To Be Argued By:

Mark A. Bederow
Time Requested: 30 Minutes
APL-2018-00123
Kings County Clerk’s Indictment No. 8166/04

Court of Appeals
STATE OF NEW YORK

>>>>
THE PEOPLE OF THE STATE OF NEW YORK,
Appellant,

against

JOHN GIUCA,
Defendant-Respondent.

BRIEF FOR DEFENDANT-RESPONDENT

MARK A. BEDEROW, ESQ.

Attorney for Defendant-Respondent
Carnegie Hall Tower
152 West 57th Street, 8th Floor
New York, New York 10019
212-803-1293
mark@bederowlaw.com

Date Completed: December 27, 2018

 TABLE OF CONTENTS

TABLE OF AUTHORITIES...................................................................................................................... iv
PRELIMINARY STATEMENT................................................................................................................1
INTRODUCTION..............................................................................................................................................2
STATEMENT OF FACTS............................................................................................................................5
The Trial.....................................................................................................................................................5
The People’s Initial Theory, Later Abandoned.....................................................5
Meredith Denihan’s Testimony......................................................................................7
Albert Cleary’s Testimony Contradicts Denihan’s............................................8
Lauren Calciano’s Testimony Contradicts Cleary’s........................................11
Anthony Beharry’s Testimony.....................................................................................12
John Avitto Saves the People’s Case........................................................................13
Charge Conference, Summations and the Verdict............................................15
The C.P.L. § 440.10 Hearing Evidence.................................................................................18
The Benefits Avitto Received in Exchange for His Cooperation............19
The Lack of Disclosure to the Defense...................................................................25
Police Testimony..................................................................................................................26
EAC Records Show Avitto at the Time of Trial as a
Manipulative Liar.................................................................................................................26
The Hearing Court Decision.........................................................................................................28
The Appellate Division Decision..............................................................................................29

i
ARGUMENT
POINT I
THE APPELLATE DIVISION CORRECTLY HELD THAT THE PEOPLE
VIOLATED BRADY BY FAILING TO DISCLOSE EVIDENCE OF
AVITTO’S MOTIVE TO FALSELY ACCUSE GIUCA........................................................31

A. The Applicable Law Concerning Disclosure of Motive Evidence................32

B. The Appellate Division’s Factual Findings Established That the
People Violated Brady..............................................................................................................34
C. The Undisclosed Evidence Was Material.....................................................................38
1. The Reasonable Possibility Standard of Materiality Applies.............38
2. The People May Not Discount the Materiality of the
Undisclosed Avitto Motive Evidence Based Upon the Claim
that Avitto Contacted Police Before He Left His Program
Because That Claim is Not in the Trial Record; in any Event,
The Claim is Untrue.....................................................................................................40
3. The Undisclosed Evidence Wasn’t Cumulative..........................................43
4. The Withheld Impeachment Evidence Affecting Avitto’s
Credibility was Material Under State and Federal Law
Because Avitto’s Testimony was Critical to the Outcome of
the Trial and the Other Evidence of Guilt Wasn’t
Overwhelming.................................................................................................................43

POINT II

THE APPELLATE DIVISION CORRECTLY HELD THAT THE PEOPLE

VIOLATED GIUCA’S RIGHT TO A FAIR TRIAL BY FAILING TO
CORRECT AVITTO’S MATERIALLY FALSE TESTIMONY.......................................47

ii
POINT III

THE CONVICTION SHOULD BE VACATED FOR THE ADDITIONAL

REASONS THAT THE PEOPLE SHOULD HAVE OBTAINED AND
DISCLOSED AVITTO’S EAC RECORDS UNDER BRADY AND SUCH
RECORDS CONSTITUTE NEWLY DISCOVERED EVIDENCE THAT
WAS MATERIAL TO THE OUTCOME..........................................................................................51
A. The EAC Records Should Have Been Disclosed and Were Material
to the Outcome of the Trial....................................................................................................52
B. The EAC Records are Newly Discovered Evidence of Such Great
Significance that They Entitle Giuca to a New Trial.............................................56

POINT IV

THE PEOPLE VIOLATED GIUCA’S RIGHTS UNDER ROSARIO BY

FAILING TO DISCLOSE AVITTO’S MATERIAL, ON-THE-RECORD
STATEMENTS DURING HIS SEPTEMBER 19, 2005, COURT
APPEARANCE.................................................................................................................................................58

CONCLUSION...................................................................................................................................................61

iii
 TABLE OF AUTHORITIES

Case

Banks v. Dretke, 540 U.S. 668 (2004)..................................................................................................60

Brady v. Maryland, 373 U.S. 83 (1963)...............................................................................................33

Davis v. Alaska, 415 U.S. 308 (1974) ..................................................................................................32

Giglio v. United States, 405 U.S. 150 (1972)...................................................................................33

Jenkins v. Artuz, 294 F.3d 284 (2nd Cir. 2002)................................................................................50

Kyles v. Whitley, 514 U.S. 419 (1995) ....................................................................................33-34, 38

Leka v. Portuondo, 257 F.3d 89 (2d Cir. 2001) ...........................................................................41

Matter of Bertha K., 58 A.D.2d 811 (2d Dept. 1977) ...................................................................60

Napue v. Illinois, 360 U.S. 264 (1959)....................................................................................32-33, 47

People v. Albro, 52 N.Y.2d 619 (1981) ..............................................................................................32

People v. Callendar, 90 N.Y.2d 831 (1997).....................................................................................38

People v. Colon, 13 N.Y.3d 343 (2009)...................................................................................passim

People v. Cwikla, 46 N.Y.2d 434 (1979) ........................................................................30, 33, 37, 49

People v. Fishman, 72 N.Y.2d 884 (1988)........................................................................................60

People v. Garrett, 23 N.Y.3d 878 (2014)....................................................................................34, 54

People v. Geaslen, 54 N.Y.2d 510 (1981).........................................................................................41

People v. Giuca, 158 A.D.3d 642 (2d Dept. 2018)...................................................................... 29

People v. Giuca, 58 A.D.3d 750 (2d Dept. 2009) ........................................................................18

iv
People v. Greene, 64 N.Y.2d 850 (1985)...........................................................................................32

People v. Hargrove, 162 A.D.3d 25 (2d Dept. 2018) ............................................................. 56n

People v. Negron, 26 N.Y.3d 262 (2015) ..........................................................................................38

People v. Novoa, 70 N.Y.2d 490 (1987)..................................................................................passim

People v. Rensing, 14 N.Y.2d 210 (1964) ...................................................................................56-57

People v. Salemi, 309 N.Y. 208 (1955) ..............................................................................................56

People v. Savvides, 1 N.Y.2d 554 (1956)....................................................................................47, 49

People v. Steadman, 82 N.Y.2d 1 (1993) ..............................................................................30, 33, 49

People v. Taylor, 26 N.Y.3d 217 (2015) .............................................................................................37

People v. Vilardi, 76 N.Y.2d 67 (1990) ...................................................................................4, 38-39

People v. Wright, 86 N.Y.2d 591 (1995) ....................................................................................33, 34

United States v. Agurs, 427 U.S. 97 (1976)...................................................................................... 41

United States v. Gallego, 191 F.3d 156 (2d Cir. 1999)...............................................................41

United States v. Stewart, 433 F.3d 273 (2d Cir. 2006) ..............................................................54

Statutes

C.P.L. § 240.45...................................................................................................................................................59

C.P.L. § 440.10(1)(g)............................................................................................................................ 56, 56n

v
COURT OF APPEALS
STATE OF NEW YORK
______________________________________________x

THE PEOPLE OF THE STATE OF NEW YORK, :

Appellant, :

APL-2018-00123
-against- :
Ind. No. 8166/2004
JOHN GIUCA, : (Kings County)

Defendant-Respondent. :
______________________________________________x

___________________________________________________

RESPONDENT’S BRIEF
___________________________________________________

PRELIMINARY STATEMENT

On February 7, 2018, the Appellate Division, Second Department, made

factual findings that the Brooklyn District Attorney’s Office falsely presented their

crucial “jailhouse informant” witness, John Avitto, as a Good Samaritan who had no

conceivable motive to lie, even though he volunteered to cooperate against John

Giuca after leaving an inpatient drug program and using drugs, was facing a state

prison sentence, and continually received “special attention” before he testified

1
against Giuca at trial. Seeking to rewrite those facts and reinstate the order of the

Supreme Court, Kings County (Chun, J.), dated June 9, 2016, denying Giuca’s

motion to vacate his conviction, entered October 19, 2005, the People appeal. The

defense respectfully submits this brief in opposition to the People’s appeal.

INTRODUCTION

The October 12, 2003, murder of Mark Fisher, immediately styled the “Grid

Kid Murder Case” in the New York tabloids, stymied investigators for more than

one year. In December 2004, after enduring extensive public criticism for the lack

of an arrest, the Brooklyn District Attorney indicted John Giuca for intentional and

felony murder, robbery, and possession of a weapon. The indictment was based

upon the testimony of Albert Cleary and Lauren Calciano, who claimed Giuca

admitted giving a gun to Antonio Russo at Giuca’s home,1 where Giuca remained as

Russo left and soon afterwards shot Fisher to death across the street from Cleary’s

home.

At trial, after Cleary’s and Calciano’s credibility was severely damaged,

prosecutor Anna-Sigga Nicolazzi salvaged her case with John Avitto, who gave a

radically different account of the incident. Avitto, a jailhouse informant, claimed

1
Russo was indicted for Fisher’s murder in November 2004. Giuca and Russo were tried together
before separate juries. Russo also was convicted of Fisher’s murder.
2
Giuca told him that, while robbing Fisher, Giuca pistol-whipped and beat Fisher

before Russo took Giuca’s gun and shot Fisher to death.

Adopting Avitto’s version of the crime and abandoning her earlier theory

based upon Cleary and Calciano, Nicolazzi portrayed Avitto as an altruist who had

no conceivable motive to lie, when, in fact, she knew this wasn’t true. Nicolazzi

knew that Avitto sought to cooperate against Giuca immediately after he absconded

from an inpatient drug program and was facing a lengthy prison sentence and that,

the same day she met Avitto for the first time, she had appeared in court with him,

notified the court about his cooperation, and successfully requested his release

without bail. Over the next few months, prior to testifying, Avitto frequently

violated the conditions of his drug program, but was released each time after his

cooperation against Giuca was discussed with the court. On one such occasion, just

three days before he testified, Avitto brought up his cooperation himself. None of

this evidence was disclosed to the defense.

Nicolazzi elicited misleading testimony from Avitto about the circumstances

surrounding his contact with detectives and herself, and about his poor performance

in drug treatment, which gave the jury the false impression that Avitto was

succeeding in his drug program and thus wasn’t motivated to falsely accuse Giuca

to help himself. Rather than correct Avitto’s inaccurate testimony, Nicolazzi

3
compounded its prejudicial impact by repeating it and emphasizing it in her

summation.

The People now seek to re-argue these facts, which the Appellate Division, in

overturning the hearing court’s decision, found, even though this Court lacks the

power to overrule such factual findings. On the law, the People contend that they

had the right to decide that Avitto didn’t have a tacit agreement with the prosecution

for leniency or an expectation of a benefit, even though such a determination is

exclusively reserved for the jury, assisted by disclosure to the defense so that the

facts are accurately presented for the jury’s consideration. The People also contend

that the more rigorous materiality standard should apply rather than the Vilardi

standard applied by the Appellate Division, even though the People waived this

argument below, and in any event, Giuca made “specific requests” for the withheld

impeachment evidence. See People v. Vilardi, 76 N.Y.2d 67 (1990).

As alternative grounds for affirming the Appellate Division’s decision, the

People further violated Brady by failing to disclose Avitto’s drug program records.

They reveal that Avitto disclosed severe psychotic symptoms to corrections

authorities, only to later claim when he wanted to be released into a drug program,

that he had feigned such symptoms to gain better housing in jail, and that after Avitto

was released, his poor performance in drug treatment gave him a strong incentive to

seek the People’s goodwill. Although Nicolazzi and other prosecutors knew Avitto

4
suffered from mental illness and drug abuse and they closely monitored Avitto’s

poor progression in his drug treatment program, Nicolazzi consciously avoided

obtaining these records despite the defense’s specific request for them. The result

was that the jury had no idea of the extent of Avitto’s motive to lie, the degree to

which his testimony misled the jury about that motive, or of his willingness to

manipulate the system to his advantage.

Finally, the Appellate Division should be affirmed because Giuca’s Rosario

rights were violated. Three days before he testified against Giuca, unbeknownst to

the defense, Avitto, to avoid jail, cited his upcoming testimony against Giuca as a

reason to be left at large and the court relied on it in leaving him free. His statement,

recorded by a court reporter, was never revealed to the defense, in violation of

Rosario.

STATEMENT OF FACTS

The Trial

The People’s Initial Theory, Later Abandoned

At approximately 6:40 a.m. on October 12, 2003, Edward Schoenfeld, an

occupant of 145 Argyle Road, Brooklyn, heard gunshots and called 911 (Schoenfeld:

A. 1052-53). Mark Fisher’s body was found lying at the foot of the driveway of 144

Argyle Road, a few blocks from John Giuca’s home and directly across the street

from Albert Cleary’s home. Fisher had been shot five times, and even though police

5
arrived within minutes, only two shell casings were recovered (Lupo: A. 1023-24).

Fisher’s pants were ripped, a $20 ATM receipt was found in his pocket, and his

wallet was missing, but was later recovered in a nearby sewer (Gaynor: A. 1295,

1305-07). No murder weapon was ever recovered. While Fisher’s body was found

on top of a blanket from Giuca’s home, (Gaynor: A. 1310-11), that didn’t link Giuca

to the crime any more than others who had been at his home earlier.

Apart from these basic facts, little else was clearly established at trial. Indeed,

material contradictions in the testimony of the People’s two key witnesses, Cleary

and Lauren Calciano, caused prosecutor Anna-Sigga Nicolazzi to virtually abandon

the theory she had advocated in her opening statement and to instead clutch onto a

very different story narrated by her last-minute jailhouse informant witness, John

Avitto.

In her opening statement, Nicolazzi explained that on October 11, 2003,

Fisher, a Fairfield University student, ran into his classmate Angel DiPietro2 in

Manhattan. DiPietro introduced Fisher to her friends, including Cleary. After a

period of time, they met Giuca, who invited the group back to his Brooklyn home

(A. 945-49). Nicolazzi alleged that after Giuca gained the “home court advantage,”

some of his friends, including Antonio Russo, arrived. She claimed that sometime

2
In 2012, DiPietro was hired as a Kings County assistant district attorney.
6
after Russo arrived, Giuca armed Russo and “ordered” him to harm Fisher (A. 949-

952).

Nicolazzi vowed that Giuca’s guilt would be proven by his own statements to

Cleary and Calciano. She represented that Calciano would testify that Giuca

admitted giving Russo a gun after Russo told him he wanted to rob Fisher (A. 956).

Cleary, Nicolazzi said, would testify that Giuca admitted “ordering” Russo to “show

[Fisher] what’s up” and giving Russo a gun because Fisher disrespected his home.

(A. 957-60). Nicolazzi didn’t mention Avitto. She didn’t allege that Giuca was

present or participated in the violence. But Nicolazzi’s theory of guilt unraveled

when she started presenting witnesses.

Meredith Denihan’s Testimony

Meredith Denihan testified that she and Angel DiPietro went to Manhattan,

where they ran into Fisher, DiPietro’s classmate (A. 1064-66). Denihan had two to

three drinks (A. 1072-73). Giuca invited Denihan, DiPietro, Fisher and Cleary to

his home (A. 1070-72). Denihan continued to drink and smoked marijuana at

Giuca’s (A. 1072-73, 1076). After they got to Giuca’s, some of his friends, including

Russo, arrived (A. 1074-75). According to Denihan, after she used the bathroom,

she noticed that Cleary, DiPietro, Fisher and Russo had all left Giuca’s house (A.

1076). She testified that Giuca told her that Cleary and DiPietro went to Cleary’s,

while Fisher and Russo went to an ATM (A. 1076-78). Denihan claimed that Giuca

7
joked “you never know what can happen at an ATM in Brooklyn,” told her that he

and his brother each had a gun, and that Giuca wanted Fisher to leave (A. 1077-79).

Denihan was “positive” that Fisher and Russo were at the ATM and that Cleary and

DiPietro had left for the evening when she spoke to Giuca (A. 1116-17). Denihan

spent the night on Giuca’s couch (A. 1085). When she fell asleep, Fisher was

sleeping on another couch (A. 1084). Denihan testified that when she woke up at

11:00 a.m., Fisher was gone, and she went into the kitchen and used Giuca’s phone

to call for a ride home (A. 1086-87, 1117-18).

Albert Cleary’s Testimony Contradicts Denihan’s

Cleary testified that while the group was in a back room at Giuca’s home,

Fisher sat on a table, and Giuca told him it wasn’t a chair before Giuca’s friend

Tommy Saleh told Fisher to get off the table (A. 1177). Cleary testified that Giuca

asked Russo to accompany Fisher to the ATM because Fisher didn’t know how to

get there (A. 1203-04).

Flatly contradicting Denihan, Cleary testified that he and DiPietro didn’t leave

Giuca’s home until after Fisher and Russo returned from the ATM. He was

“positive” that when he went home, he said goodbye to Denihan, who asked him if

DiPietro was leaving with him (A. 1204-06). Although Cleary and DiPietro

purportedly arrived at Cleary’s home at approximately 6:00 a.m., (DiPietro: A.

1140), and Fisher was shot at 6:42 a.m., directly across the street from Cleary’s

8
home, Cleary and DiPietro claimed they didn’t hear anything unusual3 (Cleary: A.

1220-27; DiPietro: A. 1142).

Cleary testified that at approximately 11:00 a.m., Giuca called him attempting

to locate Denihan (A. 1180, 1194, 1238). Cleary mentioned the shooting across the

street, which prompted Giuca to say “we might have had something to do with that”

(A. 1238-39).

After cleaning Cleary’s garage together, Cleary and DiPietro spent the

remainder of the day at DiPietro’s Long Island home (DiPietro: A. 1144-45). Cleary

watched a football game with her father (a criminal defense attorney), ate dinner

with her family, drove from Garden City to Fordham University in the Bronx to pick

up DiPietro’s boyfriend, returned to Brooklyn, and went out for pizza before arriving

home (A. 1242-43). Later that night, Cleary claimed he went to Giuca’s home, where

he met with Giuca and Calciano. (A. 1242-43).

According to Cleary, it was at this time, at night, that Giuca told him and

Calciano that Fisher disrespected his home, so he “basically told [Russo] to show

him what’s up” (A. 1244-46). Cleary claimed that Giuca said Russo asked for a gun

and Giuca obliged, after which Giuca led Fisher outside. There, Giuca admitted,

3
Several Argyle Road residents saw and/or heard a vehicle speed away from 144 Argyle Road
immediately after the shots were fired. The occupants of 144 Argyle Road heard a few voices,
including the distinct voice of a young female, immediately before the shots were fired. None of
these witnesses testified at trial (A. 3015-16, 3024-26).
9
Russo, waiting in ambush, shot and killed Fisher, before returning the gun to Giuca

and telling him “it’s done” (A. 1246). Under Cleary’s scenario, Giuca wasn’t present

when Russo murdered Fisher.

Cleary swore that he observed Calciano remove a gun bag from Giuca’s

bedroom (A. 1255).

Cleary had severe credibility problems. He denied any knowledge about

Fisher’s murder from October 2003 to November 2004 and during this period,

passed a polygraph test, only to change his story (despite the polygraph result) and

implicate Giuca after he was threatened with a probation violation for a vicious

assault he committed (Cleary: A. 1253, 1259-63, 1278-79; A. 3022-23). On direct,

Cleary described the incident underlying his arrest as a “fight;” but on cross, he

admitted he had kicked an unconscious man in the head (A. 1191-92 cf. 1270-73).

While Cleary testified at trial that Giuca commented on Fisher sitting on the

table—triggering Giuca’s anger and providing him motive—nine months earlier,

Cleary testified that just Saleh talked to Fisher about sitting on the table. Cleary first

“remembered” Giuca did too during a prep session with prosecutors the day before

he testified (A. 1200-02).

Cleary claimed that during the 11:00 a.m. call, Giuca was frantically trying to

locate Denihan (presumably out of concern that she might have heard something

hours earlier) (A. 1180, 1194, 1238-39). However, Denihan testified that she was in

10
Giuca’s kitchen, using his telephone, at that time (Denihan: A. 1086-87, 1117-18).

Indeed, Giuca’s and Cleary’s phone records proved that they first spoke after the

murder at 12:56 p.m., almost two hours after the crucial 11:00 a.m. call that Cleary

so vividly described in his testimony4 (A. 1806-07, 1904).

Lauren Calciano’s Testimony Contradicts Cleary’s

Calciano (like Cleary) repeatedly told investigators from October 2003 to late

2004 that she didn’t know anything about Fisher’s murder (A. 1516-28). She agreed

(like Cleary) to testify under pressure: she was confronted with Cleary’s claim that

she tampered with physical evidence and after she was warned that her failure to

cooperate against Giuca would end her goal of becoming a U.S. Marshal (A. 1513-

14, 1524-25; Beharry: A. 1584-85). She also claimed that detectives accused her of

saying things in prior interviews that she hadn’t said5 (A. 1518-19).

Calciano’s version of the meeting at which Giuca purportedly confessed was

strikingly different than Cleary’s. Whereas Cleary described it as a late-night

gathering after he spent the day on Long Island with DiPietro and her family, (A.

1242-43), Calciano testified that she and Cleary met Giuca during daylight hours,

before she went about her plans for that day (A. 1503-04, 1507, 1529-31).

4
DiPietro testified that the non-existent 11:00 a.m. call occurred in her presence and that Giuca
told Cleary that Fisher took a train home (A. 1143-44). But shortly after the murder, DiPietro
claimed it was Denihan who told her Fisher took a train home (A. 3024-26, 3058-60).
5
In 2014, Calciano, with the assistance of counsel, executed a sworn affidavit recanting her
testimony against Giuca (A. 2777-84).
11
 Calciano also contradicted Cleary’s crucial testimony about the content of

Giuca’s alleged admission. She said that Giuca admitted giving Russo a gun with

which to rob “Albert’s friend” [Fisher] and refuted Cleary’s testimony that Giuca

ordered Russo to harm Fisher (A. 1504-05, 1531-32). According to Calciano, Giuca

didn’t describe an ambush, but rather that Fisher and Russo left together after Fisher

said he wanted to go to an ATM (A. 1506, 1532-33).

Calciano emphatically denied Cleary’s sworn claim that she removed

evidence from Giuca’s home (A. 1513, 1550-52). Thus, one of the People’s two key

witnesses irrefutably lied under oath about whether Calciano committed a crime

during Giuca’s purported confession to them. Remarkably, Nicolazzi knew

beforehand that one of them was going to lie about this issue (Nicolazzi: A. 689-92).

Anthony Beharry’s Testimony

Anthony Beharry denied any knowledge about the murder until he was

pressured by the prosecution and offered immunity if he testified “truthfully”6 (A.

1576-77). He testified that shortly after the murder, he disposed of a gun of unknown

caliber for Giuca (A.1572-74). Beharry’s testimony that he took one gun from Giuca

was inconsistent with Cleary’s claim that Giuca told him Beharry got rid of “the

guns”7 (Cleary: A. 1387-88).

6
In 2014, Beharry executed a sworn affidavit recanting his testimony against Giuca (A. 2790-92).
7
The People presented evidence—outside of the presence of Giuca’s jury—that Russo dumped
the murder weapon in a sewer near the crime scene (Romero: A. 1675-85).
12
John Avitto Saves the People’s Case

Avitto was on the People’s witness list, but Nicolazzi never mentioned him in

her opening statement. However, near the end of the trial, she announced he would

be testifying. She represented that there was no Rosario material and disclosed only

a list of his criminal convictions. The defense obtained a one-day extension to seek

the records underlying these cases (A. 1669-71).

Avitto testified to admissions by Giuca that established an entirely different

theory of guilt than testified to by Cleary and Calciano and advocated by Nicolazzi

in her opening statement. Avitto testified that during Rikers Island visiting hours, he

overheard Giuca’s father ask Giuca, in the presence of his aunt and cousin, why he

had a gun with him, and Giuca replied “I just had it” (A. 1716-19). Avitto further

testified that Giuca, contrary to his supposed statement to Cleary and Calciano, later

told him that he (Giuca), Fisher and a third person went to an ATM. Giuca

supposedly became angry because Fisher withdrew only $20, and pistol-whipped

and beat him, before the unnamed person “pulled the gun” from Giuca and shot

Fisher to death (A. 1720-21).

Avitto denied any conceivable motive to lie and implied that he came forward

solely to do the right thing. Avitto said he first spoke to police about Giuca

“sometime” in June 2005, and that he wasn’t promised, didn’t receive, and didn’t

expect anything in exchange for his testimony (A. 1731-32). He claimed he was

13
“doing good” in an 18-24 month drug program he had entered after he was released

from jail [April 28, 2005] (A. 1724, 1730).

On cross, Avitto admitted that if he violated his drug program, he faced a

lengthy prison sentence (A. 1732-33). He admitted that he left his program on June

9, 2005, and returned to court with police on June 13, after a warrant had been issued

for his arrest (A. 1745-46). He denied using cocaine between June 9 and 13 (A.

1747). He said that his case “had nothing to do with” why he went to the authorities

(A. 1752). Avitto denied calling detectives “immediately” after he left his program

on June 9 (A. 1756).

On redirect, Nicolazzi elicited still more testimony from Avitto separating his

June 9 violation and his June 13 return-on-warrant from his decision to testify

against Giuca:

Q: [D]id they have to come find you, or did you contact

your counselor [Sean Ryan] on your own after you
left?

A: I went to Sean Ryan’s office. I contacted him on

my own. And then we walked over to the court and
Judge Parker and Ryan and the DA came up to the
judge.

Q: And, just so it’s clear, it’s not [Justice Marrus,

Giuca’s trial judge]?

A: Not [Justice Marrus]. The judge of my case and I

guess Sean Ryan had a talk and he got me another
shot.

14
(A. 1758) (emphasis added). Avitto didn’t identify Nicolazzi as “the DA.”

Nicolazzi led Avitto to reiterate that he first spoke to police “months” after he

entered a drug program (A. 1760). She didn’t ask him to specify when he first

contacted detectives, where they first met, or what his legal circumstances were at

that time.

After Avitto testified, the defense again sought information about Avitto’s

contact with the police. Nicolazzi reiterated that she knew detectives didn’t generate

any Rosario material because she “was present for all those interviews, there was

never anything documented, never any notes taken” (A. 1761) (emphasis added).

Charge Conference, Summations and the Verdict

At the charge conference, the court indicated it wouldn’t submit the

intentional murder count to the jury (A. 1870-71). Counsel sought a charge that

Avitto received a benefit, explaining that although he couldn’t prove it, “something

is happening to protect him” and “it was for [the jury] to decide whether or not”

Avitto received a benefit (A. 1874-77). Nicolazzi adamantly denied the suggestion,

declaring there was “absolutely no evidence” Avitto received a benefit (A. 1875-

76).

During his summation, defense counsel emphasized the contradictions

between Cleary and Calciano and their sworn inconsistent statements regarding

15
Calciano’s alleged removal of evidence, and argued that the People “pulled out”

Avitto after their “initial theory” fell apart because Cleary and Calciano were

exposed as liars (A. 1890-93, 1904-10).

Counsel surmised that Avitto contacted police for the first time after he left

his drug program on June 9, emphasizing that Avitto misled the jury about the

possible prison sentence he faced for violating his program and that case detectives

went to court with him on June 13 (A. 1915-17). He argued that Avitto misled the

jury by implying he cooperated “out of the goodness of his heart” (A. 1917).

In her summation, Nicolazzi highlighted Avitto’s reliability over that of

Cleary and Calciano. In stark contrast to her opening, where she relied exclusively

on Cleary and Calciano, (A. 956-60), she dismissed Giuca’s admission to them as

“bits and pieces” that “partially danced around the truth,” as opposed to the “no holds

barred” confession he made to his “similarly situated” jailhouse “confidante” (A.

1954).

According to Nicolazzi, Giuca’s active participation in the crime—a theory

which relied exclusively on Avitto—“made much more sense” than Cleary’s and

Calciano’s version, “which didn’t even make sense,” because Russo couldn’t have

subdued and killed Fisher by himself (A. 1962-63). Nicolazzi exploited Avitto’s

testimony to the hilt, even implying (despite the court’s withdrawal of the intentional

murder count) that Giuca shot Fisher (A. 1963).

16
 Nicolazzi assured the jury that Avitto was “very honest about his problems

and his criminal past. He freely admitted things that he clearly isn’t proud of and

that goes to his credibility” (A. 1957). She asserted “there was no evidence” that

Avitto was “making this up and willing to say anything because he’s trying to help

himself” (A. 1966).

Nicolazzi explained that “every time” Avitto left his program, he called his

counselor, “so [it’s not] surprising…that a judge would choose to give him multiple

chances” because he “act[ed] responsibly” (A. 1967). She stated that if Avitto had

received a benefit, there “would be absolutely nothing to hide about it” (A. 1967).

She reasoned that since Avitto pleaded guilty months before he called the police, “to

believe the defense” required finding a conspiracy between the prosecution, the

police and the court, which made “no sense and [wasn’t] corroborated” (A. 1968).

The bottom line, according to Nicolazzi, was that there was “absolutely no

evidence, no evidence at all” that Avitto had a motive to falsely accuse Giuca: “for

once, he tried to do something right” (A. 1968-69). Nicolazzi mocked the defense

for “wildly speculating” to the contrary and making argument “that was based on no

evidence that is anywhere in the record” (A. 1969).

The jury convicted Giuca of felony murder, robbery and criminal possession

of a weapon. He was sentenced to 25 years to life on the murder conviction and other

17
concurrent sentences. His conviction was affirmed on direct appeal. People v.

Giuca, 58 A.D.3d 750 (2d Dept. 2009), leave denied, 12 N.Y.3d 915 (2009).

The C.P.L. § 440.10 Hearing Evidence

The present motion was filed on March 26, 2015. It alleged that the People

violated Brady by failing to disclose evidence showing Avitto’s possible motive to

falsely accuse Giuca, and that the People violated Giuca’s right to due process by

failing to correct Avitto’s false testimony. It further alleged that the People’s failure

to provide the defense with a transcript of a proceeding where Avitto exploited his

cooperation against Giuca to avoid being incarcerated violated Rosario. After the

People disclosed Avitto’s EAC records8 on October 16, 2015, which contained

voluminous impeachment material and evidence of Avitto’s serious mental illness,

the defense added a claim that the nondisclosure of these records violated Brady and

also constituted newly discovered evidence warranting vacatur of Giuca’s

conviction.

The defense witnesses were Avitto, Detective Thomas Byrnes, ADA David

Kelly, Nicolazzi, and Giuca’s trial counsel, Samuel Gregory. The People called

Detective James McCafferty. Avitto’s EAC records, prosecution email and a journal

8
EAC is a social services agency that provides alternative-to-incarceration programs for
defendants with mental illness and/or drug addiction (Kelly: A. 389-90).
18
entry created by Kelly, the trial transcript, and transcripts from Avitto’s court

appearances were entered into evidence.

The hearing court determined that Avitto wasn’t a credible witness and the

Appellate Division didn’t disturb that finding (A. ix; 23). None of the evidence

described below is attributed to Avitto’s hearing testimony.

The Benefits Avitto Received in Exchange for His Cooperation

On October 24, 2004, Avitto was arrested for burglary and jailed at Rikers

Island. EAC helped Avitto resolve his criminal case with an alternative-to-

incarceration program. On February 8, 2005, Avitto pleaded guilty with the

understanding that if he completed a residential drug treatment program, the

indictment would be dismissed. During his plea, Avitto acknowledged his

understanding that if he left the program or was kicked out, the court was “required”

to sentence him to at least three and one-half years in prison (A. 2056-65).

On April 12, 2005, EAC notified Avitto’s prosecutor, Alisha Akmal, that

Avitto was scheduled to be released from jail to the Samaritan Village residential

treatment facility on his next court appearance (A. 2514). On April 28, Avitto

entered Samaritan Village, located at 88-83 Van Wyck Expressway, Jamaica,

Queens (A. 2092, 2222-23, 2462). Before he was released, the court warned Avitto

about the prison sentence he faced if he didn’t succeed. His case was adjourned to

June 9, for his first update (A. 2066-67).

19
 On June 9, 2005, Samaritan Village informed EAC and the court that Avitto

was noncompliant with its rules and continued to disregard proper procedure (A.

2092). The court warned Avitto to follow the rules or face the “big jail alternative,”

before adjourning the matter to August 9 (A. 2068-69).

At 5:25 p.m. that evening, Avitto absconded from Samaritan Village and used

cocaine (A. 2521, 2526). He then reached out to detectives seeking to cooperate

against Giuca (A. 2523).

On June 10, 2005, a warrant was issued for Avitto’s arrest (A. 2071-72). After

EAC counselor Sean Ryan notified Avitto about the warrant, Avitto told him he left

the program to admit himself into a psychiatric ward (A. 2522).

On June 12, 2005, Avitto used more cocaine (A. 2526). On June 13, Avitto

met with Nicolazzi and Detectives Byrnes and McCafferty at the DA’s Office to

offer information against Giuca (Nicolazzi: A. 496-97; Byrnes: A. 360-61;

McCafferty: A. 808). This was the first time Nicolazzi met Avitto (Nicolazzi: A.

496-97). Nicolazzi was present at every meeting detectives had with Avitto (A. vi,

1761).

After the meeting, Nicolazzi and Byrnes escorted Avitto to court (Nicolazzi:

A. 540). On the way there, they warned Avitto that he might be jailed (Nicolazzi: A.

548-49; Byrnes: A. 374). Nicolazzi, however, told Avitto that she would advise the

court about “what you said, but we don’t know” (Nicolazzi: A. 549).

20
 When she arrived in court, Nicolazzi told Avitto’s EAC counselor Sean Ryan

that Avitto “had contacted detectives on Thursday, June 9, 2005, stating he had

information” against Giuca (Nicolazzi: A. 508; A. 2523). Nicolazzi asked Ryan

about the possibility of placing Avitto in another program instead of merely releasing

him on his own recognizance (A. 2523). Ryan explained this wasn’t an option

because finding a suitable program would take time (A. 2523).

Nicolazzi personally appeared on Avitto’s return-on-warrant in place of the

calendar ADA (a fact she and Avitto omitted from Avitto’s trial testimony) (A. 34-

38). She immediately requested a private bench conference, at which she advised

the court that Avitto had just offered information against Giuca (Nicolazzi: A. 554).

She requested that Avitto be released on his own recognizance while EAC sought

another program for him (Nicolazzi: A. 561; A. 2523). The court accepted

Nicolazzi’s request, released Avitto on his own recognizance, and adjourned the

matter to June 21 (A. 2074-76).

On the morning of June 14, 2005, executive ADA Anne Swern emailed

Nicolazzi, EAC Director Lauren D’Isselt, other EAC employees, and ADAs David

Kelly and David Heslin:9

Please mark the John Avitto case for special attention.

Please keep u[s] posted as to his progress, i.e., if he
appears for re-assessment, the new site for his treatment,
etc. Thanks.
9
Kelly supervised mental health cases. Heslin was his supervisor (Kelly: A. 390).
21
(A. 2048).

Nicolazzi and Kelly interpreted Swern’s email as an instruction to “keep

track” of Avitto (Nicolazzi: A. 566-67; Kelly: A. 415). D’Isselt replied to Swern

that EAC was keeping Avitto “close on our radar” and that she was happy to discuss

it further (A. 2048-49). Around this time, Nicolazzi met with Akmal and took

possession of Avitto’s burglary case file (Nicolazzi: A. 574-75; A. 2052).

On June 14, Avitto refused to take a drug test (A. 2524). On June 15, Avitto

skipped an EAC appointment, which led D’Isselt to contact Swern, seeking her

position on violating him (A.2049, 2525). Swern emailed D’Isselt, Nicolazzi and

Heslin, reiterating that she was “very interested” in Avitto’s progress and to “make

sure we monitor him closely” (A. 2049). Later that day, Avitto appeared at EAC

and tested positive for cocaine (A. 2526). After initially lying that the positive test

likely resulted from a Novocain shot, Avitto eventually admitted to EAC case

worker Leila Percival that he used cocaine on June 9 and 12 (A. 2526). Percival

discussed Avitto’s situation with her supervisor, Ruth O’Sullivan. They agreed that

Avitto should be violated (A. 2526-27).

On June 16, 2005, O’Sullivan notified the court about Avitto’s cocaine use

(A. 2094). Later that afternoon, O’Sullivan expressed EAC’s concern about Avitto

to Kelly, who memorialized their conversation in a journal entry (Kelly: A. 416-23):

22
 …speak to Ruth: [Avitto] in pt. 30 and he turned himself
into da’s office and he has info on a murder case and he
was not remanded and he was in yesterday and + cocaine
[tested positive] and tadd [Treatment Alternatives for the
Dually Diagnosed] submitted memo to court and Anne
Swern knows. [D’Isselt] and Anne traded messages and
this was hours ago. He’s just positive but is not out of
control—he is using a lot…

(A. 2054) (emphasis added).

On June 17, 2005, a “severely disappointed” court warned Avitto that another

positive test would lead to his incarceration and adjourned his case to July 19 (A.

2077-80). After court, D’Isselt and Ryan confronted Avitto, warning him that

Nicolazzi would be told about his noncompliance (which established more reason

for Avitto to cooperate to win Nicolazzi’s continued favor):

Director [D’Isselt] explained to D [Avitto] that EAC

would be in direct contact with ADA Anna Nicolazzi
(718) 250-XXXX …and that EAC had full support of
[Nicolazzi] on any decisions made on behalf of [Avitto]
by EAC.

(A. 2528).

On June 21, 2005, the warrant squad erroneously was sent to pick up Avitto

(A. 2529). An ADA in court prepared a note that the matter was adjourned to July

19 and “someone took for ADA Nicolazzi in homicide” (A. 2005). That same day,

Swern contacted Nicolazzi seeking another update on Avitto’s status (A. 2048).

23
 On August 23, 2005, Avitto used more cocaine (A. 2543). He was ordered

into a detox center, but he absconded on September 2 (A. 2544-46). A warrant was

issued and Avitto appeared in court on September 6. At the bench, the court told

Ryan and the prosecutor it wouldn’t remand Avitto because it was “unsure” of

Nicolazzi’s position (A. 2547). The court warned Avitto about the prison sentence

he faced and released him (A. 2081-83). After court, Ryan spoke to Nicolazzi, who

expressed interest in meeting Avitto again (Nicolazzi: A. 594; A. 2547).

On September 7, 2005, Avitto entered Kingsboro rehab facility, located at 754

Lexington Avenue (A. 2124). Ryan and Nicolazzi spoke about Avitto on September

13 and 15, and Nicolazzi met with Avitto at Kingsboro on September 15, after Avitto

executed a waiver (Nicolazzi: A. 608; A. 2548).

On September 19, 2005, Avitto was kicked out of Kingsboro for refusing to

comply with their rules, which resulted in another violation and unplanned court

appearance (A. 2549). At the bench, Ryan informed the court that he left a message

with Nicolazzi about the violation. The court stated Avitto would be released due

to his upcoming testimony (A. 2549). On the record, the court criticized Avitto for

his consistently “not good” record of compliance. Avitto offered nerves associated

with his upcoming testimony against Giuca as an excuse for his latest violation. The

court told him that “apparently we’re going to give you another opportunity,” but

that another violation would result in the promised prison sentence (A. 2084-87)

24
(emphasis added). Later that day, Ryan told Nicolazzi “what happened” in court

(Nicolazzi: A. 608; A. 2549).

On September 20, 2005, two days before Avitto testified, Bridge Back to Life,

the outpatient program EAC placed him in while it sought an inpatient program,

compelled Avitto to sign a “treatment contract” due to his continued noncompliance

(A. 2211).

The Lack of Disclosure to the Defense

Giuca’s trial counsel, Samuel Gregory testified that he first learned of Avitto

when he received the People’s witness list shortly before jury selection (A. 760). He

wasn’t provided any Avitto-related Brady or Rosario material (A. 758). When

Nicolazzi announced near the end of the trial that she would be calling Avitto, she

gave Gregory a list of Avitto’s convictions. Gregory was unaware of Avitto’s EAC

records and his September 19 court appearance (A. 755-56). Since he knew nothing

about Avitto other than his list of convictions, the only documents he was able to

gather about him were some criminal complaints from Avitto’s past cases (Gregory:

A. 762-63; Avitto: A. 1734-43). Gregory wasn’t told the substance of Avitto’s

testimony before he testified (A. 762). He prepared for trial assuming the

prosecution’s theory was that Giuca was not present when Fisher was killed (A.

760).

25
Police Testimony

Detectives Byrnes and McCafferty testified that they met Avitto—without

Nicolazzi—in Avitto’s Brooklyn inpatient program before he absconded on June 9,

2005. Byrnes recalled that they met “a few weeks” before June 13 in East New York

(A. 361-62). McCafferty believed they met “in May or June 2005” in “Brooklyn

North” (A. 796). Neither detective took any notes at this purported spring 2005

interview (Byrnes: A. 362; McCafferty: A. 808, 810). Both detectives testified that

they next met Avitto at the DA’s Office with Nicolazzi on June 13.10 (Byrnes: A.

360-61; McCafferty: 798-99). Nicolazzi, on the other hand, represented to the trial

court on September 22, 2005, that she was present at every meeting with Avitto, and

testified that she first met Avitto on June 13 (Nicolazzi: A. 496-97; A. 1761).

EAC Records Show Avitto at the Time of Trial as a Manipulative Liar

Avitto’s EAC records, which were disclosed in October 2015, demonstrated

his noncompliance with his drug program, his willingness to lie to help himself, and

that he suffered from serious mental illness. This was consistent with information

known to the prosecution but not to the defense: Nicolazzi met Avitto while he had

a warrant for leaving his program, and she and Avitto spoke “at length on multiple

occasions” about his mental health and drug problems (Nicolazzi: A. 509-10).

Byrnes believed that Detective Grafakos, not McCafferty, was at the DA’s Office on June 13 (A.
10

369-70).
26
 According to the records, after Avitto was arrested in October 2004, he

quickly claimed that he had a history of suicide attempts and experiencing auditory

hallucinations. He said that his $200-a-day cocaine habit “helped take away the

voices” (A. 2284). He warned doctors that voices were telling him to kill himself

and if he wasn’t transferred to the hospital, “you’ll see me in the news” (A. 2285).

Within days, Avitto achieved his goal of being transferred from general population

to the mental health wing (A. 2313-15).

After Avitto pleaded guilty on February 8, 2005, he remained in jail because

EAC couldn’t place him in an inpatient program due to his severe psychiatric history

(A. 2191, 2506-08). On March 1, Avitto’s EAC counselor told him that his mental

illness was preventing his release from jail (A. 2508). On March 9, Avitto told his

counselor that he “fabricated his suicidal ideation and his history of suicide attempts

in Oct. 2004…in order to stay out of general population” (A. 2287-88).

On March 11, Avitto admitted to a Rikers psychologist that he lied about his

mental illness to gain better housing in jail because he “had to do what I had to do

to change my situation” (A. 2289) (emphasis added). On March 13, Avitto

rationalized his behavior to his EAC counselor: “look at it from my side. I had to

say the things I said because at the time/ I got court” (A. 2466).

On July 18, 2005, while he was cooperating against Giuca, Avitto

contradicted what he said in March, and again claimed that he had a history of

27
attempted suicide and experiencing auditory hallucinations (A. 2262-66). He told

doctors that voices told him to harm himself and that in the past week he “saw

snakes” during a visual hallucination (A. 2265). Avitto’s psychiatrist documented

“moderate to severe” concern on Axis IV, with reference to his legal situation11 (A.

2265).

In late August 2005, Avitto experienced mania and “racing thoughts,” and

admitted using heroin and cocaine earlier that month (A. 2256-59).

The Hearing Court Decision

The hearing court denied Giuca’s Brady claims, holding there was no proof

of an understanding or agreement between Avitto and the prosecution, and that the

People weren’t obligated to obtain or review his EAC records. The court also held

there was no reasonable possibility that the undisclosed evidence would have

affected the verdict (A. 14-15, 18-19).

The court denied the Rosario claim, holding that the People didn’t possess the

September 19 transcript, Giuca (despite not knowing about it) had equal access to it,

and in any event, its nondisclosure wouldn’t have affected the verdict (A. 19-20).

The court concluded that Avitto’s EAC records didn’t constitute newly

discovered evidence because they were merely impeachment material and, in any

11
Axis IV of the DSM-IV multi-axial system describes psychosocial and environmental factors
affecting mental disorders.
28
event, their disclosure wouldn’t have created a reasonable probability that the verdict

would have been different (A. 20-21).

The Appellate Division Decision

The Appellate Division reversed the Supreme Court on the facts and the law.

People v. Giuca, 158 A.D.3d 642, 642 (2d Dept. 2018) (A. v-ix).

The court found that the hearing evidence demonstrated: (1) on June 9, Avitto

contacted the police to offer his cooperation against Giuca immediately after he left

his drug program; (2) on June 10, a warrant was issued for Avitto’s arrest; (3) on

June 13, Avitto met Nicolazzi and told her that he had a warrant because he had left

his program; (4) after Avitto offered information against Giuca, Nicolazzi

accompanied Avitto to court and informed the judge that he was cooperating on a

murder case; and (5) Nicolazzi discussed with Ryan and the court the possibility of

having Avitto enter another program and live with his mother (A. vii).

The Appellate Division further found that Avitto wasn’t performing well in

the drug program and that, on at least one occasion after June 9, his cooperation and

upcoming testimony was discussed by the court before it released him. It found that

the People requested that EAC treat Avitto’s case for “special attention” and that

EAC update the People regarding Avitto’s progress in drug treatment. Finally, it

found that despite a specific Brady demand, none of this evidence was disclosed to

the defense (A. vii-viii).

29
 Based upon these factual findings and this Court’s decisions in People v.

Steadman, 82 N.Y.2d 1 (1993), People v. Novoa, 70 N.Y.2d 490 (1987), and People

v. Cwikla, 46 N.Y.2d 434 (1979), the court held that the People had a duty to disclose

Avitto’s initial contact with the police and the circumstances surrounding

Nicolazzi’s appearance in court with him because they suggested a “strong

inference” that Avitto expected a benefit and had reached a tacit understanding with

the prosecution that it would assist him in obtaining it, which tended to show a

motivation for Avitto to lie (A. viii).

The court also held that under People v. Colon 13 N.Y.3d 343 (2009),

Steadman, and Novoa, Nicolazzi violated Giuca’s right to a fair trial by failing to

correct Avitto’s misleading testimony about the circumstances surrounding his

contacts with her and the police, and his poor performance in drug treatment, and

that instead of correcting Avitto’s misleading testimony, she compounded the

prejudice by reiterating and emphasizing it during summation (A. viii-ix).

Because Avitto’s credibility was a “pivotal consideration for the jury,” and

the “primary” remaining evidence against Giuca was “conflicting” inculpatory

statements Cleary and Calciano claimed he had made, the Appellate Division held

that the People’s misconduct was material and prejudicial and ordered the conviction

vacated (A. viii-ix).

30
 ARGUMENT

POINT I

THE APPELLATE DIVISION CORRECTLY HELD

THAT THE PEOPLE VIOLATED BRADY BY
FAILING TO DISCLOSE EVIDENCE OF
AVITTO’S MOTIVE TO FALSELY ACCUSE
GIUCA

Brady and its progeny require the prosecution to disclose evidence within its

possession or control that is favorable to the defense and material to the outcome of

the trial. The People acknowledge that their Brady obligation includes disclosing

evidence of a witness’ tacit agreement for a benefit in exchange for cooperation as

well as evidence showing that a witness has such an expectation. See People’s Brief

at 40. Yet they maintain that they may decline to make such a disclosure where the

prosecutor subjectively concludes there is no such agreement or expectation and thus

any conclusion to the contrary by the jury would be “false.” Id. at 41-42. This

position deprives a defendant of his constitutional right to have the jury, rather than

a prosecutor, act as the factfinder.

As this Court’s precedent clearly establishes, the People must disclose

evidence in their possession that could have led the jury to reasonably conclude,

based on the circumstances, that a witness had a tacit agreement with the prosecution

to receive a benefit or expected or hoped for one, and therefore might have had a

motive to lie that potentially affected the truthfulness of his testimony. The self-

31
serving denials by a prosecutor and her witness cannot justify withholding evidence

from which a jury might reasonably conclude, contrary to the prosecutor’s claimed

belief, that her witness had a motive to lie.

The People conveniently omit from their brief that the Appellate Division

reversed the hearing court not only on the law, but on the facts. Under the facts

found by the Appellate Division, which this Court is powerless to overturn if there

was support in the record for them, see People v. Greene, 64 N.Y.2d 850, 851 (1985);

People v. Albro, 52 N.Y.2d 619, 624 (1981), a jury could have reasonably concluded

that Avitto had a tacit agreement with the prosecution for a benefit, or at least hoped

for one in exchange for his testimony.

Finally, contrary to their argument, the People below waived any objection to

the Appellate Division’s application of the State materiality standard under Vilardi.

Even were this not so, there clearly was a specific request for the impeachment

material that the People withheld.

A. The Applicable Law Concerning Disclosure of Motive Evidence

A defendant has a constitutional right to present evidence of a witness’

motive, bias, or interest in testifying against him. Davis v. Alaska, 415 U.S. 308,

316-17 (1974). Evidence of a witness’ motive to falsely accuse a defendant to help

himself with his own legal problem is always relevant to his credibility. Napue v.

32
Illinois, 360 U.S. 264, 270 (1959); Colon, 13 N.Y.3d at 350; Steadman, 82 N.Y.2d

at 7-8.

At the same time, the People must disclose evidence impeaching a prosecution

witness’ credibility where such information is in their possession, custody or control.

Giglio v. United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83

(1963). It follows logically that the People must disclose evidence tending to show

a witness’ motive, bias, or interest.

Accordingly, this Court has held that the People’s Brady obligation includes

evidence that “creates an expectation” in a witness of some benefit. Novoa, 70

N.Y.2d at 497. This includes evidence that is “of such a nature that the jury could

have found, despite the witness’ protestations to the contrary,” that a tacit agreement

existed between the witness and prosecution “or at least so the witness hoped.”

Cwikla, 46 N.Y.2d at 441 (emphasis added). Even where there is no promise, but

there is a “strong inference, at the very least” of an expectation of leniency, the

evidence should be presented to the jury. Id. at 442 (emphasis added). Evidence that

“could have presented the jury with a motive” for a witness to favor the prosecution

over the defendant “falls within the ambit of the Brady rule.” People v. Wright, 86

N.Y.2d 591, 596 (1995) (emphasis added).

The People’s Brady obligation applies without consideration to the

prosecutor’s good or bad faith. Steadman, 82 N.Y.2d at 7-8. The prosecution has a

33
duty to learn of favorable evidence known to others working on its behalf. Kyles v.

Whitley, 514 U.S. 419, 437-38 (1995); Wright, 86 N.Y.2d at 598. Whether the People

have “possession or control” of favorable impeachment material is not interpreted

narrowly. People v. Garrett, 23 N.Y.3d 878, 886-89 (2014). Thus, they may not

consciously avoid their duty to disclose favorable impeachment material in another

agency’s records through a “disinclination” to ask about impeachment material “that

should have been of particular interest in view of its pertinence” to a witness’

credibility. Novoa, 70 N.Y.2d at 498.

B. The Appellate Division’s Factual Findings Establish That the People

Violated Brady

The Appellate Division made factual findings, fully supported by the hearing

record, supporting its conclusion that the People violated Giuca’s right to disclosure

of material impeachment evidence. The court found that Avitto contacted authorities

with a months-old jailhouse confession claim immediately after he absconded from

his inpatient drug program, used cocaine, and he knew he was facing years of

imprisonment. After interviewing Avitto and learning that (1) he was willing to

testify against Giuca and (2) there was a warrant for his arrest, Nicolazzi, a homicide

prosecutor who otherwise would have had nothing to do with Avitto or his low-level

burglary case, accompanied him to court, discussed with his EAC counselor having

him placed into a new program and informed the court of Avitto’s potential

34
cooperation, after which he wasn’t remanded, but was instead placed in a less

restrictive environment (outpatient drug treatment) than he had before he offered his

cooperation to Nicolazzi (A. vii-viii).

The Appellate Division further found that, due to Avitto’s status as a

cooperating witness, Avitto wasn’t remanded after he committed additional

violations of the conditions of his release (A. viii).

The above facts clearly supported the Appellate Division’s conclusion that

there was a reasonable basis for the jury to find that Avitto and the prosecution had

a tacit agreement or, at the very least, that Avitto had reason to believe he had

received and/or would receive benefits in exchange for his cooperation, and that such

facts should have been disclosed under Brady and Vilardi because of their potential

impact on the jury’s evaluation of Avitto’s motive to lie.

The People’s argument that Giuca had no right to disclosure of the above

circumstances because a juror’s conclusion he had a motive to lie would have been

“false” misunderstands the purpose of Brady and this Court’s precedent. Based upon

the factual circumstances found by the Appellate Division, it was for the jury, aided

by the further factual development and arguments of the parties, to determine

whether Avitto had a motive to lie affecting his credibility. This ultimate factual

issue was not one that the People and their witness, with their interest in conviction,

were entitled to make.

35
 As the Appellate Division correctly pointed out, Avitto’s denial that he had

an unspoken agreement or understanding of how his cooperation might earn him the

substantial benefits it did bring about wasn’t conclusive of the issue, but was just as

much open to challenge as his inculpatory testimony itself. By depriving the defense

of the information necessary to show Avitto’s motive to lie, the People prevented

the defense from making an effective showing that Avitto’s steadfast denial that his

legal status had anything to do with testifying against Giuca was false, that his denial

of a motive to lie was false, and that therefore his overall testimony should be

discredited.

Moreover, Nicolazzi’s successful concealment of her June 13 meeting with

Avitto and her personal presence and participation in the court appearance at which

Avitto was released on his own recognizance suggests that she and Avitto

understood there was a direct link between his proposed cooperation against Giuca

and the leniency he then received. Nicolazzi obviously prepared Avitto to avoid

mentioning the timing of their initial meeting and to testify that a “DA” was present

in court without mentioning that it was her. They colluded to cover up her

involvement in the events of June 13 precisely because they knew full disclosure

would reveal the falsity of Avitto’s testimony, and Nicolazzi’s argument, that Avitto

offered his cooperation against Giuca solely “for once, to do something right” (A.

36
1966-69); see Cwikla, 46 N.Y.2d at 442 (“misleading and obstructive tactics” by a

prosecutor strengthen the inference that the witness expected leniency).

Two decisions by this Court which addressed the impact on the witness’

credibility by a homicide prosecutor’s appearance on the witness’ own case, and

which were relied on by the Appellate Division, strongly support Giuca’s argument.

In People v. Colon, 13 N.Y.3d 343 (2009), the Court held that the People should

have disclosed that the homicide prosecutor attended, and conveyed a plea offer in,

the witness’ Special Narcotics case, even though the prosecutor claimed she had

nothing to do with the Special Narcotics prosecutor’s formulation of the plea offer.

The Court concluded that the witness’ inaccurate testimony that the trial prosecutor

had “no involvement” in his case misled the jury about whether “the witness may be

biased in favor of the People.” Id. at 348-50.

Similarly, in People v. Taylor, 26 N.Y.3d 217 (2015), the defendant’s

homicide prosecutor attended a witness’ probation violation appearance and asked

the court to release him without bail. Although the Court reversed the conviction on

the ground that the trial court erred in failing to provide this testimony to the jury in

response to a jury note, the reason the error was prejudicial was because the

prosecutor’s appearance had “an especially strong bearing” on the witness’

credibility because it suggested he had a “motive to testify falsely in favor of the

prosecution.” Id. at 225-27.

37
C. The Undisclosed Evidence was Material

1. The Reasonable Possibility Standard of Materiality Applies

Under federal law, a Brady violation is material if there is a reasonable

probability of a different result had the evidence been disclosed. This standard is

met when the suppressed evidence “undermines confidence in the outcome of the

trial.” Kyles, 514 U.S. at 434-35.

New York applies a more lenient standard if the defense made a specific

demand for the evidence: the failure to disclose is “seldom, if ever” excusable and

reversal is required if there is any reasonable possibility that the undisclosed

evidence contributed to the verdict. People v. Vilardi, 76 N.Y.2d 67, 77 (1990). The

Vilardi standard is met if the withheld evidence “would have added a little more

doubt to the jury’s view of the evidence” and “a little more doubt would have been

enough.” People v. Negron, 26 N.Y.3d 262, 271 (2015).

The Appellate Division and the Supreme Court applied the Vilardi standard

to Giuca’s Brady claims (A. vi-ix, 14, 18). The People now argue for the first time

that the reasonable probability test applies because the defense didn’t specifically

request the undisclosed evidence. People’s Brief at 42-45. However, this argument

is not only untrue, but is waived by the People’s failure to advance it in the Appellate

Division. People v. Callendar, 90 N.Y.2d 831, 832 (1997).

38
 Even if the People’s argument isn’t waived, it is factually wrong. Here, as

Vilardi provides, 76 N.Y.2d at 77, “heightened rather than lesser prosecutorial care

is appropriate” because the defense provided the People with “specific notice of its

interest in” the material that was suppressed.

The defense demanded evidence (1) “which tended to adversely affect the

credibility of witnesses,” (2) of the identity of witnesses who provided information

to the prosecution, including the timing and circumstances of how they provided that

information, (3) that any witness received psychiatric or drug treatment, and (4)

regarding Avitto’s contact with the police (A. vi, 894-97, 1761). These requests

were specific enough to put the People on notice to disclose the circumstances of

Avitto providing information to the prosecution, especially since he did so after

problems arose in his drug treatment program.

Thereafter, defense counsel tried to cross-examine Avitto about the

relationship between his drug program failure and his coming forward to cooperate

against Giuca.

At the charge conference, defense counsel further demonstrated his interest in

evidence that Avitto received a benefit:

…although there is a statement that [Avitto] didn’t receive

[a benefit], it’s really not up to me to decide or Ms.
Nicolazzi to decide. It’s up to the jurors to decide…I can’t
prove what is going on but something is happening here to

39
 protect him, that it’s up to [the jury] to decide whether or
not he got consideration.

(A. 1874-77). Each side addressed this issue in summation. Nicolazzi’s failure to

disclose was even more inexcusable in view of her pretrial response to Giuca’s

specific requests:

The People are aware of their continuing duty under Brady

to disclose exculpatory evidence to the defense and will
honor that obligation. Any arguably exculpatory material
will be submitted to the Court for an in camera inspection.
At this time, however, no such evidence is known to the
People to exist.

(A. 920). Nicolazzi knew full well that the defense wanted the Avitto impeachment

material the People had in their possession. The Vilardi standard plainly applies.

2. The People May Not Discount the Materiality of the Undisclosed

Avitto Motive Evidence Based Upon the Claim that Avitto
Contacted Police Before He Left His Program Because That Claim
is Not in the Trial Record; in any Event, the Claim is Untrue

The People argue that the hearing testimony of Detectives Byrnes and

McCafferty that they interviewed Avitto at his inpatient program weeks before he

violated the conditions of his drug treatment and faced imprisonment rendered the

undisclosed impeachment evidence immaterial. People’s Brief at 47-51. This is

wrong for several reasons.

First, it was for the jury to determine the significance to Avitto’s credibility

of his actions beginning June 9, 2005, by considering that evidence in relation to the

40
other trial evidence. Materiality must be judged by comparing the withheld evidence

to the other evidence in the trial record, not to evidence the People never utilized

and the jury never evaluated. See United States v. Agurs, 427 U.S. 97, 122 (1976)

(“the omission must be evaluated in the context of the entire [trial] record”); People

v. Geaslen, 54 N.Y.2d 510, 515 (1981) (an after-the-fact explanation cannot justify

non-disclosure or defeat materiality); Leka v. Portuondo, 257 F.3d 89, 104 (2d Cir.

2001) (“materiality is assessed in light of the evidence adduced against the defendant

at trial”); United States v. Gallego, 191 F.3d 156, 165 (2d Cir. 1999), abrogated on

other grounds by Crawford v. Washington, 541 U.S. 36 (2004) (then Circuit Judge

Sotomayor wrote “it is inconsistent with the applicable…standard for the

government to evaluate [materiality] with hypothetical testimony that was not

delivered to the jury”). In this case, the People elicited no evidence from Byrnes,

McCafferty, Avitto, or anyone else, that Avitto contacted police about Giuca before

June 9 or was interviewed by anyone before the June 13 meeting at Nicolazzi’s

office. Thus, the People’s untested claim may not be considered, along with the trial

evidence, on the issue of materiality.

Second, the People are wrong that the Appellate Division, by noting that the

hearing court credited all the witnesses other than Avitto, somehow implicitly

accepted the detectives’ testimony about a pre-June 9 meeting with Avitto at his drug

program. To the contrary, regardless of the hearing court’s general credibility

41
findings, the Appellate Division specifically found that Avitto’s “initial contact with

the police regarding [Giuca’s] case” was “after [he] left the drug program on June 9,

2005” (A. vii-viii) (emphasis added).

Moreover, the Appellate Division specifically noted, and credited, Nicolazzi’s

representation to the trial court that she was present for every police interview of

Avitto, and that she first met Avitto on June 13, 2005 (A. vi; 1761; Nicolazzi: A.

496-97). It further credited Sean Ryan’s June 13 contemporaneous entry in Avitto’s

EAC records that Nicolazzi told him Avitto “contacted detectives on Thursday, June

9, 2005, stating he had information” against Giuca (A. vii, 2523; Nicolazzi: A. 508).

This ruled out a meeting between Avitto and detectives prior to June 9.

If Avitto had made statements accusing Giuca before his motive lie arose on

June 9, Nicolazzi would have brought out such a prior consistent statement at trial.

Instead, she merely elicited from Avitto that he contacted detectives “sometime in

June 2005,” “months” after he entered an inpatient program (A. 1731, 1757-58). Her

failure to elicit any prior consistent statement to detectives shows that the detectives’

hearing testimony, ten years after trial, was incorrect.12

12
Both detectives testified that they met Avitto in Brooklyn, (Byrnes A. 362; McCafferty: A. 796),
even though the hearing evidence proved that from April 28 to June 9, 2005, Avitto’s program was
in Jamaica, Queens (A. 2092, 2222-23, 2462).
42
 3. The Undisclosed Evidence Wasn’t Cumulative

The People argue that the undisclosed evidence was cumulative of the

“extensive impeachment” of Avitto. People’s Brief at 46-51. However, due to the

People’s suppression of the impeachment evidence at issue in this appeal, the

defense mostly was limited to attacks on Avitto’s general credibility (Avitto: A.

1733-43). Without the undisclosed impeachment material, defense attempts to

expose Avitto’s self-interest in lying against Giuca—far more important to the

defense case than Avitto’s general credibility—were thwarted by Avitto’s denials

and Nicolazzi’s relentless mocking of the defense’s “speculation” and “lack of

corroboration” for its argument (Avitto: A. 1745-46, 1750-52, 1756; A. 1966-69).

The withheld evidence also would have shown that Avitto lied concerning the

circumstances of his coming forward, and allowed the jury to apply the trial court’s

“falsus in uno” instruction and disregard all of Avitto’s testimony (A. 1984). The

withheld evidence was not cumulative.

4. The Withheld Impeachment Evidence Affecting Avitto’s

Credibility was Material Under State and Federal Law Because
Avitto’s Testimony was Critical to the Outcome of the Trial and
the Other Evidence of Guilt Wasn’t Overwhelming

The People argue that the testimony of Albert Cleary and Lauren Calciano, as

well as some supporting evidence, overwhelmingly established Giuca’s guilt.

People’s Brief at 52-53. However, this ignores that Nicolazzi abandoned her theory

43
of guilt based upon the testimony of Cleary and Calciano that Giuca wasn’t present

and merely aided and abetted Russo to commit the robbery and killing, in favor of a

contradictory theory, based entirely on Avitto, that Giuca robbed, pistol-whipped,

and possibly shot Fisher to death. Indeed, Nicolazzi argued that Giuca’s statements

to Cleary and Calciano were inaccurate and that his “no holds barred” admission to

his “confidante” Avitto was the only “common sense” description of Fisher’s murder

(A. 1954, 1962-63). Avitto’s credibility thus was central to the outcome. Evidence

showing that he had a motive to fabricate a jailhouse confession and that he lied

about why he came forward unquestionably was material to the outcome of the trial.

Notably, Nicolazzi acknowledged that Avitto’s testimony was “significant,”

his credibility important, and that she decided to call him as a witness after Cleary

and Calciano already had testified (Nicolazzi: A. 674, 688, 734-35; A. 1155, 1374).

Although the jury knew that Avitto was a “jailhouse informant,” Nicolazzi assured

the jury that “[Avitto] was being truthful and you could trust him,” he was “very

honest about his problems and his criminal past,” and he “freely admitted” bad things

about himself (A. 1956-57). Nicolazzi argued that Avitto was an altruistic man who

“for once, tried to do something right” by cooperating against Giuca, and that there

was “absolutely no evidence, no evidence at all” that Avitto lied to help himself (A.

1966-69). She exploited Avitto’s inaccurate testimony about “doing well” in his drug

program, explaining that “it’s there for you to see in black and white” that the court

44
released him because he “responsibly” called his counselor after he left his program

(A. 1967).

Even apart from the inherent contradictions between the Cleary and Calciano

accounts, on the one hand, and Avitto’s on the other, Cleary and Calciano weren’t

reliable and credible witnesses. They admitted having repeatedly denied knowing

anything about Fisher’s murder for more than one year. Cleary cooperated only after

being threatened with a probation violation, which would have led to his

incarceration. He testified to an important—yet nonexistent—telephone call

between himself and Giuca. His testimony that Giuca armed Russo and ordered him

“to show Fisher what’s up,” (A. 1244-46), arguably supported an intentional murder

theory, a count that wasn’t event submitted to the jury.

Calciano only implicated Giuca after she learned that Cleary had accused her

of tampering with physical evidence and was pressured to deflect attention from

herself. Meanwhile, the jury would have been hard-pressed to believe either of them

after they accused each other of lying, which proved to the jury that at least one of

them committed perjury. Further, their accounts of Giuca’s supposed admission

were radically different, suggesting that they were making up their accounts. Which

witness was the jury to credit when they differed so significantly from each other

and called each other a liar? The destruction of Cleary’s and Calciano’s credibility

45
explained why Nicolazzi, at the last minute, turned to a sanitized jailhouse informant

to save her case.

The other evidence was no more convincing. Beharry was pressured into

testifying that he disposed of a gun of unknown caliber for Giuca shortly after the

murder, which didn’t establish that Beharry handled the murder weapon. Even if

Giuca did ask Beharry to get rid of a gun, this didn’t prove that he aided and abetted

a robbery or murder, but just that he realized police were likely to search his house

given that Fisher was last seen there.

Detective Murphy’s testimony that he heard Giuca tell his father, “let me see

what they have, and see what they offer me,” (A. 1392-93), wasn’t incriminating as

to the murder. Giuca knew he was about to be questioned about hosting a party at

which there were drugs and alcohol, and possibly a firearm, and where Fisher was

last seen before he was found murdered. His statement was consistent with deciding

whether to cooperate with the police, not to any consciousness of guilt for the

murder.

The People’s contention that a phone call from Russo to Giuca three minutes

before the murder established Giuca’s guilt is pure conjecture. There was no

evidence that Giuca even answered the call. Moreover, a phone call from Russo to

Giuca three minutes before the murder contradicted Nicolazzi’s argument, based

upon Avitto’s testimony, that Giuca and Russo attacked Fisher together.

46
 Accordingly, the Appellate Division’s holding that the People’s Brady

violation was material to the outcome of the trial was correct.

POINT II

THE APPELLATE DIVISION CORRECTLY HELD

THAT THE PEOPLE VIOLATED GIUCA’S RIGHT
TO A FAIR TRIAL BY FAILING TO CORRECT
AVITTO’S MATERIALLY FALSE TESTIMONY

A prosecutor must correct a witness’ false or misleading testimony, including

about matters that relate to the witness’ credibility. Napue, 360 U.S. at 269; Colon,

13 N.Y.3d at 349; People v. Savvides, 1 N.Y.2d 554, 556-57 (1956). A prosecutor

must undertake “obvious” and “appropriate” inquiries before making an argument

she should have known was false. Novoa, 70 N.Y.2d at 498. Where a prosecutor

fails to correct material and inaccurate testimony of a witness, a conviction must fall

unless there is no reasonable possibility that it contributed to the conviction. Colon,

13 N.Y.3d at 349.

The Appellate Division’s conclusion that Nicolazzi failed to correct Avitto’s

false or misleading testimony regarding his contacts with the police and herself and

his performance in drug treatment was supported by the record.

As detailed, supra, at 41-42, the Appellate Division found that Avitto first

contacted detectives immediately after he left his drug program and exposed himself

to a prison sentence (A. vii-viii). Avitto, however, falsely denied that he called the

47
police immediately after he left his program and said only that he contacted police

“sometime in June 2005” several “months” after he entered drug treatment (A. 1731,

1756).

Avitto’s testimony about his June 13 court appearance also was profoundly

misleading. Nicolazzi, an actual witness to that day’s important events, deliberately

elicited misleading testimony from Avitto about them (Nicolazzi: A. 704-11, 724).

After the jury learned that Avitto left his program on June 9 and appeared in court

on June 13, Nicolazzi’s re-direct concealed her June 13 meeting with Avitto and her

identity as “the DA” at his court appearance immediately thereafter, and led the jury

to believe that it was solely Avitto’s “responsible” behavior that influenced the court

to release him. See, supra, at 13-15. Nicolazzi’s emphasis that Giuca’s trial judge

didn’t release Avitto further demonstrated her intent to convince the jury that

Avitto’s release was entirely unrelated to Giuca (A. 1758).

The Appellate Division correctly found that the People failed to correct

Avitto’s false testimony that he was “doing real well” with his addiction and “doing

good” in his drug program since he had been released from jail and that Nicolazzi

improperly exploited that false testimony in her summation (Avitto: A. 1730, 1743;

A. 1966-68). It concluded that, in fact, Avitto “had not done well in his drug

program and that he had violated the conditions of his plea agreement on numerous

48
occasions,” but that he was released after his “cooperation and upcoming testimony

was mentioned” (A. vii-viii).

Indeed, the hearing evidence established that from June 9, 2005 until he

testified, Nicolazzi, others in her office, and EAC treated Avitto with “special

attention,” the People and EAC frequently communicated while they monitored

Avitto’s treatment, and Nicolazzi knew that Avitto relapsed twice, frequently

violated the rules of his program, absconded from an inpatient facility, absconded

from a detox center, and was kicked out of a rehab facility just three days before he

testified he was “doing good” in his program. See, supra, at 20-25; (A. vii, 2048-

54).

Nicolazzi’s failure to correct Avitto’s false testimony that he was succeeding

in his drug program, and her false argument that his “responsible” behavior

demonstrated his lack of motive to testify against Giuca, was reprehensible. See,

e.g., Colon, 13 N.Y.3d at 350; Steadman, 82 N.Y.2d at 7; Novoa, 70 N.Y.2d at 498;

Cwikla, 46 N.Y.2d at 442; Savvides, 1 N.Y.2d at 556-57.

The People deny that Avitto’s testimony minimizing the timing of his

reaching out to police on June 9 was misleading, arguing, based on Byrnes’ and

McCafferty’s hearing testimony, Avitto had met them and made consistent

statements before that date. People’s Brief at 58-60. However, as detailed above,

49
the Appellate Division expressly found, and Nicolazzi admitted, that Avitto’s first

police interview occurred in her presence on June 13. See, supra, at 41-42.

The People’s claim that Nicolazzi’s identity as “the DA” who appeared in

court on June 13 was immaterial because there was no agreement between Avitto

and the prosecution is wrong. People’s Brief at 60. As the Appellate Division found,

there was at least a “strong inference” of a tacit agreement, but even if this was not

the case, Nicolazzi wasn’t entitled to conceal her personal involvement in assisting

Avitto by appearing on his case and notifying the court about his cooperation and

requesting that he be released without bail. She hid her own involvement precisely

for the purpose of misleading the jury into thinking there was no conceivable

connection between an unnamed ADA’s seemingly routine appearance at Avitto’s

court appearance and his testimony. See, e.g., Jenkins v. Artuz, 294 F.3d 284, 294

(2d Cir. 2002) (a technically accurate question phrased to re-enforce a false

impression is impermissibly misleading).

In fact, if the jury knew that Nicolazzi was “the DA” who appeared in court

with Avitto immediately after he offered his cooperation against Giuca, it likely

would have concluded what the People documented on June 16 but suppressed from

Giuca: Avitto was released without bail after he “turned himself into the DA’s

Office” with information against Giuca (A. 2054).

50
 In sum, because Avitto’s credibility was a “pivotal consideration for the jury,”

the Appellate Division properly held that Nicolazzi’s failure to correct Avitto’s

materially inaccurate testimony, and her emphasis of it in summation, created a

reasonable possibility that the outcome of the trial was affected (A. viii-ix).

POINT III

THE CONVICTION SHOULD BE VACATED FOR

THE ADDITIONAL REASONS THAT THE
PEOPLE SHOULD HAVE OBTAINED AND
DISCLOSED AVITTO’S EAC RECORDS UNDER
BRADY AND SUCH RECORDS CONSTITUTE
NEWLY DISCOVERED EVIDENCE THAT WAS
MATERIAL TO THE OUTCOME

Shortly before the hearing began, the People disclosed Avitto’s EAC records,

which were filled with favorable impeachment material, including evidence of

Avitto’s willingness to lie to help himself. They also demonstrated Avitto’s history

of apparent severe mental illness (A. vii-viii; 11-12, 18-19). The defense specifically

requested drug treatment and psychiatric records before trial (A. 897). The hearing

court held that the People weren’t obligated to obtain and disclose Avitto’s EAC

records because Nicolazzi’s opinion that Avitto seemed lucid gave her no reason to

seek records, which in the court’s view, mostly contained evidence of Avitto’s

willingness to lie about his mental illness to achieve a benefit (A. 18-19). The

Appellate Division didn’t reach these issues.

51
A. The EAC Records Should Have Been Disclosed and Were Material to the
Outcome of the Trial

The Appellate Division found that Avitto’s EAC records contained substantial

impeachment evidence, including that (1) Avitto contacted police immediately after

he left his drug program on June 9, 2005, (2) Avitto knew a warrant was issued for

his arrest, (3) Nicolazzi discussed with Avitto’s counselor and the court the

possibility of having Avitto released without bail, (4) Nicolazzi appeared in court

with Avitto on June 13, and notified the court about his cooperation, (5) Avitto

performed poorly in his drug program, and (6) after June 9, Avitto was released after

his cooperation and upcoming testimony was mentioned (A. vii). In addition, the

records also contained vital evidence of Avitto’s severe mental illness and his

willingness to exploit it to help himself. See, supra, at 26-28.

The People concede that the defense made a specific demand for records of

Avitto’s psychiatric and drug treatment. People’s Brief at 43. Therefore, if they

should have disclosed the EAC records, the Vilardi standard of materiality applies.

The hearing court’s Brady ruling was incorrect because, irrespective of

Nicolazzi’s perception of Avitto’s mental health, the defense specifically requested

Avitto’s drug treatment records, the People knew that Avitto was performing poorly

in his EAC drug program but had falsely testified to the contrary, the People were in

constant contact with Avitto’s EAC counselors and were exchanging information

52
with them, and the late decision to call Avitto to testify and failure to disclose his

poor progression in treatment deprived the defense of any opportunity to obtain these

records for itself.

Although the People ordinarily wouldn’t be responsible for the contents of a

social-service agency’s records, here, that general rule doesn’t apply under the

unusual facts of this case. As the Appellate Division found, (1) Avitto told Nicolazzi

he absconded from his drug program, (2) Nicolazzi and Avitto’s EAC counselor

discussed finding Avitto a suitable program, and (3) immediately after Avitto began

cooperating against Giuca, executive ADA Swern requested that EAC mark him for

“special attention” and update the People about his progress (A. vii).

Moreover, Avitto was a cooperating witness who executed a waiver in order

to speak with Nicolazzi while he was in a rehab facility a few days before he testified

(A. 2548). Certainly Nicolazzi wasn’t entitled to make representations about Avitto,

which turned out to be false, before reviewing his EAC records to make sure the

representations were true.

The record shows that Nicolazzi and Avitto discussed his mental health

problems and drug addiction “at length” (Nicolazzi: A. 509-10). She spoke with

Avitto’s burglary prosecutor, and reviewed Avitto’s file (Nicolazzi: A. 571-75; A.

2052). On at least three occasions, Nicolazzi was contacted by Swern regarding

Avitto’s status in drug treatment (Nicolazzi: A. 566-67; A. 2048-49).

53
 ADA Kelly, who also was instructed by executive ADA Swern to “keep track”

of Avitto’s progress, was told about EAC’s concern with Avitto’s heavy drug use

just three days after he “turned himself into the DA’s Office” with information

against Giuca and was released (A. 2054). Kelly was told that Swern and EAC

director D’Isselt were aware of the problem and had discussed it (Kelly: A. 415-21;

A. 2054). After Avitto’s court date was advanced to June 17 due to his drug use,

D’Isselt personally warned Avitto that EAC would be “in direct contact” with

Nicolazzi regarding his noncompliance (A. 2528). Indeed, following Avitto’s

September 6 and 19 violations, Avitto’s EAC counselor updated Nicolazzi about

Avitto’s violations, and Nicolazzi visited Avitto at a rehab facility sometime

between September 7 and 19 (Nicolazzi: A. 608; A. 2523, 2547-49).

Multiple prosecutors and EAC case workers, including executives at both

agencies, treated Avitto’s mundane case with “special attention” and frequently

shared information about him specifically because of his cooperation against Giuca.

As Kelly testified, he and Swern didn’t discuss “run of the mill cases;” they

consulted about Avitto because he was cooperating in Nicolazzi’s high-profile

murder case (A. 400-01, 407). “‘The propriety of imputing knowledge to the

prosecution…does not turn on the status of the person with the actual knowledge’”

but what the person “did” to aid the prosecution.” Garrett, 23 N.Y.3d at 887 citing

United States v. Stewart, 433 F.3d 273, 298 (2d Cir. 2006).

54
 In these circumstances, Nicolazzi couldn’t close her eyes to the EAC records;

she was required to obtain them, especially in view of her late disclosure that Avitto

would be testifying and her sworn response to the defense’s specific request that she

would disclose all Brady material (A. 920). At a minimum, she should have alerted

the defense about the existence of the records, so Giuca could have subpoenaed

them. But rather than obtain evidence that “should have been of particular interest

in view of its pertinence” to Avitto’s credibility, Novoa, 70 N.Y.2d at 498, Nicolazzi

testified that she “never kept track of Avitto’s court dates” (Nicolazzi: A. 610).

Making matters worse, after she ignored the specific request for Avitto’s EAC

records, Nicolazzi made demonstrably false arguments about his credibility, the

inaccuracy of which would have been obvious to the jury had she disclosed Avitto’s

EAC records to the defense (A. 1966-69).

Given the People’s knowledge that Avitto’s EAC records likely contained

important evidence that he was mentally ill, manipulative of the system, and

frequently violated the conditions of his release, and that the defense had specifically

requested them, Nicolazzi should have obtained and disclosed the records. Affirming

the Supreme Court’s holding that the People “had no reason to get those records, (A.

19), “could only serve the undesirable objective of discouraging the obvious,

appropriate inquiry.” Novoa, 70 N.Y.2d at 498.

55
B. The EAC Records are Newly Discovered Evidence of Such Great
Significance that They Entitle Giuca to a New Trial

A court may vacate a conviction based upon newly discovered evidence where

such evidence couldn’t have been produced by the defense even with due diligence

and the evidence would probably have changed the result at trial had it been received.

C.P.L. § 440.10(1)(g). The Court has stated the evidence must not merely be

impeaching in nature. People v. Salemi, 309 N.Y. 208 (1955).13

The Supreme Court denied Giuca’s claim that Avitto’s EAC records were

newly discovered evidence, finding they were “merely” impeaching because they

“mostly contain [evidence of] Avitto’s fabrication of his mental problems in order

to achieve something he wanted” (A. 18, 21). However, the records were not “mere

impeachment” and must be considered in conjunction with other newly discovered

evidence: Nicolazzi’s personal involvement in helping Avitto avoid incarceration

while he was cooperating and the other circumstances affecting Avitto’s motive to

lie addressed in Point I.

Evidence of a witness’ inability to perceive and recall important events is not

merely impeaching and may constitute newly discovered evidence. People v.

13
The Second Department recently held that impeachment material may constitute newly
discovered evidence for purposes of a motion under C.P.L. § 440.10(1)(g). People v. Hargrove,
162 A.D.3d 25, 55-60 (2d Dept. 2018). The court reached this conclusion based on the text of the
statute and the Court’s view that newly discovered evidence is a discretionary determination. The
issue need not be reached here because the EAC records weren’t “merely impeaching.”
56
Rensing, 14 N.Y.2d 210, 213-14 (1964). Avitto’s EAC records documented his

claimed history of serious mental illness, including experiencing auditory

hallucinations shortly before he met Giuca and shortly before he testified that he

“overheard” Giuca make admissions to others, which purportedly led Giuca to make

a direct admission to Avitto (Avitto: A. 1718-19; A. 2262-66, 2283-85). Nicolazzi

assured the jury that “it knew Avitto wasn’t making [his claim that he overheard

Giuca] up” (A. 1954-55).

Moreover, the records show that in the months before Avitto testified against

Giuca, he (1) insisted that he suffered from serious mental illness to obtain better

housing in jail, (2) claimed that he fabricated his history of mental illness in order to

get out of jail and into an inpatient program, and (3) once out of jail, he again alleged

a history of severe mental illness. Regardless of whether Avitto truly suffered from

mental illness and denied it or made it up to get out of jail, the information in his

records wasn’t “mere impeachment;” it related to his willingness to lie to benefit

himself, which tended to support Giuca’s innocence by demonstrating that Avitto’s

claim that Giuca confessed to him was false.

Finally, the records couldn’t have been obtained with due diligence because

the People announced Avitto as a witness the day before he testified and disclosed

only a list of his convictions. No defense counsel reasonably could have acquired

them in those circumstances.

57
 POINT IV

THE PEOPLE VIOLATED GIUCA’S RIGHTS

UNDER ROSARIO BY FAILING TO DISCLOSE
AVITTO’S MATERIAL, ON-THE-RECORD
STATEMENTS DURING HIS SEPTEMBER 19,
2005, COURT APPEARANCE

The Supreme Court denied Giuca’s Rosario claim regarding the nondisclosure

of a transcript of Avitto’s September 19, 2005, court appearance, holding that the

People didn’t possess it and both sides had access to it (A.20). This was wrong. The

defense didn’t know about the appearance, but the People did and had an obligation

to produce a transcript. Because Avitto’s statements during the court appearance are

material, the People’s Rosario violation is an additional basis to affirm the Appellate

Division’s reversal of the hearing court.

Three days before testifying he was “doing good” in his program, Avitto was

ordered to appear in court because he had been kicked out of a rehab facility. This

appearance occurred during Giuca’s trial, which began on September 14. A

prosecutor and Avitto’s EAC counselor, Sean Ryan, were present (A. 2084-87).

During the appearance, Ryan informed the court that he left Nicolazzi a message

about Avitto’s violation (A. 2548-49). After the appearance, Ryan told Nicolazzi

“what happened” at the appearance (A. 2549).

At the bench, after Ryan told the court he advised Nicolazzi of the violation,

the court stated it wouldn’t remand Avitto because of his upcoming testimony (A.

58
2549). On the record, the court admonished Avitto for his latest of several violations,

literally telling him his performance in his drug treatment was “not good”:

The Court: Mr. Avitto, I don’t quite understand what’s

going on here. Now listen to me, just listen
to what I am saying to you. The letter, you
can see how long this is. It’s all underlined.
You know what that means? That means it’s
not good.

Avitto admitted violating the rules by smuggling cigarettes into the non-

smoking facility, but used his cooperation against Giuca as an excuse:

The Defendant: The only thing is because I have a hard

time with the cigarettes. I’m a big
smoker. I’m supposed to be testifying
this week in a murder case, so I was
smoking a lot. So I apologize for that.

The Court: All right. Well, apparently we’re going to

give you another opportunity…There aren’t
too many more times that I can keep giving
you another opportunity.

(A. 2084-87).

The transcript contained statements by Avitto bearing upon his performance

in drug treatment and his denial of any relationship between his difficulties in

treatment, his cooperation with the People, and his testimony against Giuca. The

transcript thus related to the subject matter of his testimony. See C.P.L. § 240.45.

The colloquy between Avitto and the court demonstrated his willingness to exploit

his cooperation against Giuca to his advantage and exposed the falsity of his

59
testimony that he was “doing good” in his drug treatment since his release from jail.

It was highly material and its nondisclosure prejudiced Giuca.

The Supreme Court erred in concluding that the defense had equal access to

the transcript. Defense counsel didn’t know about it. He was entrenched in a murder

trial and, even if he somehow had known about the appearance, he had no notice that

Avitto made material statements during it. The defense was entitled to rely on

Nicolazzi’s representation that there was no Avitto-related Rosario material (A. 919,

1671, 1761); cf. Banks v. Dretke, 540 U.S. 668, 695-98 (2004) (a defendant isn’t

required to “scavenge for hints of undisclosed Brady material when the prosecution

represents that all such material has been disclosed”). Meanwhile, the People, who

had a prosecutor at Avitto’s appearance, knew what occurred and could have

informed the defense or ordered a transcript to disclose to the defense.

In Matter of Bertha K., 58 A.D.2d 811, 811 (2d Dept. 1977), the Second

Department reversed a juvenile adjudication where a continuance was denied for the

prosecution to obtain a transcript containing Rosario material that that the defense

had just learned about. Here, Giuca didn’t learn about Avitto’s material statement at

all, but the People shirked their obligation to produce it.

This case is distinguished from People v. Fishman, 72 N.Y.2d 884, 886

(1988), where the Court upheld a trial court’s ruling that untranscribed minutes

weren’t Rosario material because the defense could have ordered them. This Court

60
hasn.t ruled on the circumstances presented here, where the People knew that a

witness on a murder case made a recorded statement about the subject matter of his

testimony, the defense didn't know that such a proceeding had occurred, and the

People had represented they would disclose all Rosario material. 14

CONCLUSION

For all ofthe above reasons, the order ofthe Appellate Division granting John

Giuca's C.P.L. § 440.10 motion should be affirmed so that Giuca may now obtain

the fair trial he was denied in the first instance.

Respectfully submitted,

A.BEDEROW
Carnegie Hall Tower
152 West 57th Street
8th Floor
New York, New York 10019
212.803.1293
mark@bederowlaw.com

Attorneyfor John Giuca

Dated: New York, New York

December 26,2018

14 Even if the Rosario rule didn't apply to the untranscribed transcript, the People were required

under Vilardi to disclose the substance of what happened at the appearance.

61
COURT OF APPEALS
STATE OF NEW YORK
x
--------------------
THE PEOPLE OF THE STATE OF NEW YORK,

Appellant,

APL-2018-00123
-against-

JOHNGIUCA, Ind. No. 8166/2004

(Kings County)
Defendant-Respondent.
- - - - - - - - - - - - - - - - - - - -x

CERTIFICATION OF WORD COUNT

PURSUANT TO 22 NYCRR § 500.13(c)(1)

This briefwas prepared by using a word-processing system. According to the

word of the word-processing system used to prepare the brief, the total word count

for all printed text in the body ofthe brief, inclusive ofpoint headings and footnotes,

and exclusive of the table of contents, the table of authorities, and the certification

of word count, is 13,997.

Dated: New York, New York

December 26, 2018

£iLl --
~rk A. Be(ferow