrelated to his own legal problem and invited the
jury to adopt the “natural and reasonable inference” sought by Nicolazzi’s ruse:
7 The People claim Giuca’s trial counsel could have located the June 13, 2005, transcript, and that
he would not have questioned Avitto about Nicolazzi’s appearance. Opposition Br. 64. Counsel
first leamed about Avitto when he received a witness list immediately before trial. Avitto was not
mentioned at the trial until he testified near the end of it. Counsel had no meaningful opportunity
to search for hearing transcripts under the circumstances. He properly relied on the good faith of
the prosecution’s representation they had no favorable impeachment material. See Banks v
Dretke, 540 U.S. 668 (2004); Strickler v, Greene, 527 U.S. 289 (1999). The People’s contention
that counsel would not have used the fact that Nicolazzi appeared on Avitto’s case is inaccurate,
A. 766, 769. In any event, his failure to do so would have been unreasonable. Proof that Avitto
offered information to Giuca’s prosecutor while he had an active warrant, after which Giuca’s
prosecutor appeared on Avitto’s case and notified the court about his assistance before he was
released without bail would have been compelling support for counsel's argument that Avitto
sought a benefit.
8Avitto was released because he was “responsible.” Jenkins v. Artuz, 294 F.3d 284,
294 (2"4 Cir. 2002).
Nicolazzi’s calculated decision to conceal her identity from Avitto’s
appearance but emphasize that Justice Marrus was not the judge who released him
further demonstrated her conscious intent to mislead the jury about the relationship
between Avitto’s legal situation and his cooperation. A. 1758. Indeed, she was
unable to offer a coherent explanation for this distinction. A. 706 (“I didn’t give a
follow-up question at that same question because I couldn’t—because it was me, but
Tcould ask him specifically since he said the judge that was presiding over the trial.
That is why I did that”).
People v. Taylor, 26 N.Y 3d 217 (2015) establishes that Nicolazzi’s failure to
disclose her appearance on Avitto’s case unduly prejudiced Giuca. Although Taylor
involved a trial court’s improper response to a jury note requesting “the benefits”
provided to witnesses rather than a Giglio question, the strikingly similar facts and
the Court’s insistence that the jury be provided with evidence that might demonstrate
a witness’ motive to favor the prosecution, make it applicable to Giuca’s case.
The People concede that the Court properly reversed a murder conviction
because the trial court’s failure to disclose all of the benefits requested by the jury
deprived it of significant evidence of a witness’s motive to testify falsely in the
prosecution’s favor. Opposition Br. 74-75. However, the People incorrectly assert
9“undisputed benefits” in the form of cooperation agreements were at issue. Id. 75.
Hilton, the witness in Taylor comparable to Avitto, did not have a cooperation
agreement with the prosecution. Turner, a witness not relevant here, had a
cooperation agreement. Taylor, 26 N.Y.3d at 221-22.
The only “benefit” at issue in Taylor was conduct virtually identical to
Nicolazzi’s on June 13, 2005: the trial prosecutor’s appearance on Hilton’s violation
of probation hearing where he was released after the prosecutor did not request bail.
Id. at 220. Unlike Nicolazzi, Taylor’s prosecutor disclosed her appearance on
Hilton’s case, which allowed Taylor to confront Hilton about the possible benefit
and argue to the jury that he had a motive to testify favorably for the prosecution,
Id, at 221, 226.
During deliberations, the jury requested all of “the benefits” offered to Hilton
and Tumer. The jury received Tumer’s cooperation agreement but not Hilton’s
testimony regarding the trial prosecutor’s appearance on his case. Jd. at 222. The
Court reversed because the benefits sought by the jury “necessarily included”
Hilton’s testimony about the trial prosecutor’s appearance on his case. The trial
court’s failure to provide Hilton’s testimony deprived the jury of evidence that “had
an especially strong bearing on [Hilton’s] credibility because...it suggested that
Hilton had a motive to testify falsely in favor of the prosecution at defendant's trial
out of gratitude for the prosecutor’s aid.” Id. at 225-26.
10Thus, the People’s attempt to distinguish Taylor falls flat. The Court held the
trial court’s failure to provide the jury with evidence of Hilton’s court appearance
might have misled the jury into wrongly concluding that disclosed conduct virtually
identical to Nicolazzi’s undisclosed conduct was not significant evidence of a
possible benefit. /d. at 227. Taylor was reversed even though the jury received the
evidence and the prosecutor did not mislead the jury; Nicolazzi intentionally kept
Giuca’ jury ignorant through her wholesale suppression of the same evidence. It
makes no sense that Taylor, but not Giuca, could have been unduly prejudiced.
Nicolazzi’s disregard for her duty of candor “exacerbated the prejudice”
caused by her failure to disclose the circumstances surrounding her appearance on
Avitto’s case. People v. Colon, 13 N.Y.3d343, 350 (2009). In Colon, the prosecutor
failed to correct the testimony of a witness who misled the jury by denying that he
received benefits, when, among other things, the trial prosecutor had appeared on
his case and conveyed an offer made by another prosecutor. Jd, at 349. The Court
reversed a double murder conviction, holding that in addition to failing to correct the
witness’ inaccurate testimony about “the benefits received,” the trial prosecutor
“compounded” the error by “repeating and emphasizing the misinformation during
summation.” Id, at 349-50. This is precisely what Nicolazzi did with respect to
Avitto’s testimony. See A. 1966-69.Additional undisclosed favorable impeachment material corroborates the June
13, 2005, evidence. On June 14, 2005, Executive ADA Anne Swern directed
Nicolazzi, David Kelly, David Heslin (the DA’s mental health and drug court
supervisors, respectively), EAC director Lauren D’Isselt and other EAC supervisors
to flag Avitto’s mundane case for “special attention.” A. 2048. On June 16, 2005,
during a conversation with an EAC supervisor regarding Avitto’s rampant drug use
and noncompliance with his program, Kelly memorialized that “Avitto turned
himself into the DA's Office and he has info on a murder case and he was not
remanded.” A, 2054 (emphasis added). On June 17, 2005, D’Isselt confronted
Avitto about his poor performance and warned him that EAC “would be in direct
contact with ADA Anna Nicolazzi and Patricia MeNeil [Nicolazzi’s co-counsel on
Giuca’s case] and that EAC had the full support of [Giuca’s prosecutors] on any
decisions made on behalf of [Avitto] by EAC.” A. 2528. On two occasions shortly
before Avitto testified, he was released after he violated his program specifically
because of his upcoming testimony against Giuca. A. 2547, 2549.°
"Nicolazzi swore she was unaware of Avitto’s violations even though his EAC counselor notified
her the same day they occurred and they spoke frequently before Avitto testified. A. 2548, 2550.
She remarkably claimed she “never kept track of [Avitto’s] court dates,” even though a high-
ranking executive in her office directed her to monitor Avitto at least three times after June 13,
2005. A. 610 cf, A. 2048-49, Her apparent failure to do so resulted in Nicolazzi allowing Avitto to
testify he was “doing good” in his program even though she knew or should have known three
days earlier he had been expelled from his rehab facility and castigated by the court for his “not
good” performance, A. 2084-87.
12The People assert this “innocuous” evidence doesn’t “even suggest” Avitto’s
June 13, 2005, release was related to his cooperation against Giuca.”” Opposition
Br. 58-61. The Court should reject the People’s substitution of their interpretation
of the evidence in place of Giuca’s jury, which was denied the fair opportunity to
consider this evidence years ago. In any event, the People’s conclusion is delusional.
If the jury knew that after he exposed himself to a lengthy prison sentence, Avitto
“turned himself into the DA’s Office” with information against Giuca and was not
remanded after Nicolazzi notified the court about his effort to help the case against
Giuca, that after he met Nicolazzi, he immediately became the subject of “special
attention” by the DA’s Office and EAC, and that the EAC director warned him that
she would speak to Nicolazzi regarding his possible remand, at the very least, it is
possible the jury would have believed Avitto was biased in favor of the prosecution.
Just as importantly, had Avitto been confronted with the undisclosed
evidence, his misleading testimony would have been exposed and the veil of secrecy
cloaking Nicolazzi’s identity as “the DA” who appeared in court with him would
have been lifted. In these circumstances, the jury might have concluded that Avitto’s
° The People claim Kelly’s note is not Giglio material because it contains hearsay. Opposition Br.
58. Inadmissible evidence “that will be useful to the defense, perhaps as a lead to admissible
evidence or a tool in disciplining witnesses during cross examination” must be disclosed. People
¥. McCray, 23 N.Y.3d 193, 199-200 (2014).
13concealment of Nicolazzi’s direct role in the events that led to his release further
demonstrated his selfish motive for cooperating against Giuca.
Accordingly, the People’s misleading presentation and nondisclosure of
evidence that “had an especially strong bearing” on Avitto’s credibility and which
created the “strong inference” that Avitto was biased in favor of the prosecution,
violated Giuca’s right to due process. Taylor, 26 N.Y.3d at 226; Cwikla, 46 N.Y.2d
at 442; see Napue, 360 U.S. at 269-71; Colon, 13 N.Y.3d at 348-50; Davis v. Alaska,
415 U.S. 308, 317 (1974) (“jurors were entitled to have the benefit of the defense
theory before them so that they could make an informed judgment as to the weight
to place on [the witness’s] testimony...”).
POINT IE
NICOLAZZI CONSCIOUSLY AVOIDED FAVORABLE IMPEACHMENT
EVIDENCE AND FAILED TO EXERCISE DUE DILIGENCE BEFORE
MAKING FALSE ARGUMENT ABOUT AVITTO’S CREDIBILITY
The People claim they had no duty to review Avitto’s EAC records because
he didn’t exhibit obvious symptoms of mental illness. Opposition Br. 67. However,
Nicolazzi consciously avoided learning about the favorable impeachment evidence
in them. From June 13, 2005, until Avitto testified, Nicolazzi, other prosecutors
(including two with expertise in mental health and drug court) and EAC personnel
were in regular contact with Avitto and each other regarding his mental illness and
drug abuse. Opening Br. 38-40.Avitto’s right to privacy does not excuse the People’s failure to review his
EAC records. Opposition Br. 66-67. He volunteered to be a witness, freely discussed
his mental health and drug problems with Nicolazzi, and executed a HIPAA waiver
before he testified. A. 480, 509-12, 1730-31, 1759-60, 2548. Giuca’s fundamental
right to confront Avitto about his possible bias was “paramount” to Avitto’s right to
privacy. Davis, 415 U.S. at 319. If the prosecution was so concerned about Avitto’s
privacy," they shouldn’t have used him as a witness. Id. at 320.
Assuming, arguendo, Nicolazzi wasn’t required to review Avitto’s EAC
records, such a duty arose before she made demonstrably false statements while
pervasively vouching for the credibility of a lifelong criminal she knew previously
lied to authorities to avoid jail, and who was exposed to a lengthy prison sentence
when he volunteered to help her case against Giuca. A. 1728.
Nicolazzi asserted there was “no evidence” Avitto was lying or that he was
“willing to say anything because he’s trying to help himself,” there was “absolutely
no evidence, no evidence at all [that Avitto received consideration] and “no
corroboration” to the defense claim Avitto was self-interested, She assured the jury
“everything” the “truthful” Avitto said was credible, and she implored the jury to
“trust” him. Nicolazzi vouched for Avitto’s candor; he was “very honest about his
® Nicolazzi placed Avitto’s drug abuse, mental illness, need for medication and his childhood
sexual abuse into issue. A. 1725, 1731, 1759-60,
15problems and criminal past. He freely admitted things he clearly isn’t proud of,”
which demonstrated his good credibility. A. 1956-57, 1966-69.
At the same time Nicolazzi vouched for Avitto’s eamestness, she chastised
the defense for speculating about Avitto’s self-interest and “condemning” him for
his sincerity. She outrageously argued that in order to believe the “uncorroborated”
defense claim that Avitto was self-interested, the jury had to find the existence of a
conspiracy involving the prosecution, police and the court. As if reading from a
Katka novel, Nicolazzi ridiculed the defense for failing to produce the very evidence
she suppressed and denied existed. A. 1966-69.
Now, more than a decade into Giuca’s life sentence, the People admit what
Nicolazzi adamantly denied: Avitto was a self-interested liar. Opposition Br. 68-
69 (Avitto’s EAC records “indicated that Avitto was willing to feign a mental
disorder. ..to achieve a benefit for himself. ..”); see id. 38, 45; see also, A. 2289 (less
than three months before he sought to cooperate against Giuca, Avitto rationalized
lying to get out of jail: “I had to do what I had to do to change my situation”).
Nicolazzi’s failure to make “obvious” and “appropriate” inquiries about the
credibility of a self-interested jailhouse informant before she misled the jury about
his credibility was a flagrant due process violation. Novoa, 70 N.Y.2d at 497-98;
see also, People v. Conlan, 146 A.D.2d 319, 331 (1* Dept. 1989) (“t is certainly not
reasonable to conclude that a career criminal...would agree to assist the prosecution
16merely as a sign of good will or because he had taken an aversion to defendant’s
boasting in prison. ..it required the trial prosecutor almost willfully refuse to confront
reality to have imagined [the jailhouse informant] was taking the stand simply out
of a concern for the public welfare”); Su v. Filion, 335 F.3d 119, 127 (24 Cir. 2003)
(prosecutor has a “fundamental obligation to determine” facts before making
inaccurate summation); Valentin v. Mazzuca, 2011 WL 65759 at 17-18 (WDNY
2011) (“[o]strich-like behavior on the part of the prosecution is not tolerated by
Brady and its progeny”).
POINT UL
THE CONVICTION SHOULD BE VACATED UNDER’ THE
“REASONABLE POSSIBILITY” STANDARD
Reversal is “virtually automatic” because the People’s “two case” strategy
makes it at least reasonably possible jurors deemed Avitto’s inaccurate testimony
essential to the conviction. Opening Br. 5-13, 42-47; People v. Vilardi, 76 N.Y.2d
67 (1990); United States v. Wallach, 935 F.2d 445, 456 (2™ Cir. 1991). Lauren
Calciano and Albert Cleary contradicted each other regarding every critical detail of
Giuca’s purported confession, other than alleging Giuca was home when Fisher was
killed—which Nicolazzi claimed didn’t make sense. A. 1531-33, 1962-63.
Calciano’s and Cleary’s sparring from the witness stand over whether Calciano
tampered with evidence proved at least one of them committed perjury. A. 1255 of
7A. 1513, 1528, 1552, Both lied to the police for more than one year before they
succumbed to extensive pressure and alleged (inconsistently) that Giuca confessed
to his role in the crime. A. 1251-53, 1262-63, 1521-27, 1585.
Avitto, on the other hand, was portrayed by Nicolazzi as an honest man who
testified out of sympathy for Fisher. She described Avitto as Giuca’s “confidante”
and the one person Giuca told the truth: Giuca was a direct participant in the crime.
Nicolazzi’s rejection of the theory that Antonio Russo killed Fisher alone (“it didn’t
even make sense”) in favor of Avitto’s version (which “ma[de] much more sense”)
demonstrates the impact Avitto’s testimony must have had on the jury. A. 1962-63.
The cumulative impact of the withheld evidence severely prejudiced Giuca."!
‘A. 1966-69, Had the jury known of Nicolazzi’s complicity in misleading the jury
about Avitto’s obvious motive to falsely accuse Giuca, it would have had a
“devastating” impact on the jury. Su, 335 F.3d at 129 n, 6; see Jenkins, 294 F.3d at
295 (there is a “heightened opportunity for prejudice when the prosecutor, by action
or inaction, is complicit in the untruthful testimony”); see also, Cwikla, 46 N.Y.2d
at 442 (misleading and obstructive tactics by a prosecutor strengthen the inference
that the witness expected leniency). Because the undisclosed evidence, at the very
“The People argue Giuca was not prejudiced by the nondisclosure of the favorable impeachment
material because Avitto was cross examined extensively about his criminal background and drug
use. Opposition Br. 45-46. Avitto’s criminal background was not in dispute; the critical issue was
his possible bias. See Davis, 415 U.S. at 316 (credibility attack on a witness’ criminal record is
less impactful on a witness’ credibility than an attack that exposes possible bias).
18least, would have shown Avitto was hardly a disinterested witness who volunteered
to testify against Giuca “for once, to do something right,” reversal is “virtually
automatic.” See Napue, 360 U.S. at 269; Kyles, 514 U.S. at 436-37; Colon, 13
N.Y.3d at 349-50; Vilardi, 76 N.Y.2d at 77; People v. Vielman, 31 A.D.3d 674, 675
(2 Dept. 2006); Wallach, 935 F.2d at 456.
POINT IV
THE EAC RECORDS CONSTITUTE NEWLY DISCOVERED EVIDENCE
The People claim that because Avitto’s EAC records prove he was a self-
interested liar rather than that he suffered from severe mental illness, they are merely
impeaching and not newly discovered evidence. Opposition Br. 77-79. The irony of
their argument encapsulates the serious flaws with this case.
Avitto’s EAC records contain numerous observations of doctors regarding his
serious and persistent mental illness, which the defense could have used to challenge
Avitto’s ability to perceive or recall events, including but not limited to, his
disorientation to time, his severely impaired judgment, that he suffered from mania,
his limited insight, his poor short term memory, and that he frequently was
prescribed Seroquel, a psychotropic drug that treats schizophrenia, mania andhallucinations, for his mental illness. Opening Br. 20-21, 49-51; A. 2256, 2259-
66, 2275-76, 2284-87, 2314, 2369, 2501.
CONCLUSION
For the foregoing reasons, the order of the court below denying John Giuca’s
C.PLL. § 440.10 motion should be reversed, the motion should be granted, Giuca’s
judgment of conviction should be vacated, and a new trial should be ordered.
Respectfully submitted,
[ARK A. BEDEROW
260 Madison Avenue
‘New York, New York 10016
212.803.1293
917.591.8827 (fax)
mark@bederowlaw.com
Andrew M. Stengel
Of Counsel
DATED: New York, New York
May 5, 2017
® Avitto perjured himself when he claimed he was prescribed Seroquel as a sleeping pill. A. 1751-
53. Rather than correct this false testimony, Nicolazzi exploited it. A. 1759-60.
20CERTIFICATE OF COMPLIANCE
This brief was prepared in compliance with the Supreme Court of the State of
New York, Appellate Division, Second Judicial Department’s Rules of Procedure §
670.10.3. This brief was prepared on a computer in Times new Roman typeface,
point size 14, double line spacing, and has a word count of 4,764.
Dated: New York, New York
May 5, 2017
A A. CM Esq.