SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: PART 19 THE PEOPLE OF THE STATE OF NEW YORK, Ind. No. 8166/2004 -against- JOHN GIUCA, Defendant. DEFENDANT GIUCA’S POST C.P.L. § 440.10 HEARING MEMORANDUM OF LAW MARK A. BEDEROW ANDREW M. STENGEL (of counsel) Law Office of Mark A. Bederow, P.C. 260 Madison Avenue New York, New York 10016 212.803.1293 (Phone) 917.591.8827 (Fax) mark@bederowlaw.com Attorneys for Defendant John GiucaTABLE OF CONTENTS TABLE OF AUTHORITIES PRELIMINARY STATEMENT STATEMENT OF FACTS A. Giuca’s Specific Brady and Giglio Requests B. Relevant Trial Proceedings 1. Other “Direct Evidence” Against Giuca was Inconsistent with Avitto 2. The Defense's Limited Opportunity to Investigate Avitto 3. Avitto Testified to Giuca’s Active Participation in Fisher’s Murder 4, Avitto Denied Seeking, Expecting or Receiving any Benefits w . Avitto Downplayed His Mental Health Issues 6. The Prosecution Endorsed Avitto’s Version as the Truth 7. The Prosecution Misled the Jury about Avitto’s Credibility C. The 440.10 Motion and the People’s Response D. Previously Undisclosed Documents Introduced at the 440.10 Hearing 1. Avitto’s Psychiatric RecordsPage 2. Drug Program Progress Notes and Email 21 E. The 440.10 Hearing Testimony 27 1. John Avitto 27 2. Retired Detective Thomas Byrnes 30 3. ADA David Kelly 31 4. ADA Anna-Sigga Nicolazzi 32 5. Trial Counsel Samuel Gregory 38 6. Detective James McCafferty 40 ARGUMENT POINTI THE DOCUMENTARY AND TESTIMONIAL EVIDENCE INTRODUCED AT THE HEARING ESTABLISHES THAT THE, PROSECUTION COMMITTED NUMEROUS AND SERIOUS GIGLIO VIOLATIONS THAT SEPARATELY AND COLLECTIVELY EASILY SATISFY THE “REASONABLE POSSIBILITY” MATERIALITY STANDARD = 41. A. The Applicable Materiality Standard .. 4 B. The People’s Giglio Violations in This Case .. 4B 1. Ms. Nicolazzi's Intervention into Avitto's Case and Tacit Benefits 43 2. Avitto's EAC Records .... 58C. The Giglio Violations Easily Satisfy the Reasonable Possibility Standard 69 POINT II THE DOCUMENTARY AND TESTIMONIAL EVIDENCE INTRODUCED AT THE HEARING ESTABLISHES THAT THE, PROSECUTION KNEW OR SHOULD HAVE KNOWN THAT AVITTO TESTIFIED INACCURATELY AND THE PROSECUTION VOUCHED FOR ITS ACCURACY RATHER THAN CORRECT IT 80 POINT III THE EVIDENCE AT THE HEARING ESTABLISHES THAT THE. PEOPLE VIOLATED THE ROSARIO RULE IN CONNECTION, WITH AVITTO’S SEPTEMBER 19, 2005 COURT APPEARANCE 99 POINT IV AVITTO’S EAC RECORDS CONSTITUTE NEWLY DISCOVERED EVIDENCE WHICH IF KNOWN TO THE TRIAL DEFENSE LIKELY WOULD HAVE RESULTED IN A VERDICT MORE FAVORABLE TO THE DEFENSE . 102 POINT V DOCUMENTARY EVIDENCE INTRODUCED AT THE HEARING ESTABLISHES THAT GIUCA WAS PROVIDED INACCURATE EVIDENCE THAT PREJUDICED THE DEFENSE’S ABILITY TO CROSS EXAMINE AVITTO 106, CONCLUSION 109TABLE OF AUTHORITIES Case Banks v. Dretke, 540 U.S. 668(2004) ... Brady v. Maryland, 373 U.S. 83 (1963) Davis v. Alaska, 415 U.S. 308 (1974) ... Dozier v. State, 134 A.D.2d 759 (3 Dept. 1987) Giglio v. United States, 405 U.S. 150 (1972)... Jenkins v. Artuz, 294 F.3d 284 (2™ Cir. 2002) Kyles v. Whitley, 514 U.S. 419 (1995) ... People v. Andre W., 44 N.Y.2d 179 (1978) People v. Baxley, 84 N.Y.2d 208 (1994) People v. Casanova, 119 A.D.3d 976 (3 Dept. 2014) People v. Collins, 250 A.D.2d 379 (1* Dept. 1998) People v. Colon, 13 N.Y .3d 343 (2009) People v. Conlan, 146 A.D.2d 319 (1* Dept. 1989) People v. Cotton, 242 A.D.2d 638 (2 Dept. 1997) People v. Crespo, 168 Misc.2d 182 (Bronx Cty. Sup. Ct. 1995) People v. Cwikla, 46 N.Y.2d 434 (1979) People v. Dozier, 163 A.D.2d 220 (1* Dept. 1990) People v. Forbes, 111 A.D.3d 1154 (3" Dept. 2013) Page 42, 100 4 43, 67, 97 92-93, 98 41, 42, 61, 68, 102 49 49 passim 98 97 50 54-57Case People v. Ford, 41 A.D.2d 550 (2™ Dept. 1973) People v. Fuentes, 12 N.Y.3d 259 (2009) People v. Grissom, 128 Misc.2d 246 (N.Y. Cty. Crim. Ct. 1985) .. People v. Hardy, 4 N.Y.3d 192 (2005) People v. Harris, 93 A.D.3d 58 (2"! Dept. 2012) People v. Jackson, 29 A.D.3d 328 (1% Dept. 2006) .... People v. Jones, 47 N.Y.2d 428 (1979) People v. Machado, 90 N.Y.2d 187 (1997) People v. Marzed, 161 Misc.2d 309 (N.Y. Cty. Crim. Ct. 1993)... People v. Maynard, 80 Misc.2d 279 (N.Y. Cty. Sup. Ct. 1974) .... People v. Negron, 26 N.Y .3d 262 (November 23, 2015) People v. Novoa, 70 N.Y.2d 490 (1987) People v. Paperno, 54 N.Y.2d 294 (1981) People v. Pressley, 91 N.Y.2d 825 (1997) People v. Qualls, 70 N.Y.2d 863 (1987) People v. Ramos, 132 Mise.2d 609 (Kings Cty. Sup. Ct. 1985) People v. Richardson, 137 A.D.2d 105 (3" Dept. 1988) People v. Robinson, 133 A.D.2d 850 (2™ Dept. 1987) Wi Page 54 49 99 on 80 104 80 104 104-105 42, 102 50, 80 92n 81 42, 100 104 80 49Case Page People v. Saddy, 84 A.D.2d 175 (2™ Dept. 1981) ...-.eesse 50 People v. Seeber, 94 A.D.3d 1335 (3rd Dept. 2012)... (106 People v. Springer, 122 A.D.2d 87 (2 Dept. 1986)... 50 People v. Steadman, 82 N.Y.2d | (1993) 42, 60, 67, 68, 98 People v. Tankleff, 49 A.D.3d 160 (2 Dept. 2007)....-+--+++ 103 People v. Taylor, 26 N.Y.3d 217 (October 27,2015)... 51-54, 97 People v. Vielman, 31 A.D.3d 674 (2 Dept. 2006).......+++++ 97, 98 People v. Vilardi, 76 N.Y.2d 67 (1990) 42, 69, 76, 102 People v. Walker, 116 A.D.2d 948 (3 Dept. 1986) .......-+++ 104 People v. Wallert, 98 A.D.2d 47 (1* Dept. 1983)... 98 People v. Witkowski, 19 N.Y.2d 839 (167) People v. Wright, 86 N.Y.2d 591 (1995) Smith v. Cain, 132 S.Ct. 627 (2012) Strickler v. Greene, 527 U.S. 263 (1999) United States v. Agurs, 427 US. 97 (1976) 4,61 United States v. Bagley, 473 U.S. 667 (1985) seessessene 4 United States v. Wallach, 935 F.2d 445 (2™ Cir. 1991)... 81,98 Wood v. Ercole, 644 F.3d 83 (2" Cir. 2011) .... 80Statutes New York Criminal Procedure Law § 240.45 § 240.75 § 440.10(1)(b) § 440.10(1)(2) 98 an 106 102SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: PART 19 THE PEOPLE OF THE STATE OF NEW YORK, Ind. No. 8166/2004 -against- JOHN GIUCA, Defendant. DEFENDANT GIUCA’S POST C.P.L. § 440.10 HEARING MEMORANDUM OF LAW PRELIMINARY STATEMENT Defendant, John Giuca respectfully submits this post-hearing Memorandum of Law in support of his C.P.L. § 440.10 motion to vacate his conviction.! ! The defense relies on al prior submissions, including Giuca’s original motion to vacate, the exhibits annexed thereto, hhis Memorandum of Law and Reply Memorandum of Law in support of the original motion, letters submitted during the litigation of this motion, documents admitted into evidence at the hearing and arguments made during court proceedings. This Memorandum is designed to serve as a comprehensive document setting forth Giuca’s claims. 1The trial and conviction of John Giuca for the murder of Mark Fisher, sensationalized in the tabloids as the “Grid Kid” murder case, was an important victory for the Brooklyn District Attorney. The trial followed a long and tense investigation, which included the replacement of the entire team of prosecutors and detectives, severe criticism from the Fisher family, media, and even the police, who publicly slammed the lack of cooperation by potential witnesses. The pressure on the prosecution to win the high-profile trial was enormous. Lead prosecutor Anna-Sigga Nicolazzi initially attempted to prove that Giuca gave Antonio Russo a gun before Russo shot Fisher by himself at a different location. The only witnesses who supported this theory were Albert Cleary and Lauren Calciano, both of whom were pressured into testifying against Giuca. However, they contradicted each other about critical facts and had severe credibility problems. In order to salvage a case sinking under the weight of Cleary and Calciano’s baggage, at the end of their case-in-chief, the prosecution abandoned its theory in favor of one that alleged Giuca was an active participant in the crime. The only witness who supported the adopted theory was John Avitto, a jailhouse informant, who volunteered to testify shortly after he triggered a mandatory prison sentence by violating the terms of a favorable plea agreement on an unrelated burglary case. In her summation, Ms. Nicolazzi argued that only Avitto’s version of Giuca’s guilt made sense. She cited his desire “for once to do something right” as his sole 2motive for testifying against Giuca. Her reliance on Avitto’s “truthful” testimony, coupled with her vigorous defense of the jailhouse informant’s altruistic motive, made his credibility the critical issue for the jury as it considered Giuca’s purported role in Fisher’s death. The evidence at the 440.10 hearing established that contrary to Ms. Nicolazzi’s portrayal of Avitto as an honest man succeeding in a drug program motivated by a pure heart, he was, in fact, a mentally ill, pathological liar who frequently distorted the truth for his own benefit. Even the experienced case detectives who testified at the hearing admitted they didn’t believe the substance of Avitto’s testimony. The defense has proven that in their effort to keep the jury ignorant of Avitto’s severe credibility problems, the prosecution committed Giglio and Rosario violations and failed to correct his false and misleading testimony. Giuca was also prejudiced by inaccurate documentary evidence. These due process violations individually and collectively deprived Giuca of his right to a fair trial? John Giuca has languished in jail or prison for more than 11 years. As evidenced by Ms. Nicolazzi’s unapologetic testimony regarding her “non-existent” due process obligations, there is cause for concer that the People will interpret the 2 The defense has added a newly discovered evidence claim with respect to Avitto’s EAC records which the Court should consider in light of the evidence atthe hearing. 3Court’s failure to correct this injustice as tacit approval of their unconstitutional conduct. This could lead to unjust convictions in future cases. The Court should vacate Giuca’s conviction in accordance with the judiciary’s responsibility to ensure that trials are conducted in a manner that is consistent with a defendant's right to due process rather than as one-sided sporting events at which overzealous prosecutors engage in improper tactics designed to increase their chances of “winning.” STATEMENT OF FACTS A. Giuca’s Specific Brady and Giglio Requests ‘The defense pre-trial motions’ demanded disclosure of the following from the People: All evidence within the custody or knowledge of the District Attorney’s Office which is favorable to the defense, in accordance with Brady v, Maryland, 373 U.S. 83 (1963), and United States v. Agurs, 427 U.S. 97 (1976), §8(a); Alll evidence within the custody or knowledge of the District Attomey’s Office, which might tend to adversely affect the credibility of any eyewitnesses the prosecution intends to call at trial, in accordance with Giglio v. United States, 405. U.S. 150 (1972), $8(b); [W]hether any prosecution witness has ever received psychiatric treatment or been confined for the purpose of psychiatric treatment, $16(a); * All egal filings, transcripts and documents related to Giuca’s claims referenced herein are contained in the two binders that were admitted into evidence at the beginning of the hearing. 4[W]hether any prosecution witness has ever received treatment for drug abuse or been confined in a drug treatment facility, either under a civil or criminal commitment, §16(b); If the answer to either [16(a) or 16(b)] is yes, provide defense counsel with the substance of any treatment(s) received by the witness, including dates of treatment and confinement. $16(c). Shortly after Avitto testified and before summations, counsel made an additional detailed demand for Avitto-related Giglio material in support of his request that the trial court instruct the jury that Avitto received a benefit in exchange for his testimony: MR. GREGORY: Judge, I would request a charge on Avitto, with respect to consideration, and with respect to his status vis-a-vis the case he has...it seems to me that although there is a statement he hasn’t received anything, it’s really not up for me to decide or Ms. Nicolazzi to decide. It’s up to the jurors to decide. I would ask that you give a charge reflecting his status as somebody who is a person who has gotten consideration from the prosecution... THE COURT: Ms. Nicolazzi? MS. NICOLAZZI: I would object to every single portion of what Mr. Gregory has just alleged. First of all, there is absolutely no evidence in front of this jury. Just as I put on the record before, he’s never been given any consideration...There is absolutely no evidence before this jury at all that there was any consideration at all...I mean he can talk about it, based on anything the witness said during the course of his testimony...[Mr. Gregory]knows there hasn’t been [consideration] and the evidence was that there hasn’t been... * * * MR GREGORY: I can’t prove what is going on but something is happening here to protect him, that it’s up to [the jury] to decide whether or not he got any consideration. I think he did get consideration and not that Ms. Nicolazzi here is lying to this court but that if he weren’t involved in what he’s involved in [he would be in jail]. Trial Transcript (“Tr.”) 928-31. Justice Marrus declined to grant the charge. B. Relevant Trial Proceedings dL. Other “Direct Evidence” Against Giuca was Inconsistent with Avitto In her opening statement, Ms. Nicolazzi alleged that Giuca handed a .22 caliber pistol to Antonio Russo, who left Giuca’s home and murdered Mark Fisher. After he shot Fisher, Russo went back to Giuca’s home and returned the gun. Tr. 35- 36. She featured Albert Cleary as the critical witness to whom Giuca told the “full story” and gave the “detailed account to what had really happened.” Tr. 33, 35. Giuca “downplayed his role” in Fisher’s murder to Lauren Calciano. Tr. 32. Ms. Nicolazzi did not mention Avitto or allege that Giuca was physically present at the crime scene. Cleary testified that Giuca became upset after Fisher sat on a table, so Giuca “basically” armed Russo and ordered him to harm Fisher. Tr. 320-22. Thiscontradicted his grand jury testimony, where he alleged that Tommy Saleh, not Giuca, told Fisher to get off the table. Cleary admitted that in the grand jury he never mentioned that Giuca complained about Fisher sitting on a table. Cleary “recalled” it was Giuca who ordered Fisher off the table after he met with prosecutors fewer than 24 hours before he testified. Tr. 277-78. Cleary testified that he lied to police for more than a year at Giuca’s behest and cooperated only after he was “squeezed” with a threatened violation of probation in connection with a vicious assault he pleaded guilty to a few months before Fisher’s murder. Tr. 338. Yet in June 2004 Cleary and his attorney—on their own initiative—submitted the results of a polygraph examination to prosecutors in order to convince them that he should not be a witness. The polygraph results showed that, Cleary knew nothing about the circumstances of Fisher’s murder. Tr. 329, 338-39. Nevertheless, once he was sufficiently pressured, Cleary claimed that Giuca confessed his role in Fisher’s murder to him and Calciano. Cleary claimed that he witnessed Calciano remove a gun bag from Giuca’s home shortly after the murder. Tr. 331. Calciano, who also said she and Cleary were together when Giuca detailed Fisher’s murder, refuted Cleary’s account. Tr. 580, 583, 607-09. She said Giuca admitted that he gave Russo a gun after Russo stated he wanted to rob “Albert’s friend” (Fisher) Tr. 581. Like Cleary, Calciano denied any knowledge about Giuca’s 7involvement in the crime for more than a year and cooperated only after being heavily pressured by detectives and prosecutors. Tr. 587-88, 594-95, 597-603. Calciano denied removing evidence from Giuca’s home and said Cleary was lying. Tr. 589, 604, 627-28. 2. The Defense’s Limited Opportunity to Investigate Avitto The defense first learned that Avitto was a potential witness against Giuca when it received a witness list before jury selection. Hearing Transcript (“Hg.”) 624, 722. Avitto had been scheduled to testify on September 21, 2005, but Justice Marrus adjourned his testimony one day to afford the defense the opportunity to secure any available records it needed for Avitto’s cross-examination. Tr. 745. The People did not provide the defense with any Avitto-related Rosario material because “none” existed. Tr. 747, 815; Hg. 625, 719-20. They did not disclose Avitto’s EAC records or any other information about Avitto. The defense had no meaningful way to acquire impeachment material itself because at the time Avitto testified, it knew nothing about him other than what was contained in the public court file of his October 2004 burglary case. Tr. 745-47; Hg, 627, 720, 724- 25, 747. 3. Avitto Testified to Giuca’s Active Participation in Fisher’s Murder Avitto testified that in February 2005, during Rikers Island visiting hours he overheard Giuca tell his father (in the presence of Giuca’s aunt and step-sister) “I 8just had it” in response to his father’s question why he had a gun with him. Tr. 773. Avitto later claimed that Giuca told him he (Giuca) and two unnamed others accompanied Fisher to an ATM. Afier Fisher withdrew $20, Giuca became “mad” and “pulled out a gun” and pistol-whipped Fisher. At some point during the incident, Fisher “handed them” the $20. Tr. 775. After Fisher went to the ground, Giuca and the others “punched him and kicked him” before one of the others “pulled the gun off him and shot the kid.” Tr. 774-75. 4. Avitto Denied Seeking, Expecting or Receiving any Benefits At the time he testified, Avitto was a drug-abusing career criminal. Tr. 779, 787-89. He admitted that he once lied to law enforcement in order to avoid being incarcerated after he had absconded from parole. Tr. 781-82, 791-92. On February 8, 2005, Avitto pleaded guilty to burglary and received a conditional sentence of a lengthy drug program, the completion of which would result in dismissal of the indictment. If he violated the plea agreement, he was mandated to serve a prison sentence of 3 4 to 7 years. Tr. 787. He knew that if he left his program it would be deemed a violation of his plea agreement and that he would receive the prison sentence. Tr. 787. Although he gathered his purported evidence against Giuca in February 2005 and was released from jail on April 28, 2005, he volunteered to cooperate against Giuca “sometime” in June 2005. Tr. 785, 798.Avitto claimed that he was doing “good;” “things were going well” in his drug treatment program. Tr. 784,797. On cross, he admitted that he left his program on June 9, 2005 and then appeared in court on June 13, 2005. Tr. 799-800. He denied using drugs between June 9 and June 12. Tr. 800-01. On re-direct, Ms. Nicolazzi elicited the following from Avitto regarding his June 9 violation and June 13 return to court: Q: The first time you left the program, did they have to come find you, or did you contact your counselor 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 this judge [indicating to Justice Marrus]? A: Not this judge [indicating to Justice Marrus]. The judge of my case and I guess Sean Ryan had a talk and he got me another shot. ‘Tr. 812 (emphasis added). Avitto denied that he was given, promised or asked for anything in exchange for his testimony. Tr. 785-86. He claimed that a possible prison sentence had “nothing to do with why” he cooperated against Giuca. Tr. 806, 814. He denied contacting the police immediately after he left his program on June 9, 2005, Tr. 810.5. Avitto Downplayed His Mental Health Issues Avitto testified that he had been sentenced to attend a “MICA (Mentally III Chemical Abuse) program, drug program.” Tr. 779. He claimed repeatedly that he took Seroquel as a sleeping pill, even though he acknowledged it was designed to combat schizophrenia. Tr. 805, 813-14. He denied using Seroquel to control hallucinations or delusions. Tr. 805-07, 809. He claimed that he was unfamiliar with mental disorders whose symptoms included delusions, hallucinations, disruptive thinking and loss of contact with reality. Tr. 805. 6. The Prosecution Endorsed Avitto’s Version as the Truth In her summation, Ms. Nicolazzi went “all in” on Avitto’s testimony that Giuca was an active participant in Fisher's murder—contradicting the theory she offered in opening as well as Cleary and Calciano’s testimony. She reasoned that Giuca’s statements to Avitto were truthful because as Giuca’s “confidante in jail” Giuca had no reason “to have any holds barred” telling Avitto what happened. Tr. 1008. Although she previously had told the jury Cleary had “the full story” from Giuca, she now minimized all statements made by Giuca to Cleary and Calciano as “partial admissions” which “danced around the truth.” Tr. 1008. What she had opened on as Cleary’s “detailed account of what really happened,” Ms. Nicolazzi now sarcastically dismissed as “a lot of details for someone who supposedly wasn’t even there.” Tr. 989-90.Ms. Nicolazzi repeatedly vouched for Avitto’s veracity. She said there was no way Avitto was making up what he purportedly overheard at Rikers. Tr. 1008. She averred that “everything John Avitto told you is credible;” that there was “no way Avitto could have made this up if it wasn’t what [Giuca] told him.” Tr. 1009- 10. She assured the jury that Avitto was “being truthful and [the jury] could trust him...” Tr. 1010. She argued that Avitto’s credible testimony meant that Giuca was an active participant with Russo in Fisher's murder. She described Avitto’s testimony as “exactly” consistent with, and corroborated by, “undisputable physical evidence.” “Tt didn’t even make sense...that Russo could have done this alone...It makes much more sense, common sense, that he had help...It makes much more sense just like Giuca admitted to Avitto that there was more than one person. He said there were three.” Tr. 1016-17. Ms. Nicolazzi exploited Avitto’s testimony and speculated that Giuca might have even shot Fisher. Tr. 1017, 1019. This prejudicial allegation was not supported by a single syllable of testimony. She cited a brief gap in the five shots as “more evidence jiuca was being truthful when [he told Avitto] he was present.” Tr. 1017. She cited an inconclusive telephone call made by Giuca’s brother’s cell phone to Giuca’s cell phone shortly after the murder as “indisputable, concrete evidence”that “proved” that Giuca was not home and “very well maybe present like he told Avitto.” Tr. 1018. 7. The Prosecution Misled the Jury about Avitto’s Credibility Ms. Nicolazzi described Avitto as “very honest about his problems and criminal past. He freely admitted things that he clearly isn’t proud of and that goes to his credibility as a witness as well.” Tr. 1011. She dismissed the defense argument that Avitto sought and expected consideration in exchange for his testimony as speculation which required belief in an absurd and “uncorroborated” conspiracy theory‘ involving “even the judge,” and as bloviating for which “there is no evidence....just like there is almost no evidence at all of almost anything Mr. Gregory told you.” Tr. 1020-23. She lectured the jury that they “knew” “every time” the “responsible” Avitto had a problem with his program “he contacted his counselor right away” which explained why he was given several chances by a judge. Tr. 1021. Ms. Nicolazzi implied that the immunity she granted Anthony Beharry for weapons charges related to an unspecified caliber gun that was not recovered (but that she “knew” was the murder weapon), demonstrated her candor and the jury -onspiracy argument” violated Giuca’s right to due process. People v. Forbes, 111 A.D.34 1154 (3rd Dept. 2013); People v. Casanova, 119 A.D.3d 976 (3rd Dept. 2014). 13could credit her unequivocal statement that Avitto had not sought or received consideration. Tr. 1020-22. Ms. Nicolazzi told the jury that although Avitto had made mistakes with his life, he admirably cooperated “for once, to do something right” for which Giuca’s counsel unfairly wanted the jury to “condemn him.” Tr. 1022-23, According to Ms. Nicolazzi, the bottom line was that notwithstanding Mr. Gregory’s “loud and dramatic” theatrics, “screaming and yelling” and the “wild speculation he threw out” “there is absolutely [no] evidence, no evidence at all” and no “corroboration” that Avitto sought, expected and/or received a benefit in exchange for his testimony. Tr. 1022-23. C. The 440.10 Motion and the People’s Response Giuca’s motion alleged that the People violated his right to due process by failing to disclose Giglio material, by their knowing or reckless use of Avitto’s false and misleading testimony, their failure to comply with the Rosario rule, and also that Giuca relied on an inaccurate document which prejudiced his ability to cross- examine Avitto. Giuca’s motion annexed several exhibits, including a transcript from the June 13, 2005, court appearance where Ms. Nicolazzi appeared on Avitto’s behalf immediately after he met her for the first time to provide information against Giuca. The transcript revealed that Ms. Nicolazzi requested a private bench conference before Avitto was released without bail. 14Bizarrely, the People’s response primarily addressed a previously resolved juror misconduct issue not even raised in Giuca’s motion. They included an affirmation from Ms. Nicolazzi in which she denied engaging in any conduct designed to benefit Avitto: I did not take or promise to undertake any actions on Avitto’s behalf that were intended to constitute a benefit in return for Avitto’s cooperation with the prosecution at [Giuca’s] trial, and I did not suggest to Avitto in any way, at any time, that actions would be taken on his behalf with respect to his burglary conviction. Nicolazzi Affirmation, 8. Although she conceded her presence at the June 13 appearance, she swore: I did not say anything to the court at that appearance, either on the record or off the record, to influence the court’s treatment of Avitto’s case or to influence the court’s decision to give Avitto another chance to participate in a drug treatment program rather than to incarcerate him at that time. Id. 411. Ms. Nicolazzi did not address her request for a bench conference. She failed to explain that she told the court that Avitto had offered to cooperate against Giuca and that he had provided information on her murder case before the judge decided to release Avitto. The People offered no legal basis for denial of the motion. Instead, they consented to an evidentiary hearing, which the Court ordered on August 20, 2015.On October 19, 2015 (more than 16 months after Giuca’s present counsel made the first of three specific Giglio demands and more than one year after the DA’s Conviction Review Unit sought them via a HIPAA release signed by Avitto), the People disclosed Avitto’s EAC records to the defense. Less than one week before the hearing commenced on November 16, 2015, the People disclosed additional favorable impeachment material, including email and notes from executive level and supervisory prosecutors and EAC employees expressing concer over Avitto’s problems and attempts to cooperate against Giuca. D. Previously Undisclosed Documents Introduced at the 440.10 Hearin; Avitto’s EAC records consisted of several hundred pages of documents generated in connection with EAC’s supervision of him from shortly after his October 2004 burglary arrest through September 2005. They included numerous psychiatric records including reports of his medical history, doctors’ notes, psychiatric diagnoses, evaluations, prescriptions and notes and reports by his EAC case managers. The EAC records also included dozens of pages of handwritten “progress notes” that reported the course of his treatment, updated his progress and documented his counselors’ interactions with him, each other, the court, the DA’s Office, and others. These notes were prepared contemporaneously and chronologically by EAC case managers and supervisors whose interest was the 16improvement of Avitto’s mental health and helping him return to a life of sober living. Both the psychiatric records and the program progress notes contained a treasure trove of specifically requested, yet previously undisclosed, favorable impeachment evidence. 1, Avitto’s Psychiatric Records Avitto was held in lieu of substantial bail after his October 2004 burglary arrest. Shortly after his arrest, Avitto told Rikers medical staff he was suicidal and that he had tried to kill himself three times previously. He said his most recent attempt to end his life occurred seven months earlier after he experienced an auditory hallucination. He told doctors that his mind had been controlled by forces beyond. his control, and that thoughts which were not his own were put in his head. He reported that he had previously been committed for 30 days in order to be evaluated pursuant to C.P.L. § 730. One doctor noted Avitto’s “poor impulse control.” He was diagnosed with a mood disorder and prescribed Seroquel for treatment. In recommending Avitto’s transfer out of general population to the hospital, his physician noted: Currently he’s threatening to kill himself if he’s not sent to the hospital for professional help. He says one way or the other I would do it. He admits to hearing voices asking him to kill himself, You don’t send me to the hospital, you’ll see me in the news.On November 2, Avitto was re-evaluated. It was documented that he had been prescribed Seroquel for “psych.” Doctors again noted Avitto’s wiliness; his suicidal ideation was conditional—he would kill himself if doctors sent him back to general population but not if he was allowed to stay in the mental observation unit of the jail. In November 2004, the People offered Avitto a treatment program with a conditional prison sentence. However, the depressed Avitto remained in jail for months because programs frequently rejected him due to his recent “suicide history” and “behavior associated with psychiatric episodes.” One program rejected Avitto because they were unauthorized to dispense Seroquel. Another rejected him because they did not trust what Avitto reported about his mental health history. On February 22, 2005, Avitto’s case was transferred to TADD (Treatment Alternatives for the Dually Diagnosed). After this development, Avitto, desperate to get out of jail, quickly told his EAC counselor that he had made up the psychiatric history he reported in October 2004. ‘On March 11, Avitto was re-evaluated and confronted by a psychiatrist about his contradictory statements regarding his mental health. The doctor reported Avitto’s claim that he lied to help himself: Patient indicated he manufactured incidents [prior suicide attempts] in order to facilitate transfer to mental observation unit (C-71) where he felt he would be more comfortable...[H]Je does not experience auditory hallucinations nor was he admitted to Kings County 18Hospital in 92/93. He reports wanting immediate access to psychiatrist in C-71/and or the hospital so as not to have to wait to be called...He appeared embarrassed at retracting his prior statements regarding his suicidality and inpatient hospitalizations stating “I had to do what I had to do to change my situation.” It is opined that the current diagnosis of mood disorder NOS and polysubstance dependence is valid. On March 13, Avitto wrote his EAC counselor from his jail cell and candidly admitted that he lied about his mental health history, but “had to say the things I said because at that time I got court.” On March 24, Avitto’s EAC case manager prepared a Psychosocial Evaluation report which recommended him for placement in a MICA program. This report documented that he “fabricated earlier reports because he wanted to be seen by a mental health professional in Rikers.” He “believed that he would not be able to gain access to a mental health provider within Rikers unless he exaggerated his symptoms and psychiatric history.” His case manager noted that he was currently prescribed Quetiapine (Seroquel) for “mood.” On April 12, Avitto’s EAC counselor notified ADA Alisha Akmal (the prosecutor who handled Avitto’s burglary case from October 2004 until June 2005) that he had been accepted by Samaritan Village for residential treatment. On April 19, Avitto’s EAC counselor prepared an Escort Request Form which documented that after his April 28 court appearance, Avitto was to be released from custody and 19escorted to his inpatient residence at “Samaritan Village, Van Wyck, located at 88- 83 Van Wyck Expressway, Jamaica, Queens.”’ On April 28, Avitto was released to Samaritan Village as scheduled, and his case was calendared for an update on June 9. After Avitto’s release, his EAC case manager completed a follow-up interview form, which noted that Avitto suffered from serious and persistent mental illness (mood disorder NOS and polysubstance dependence). On July 18, 2005, more than one month after Avitto began providing Ms. Nicolazzi with information about Giuca, Avitto was evaluated for placement in a MICA program. He reported a history of depression and anxiety, for which he took Seroquel. As he had done in October 2004, he alleged three suicide attempts. He said that he had cut himself and tried to hang himself. He claimed that he had been admitted at Kings County Hospital as a result. He alleged that his most recent suicide attempt occurred after “voices told him to hurt himself.” He told doctors that he recently experienced a visual hallucination and “saw a snake.” He described a history of auditory hallucinations and that he felt “paranoid and anxious.” 5 Avitto resided at Samaritan Village in Queens from April 28 until he absconded on June 9 at 5:25 p.m. A June 9 letter from Samaritan Village filed with the court confirmed that he was a resident of a facility “located at 88-83 Van ‘Wyck Expressway, Jamaica, NY 11435.” On June 13, Ms. Nicolazzi told Sean Ryan that Avitto contacted police on Thursday, June 9, alleging that he had information on a murder ease. Ms. Nicolazzi told the trial court there was no Rosario material from Avitto’s meetings with detectives because she “was present forall those interviews.” Tr. 815. Ms. Nicolazzi first met Avitto on June 13, when he came to the DA's Office. Hg. 458-59. The hearing testimony of two detectives that they met Avitto a few weeks before June 13 at a drug program in “East New York” or “somewhere in Brooklyn North” clearly was untrue. 20Avitto was diagnosed with bipolar disorder and post-traumatic stress disorder, for which he was prescribed more Seroquel. Doctors concluded that Avitto had “limited insight,” “impaired judgment,” “fair” long term memory, “poor” short term memory, “fair” concentration and focus and a “high level of distractibility.” In late August 2005, Avitto was evaluated at St. John’s detox facility, where he had been sent after a drug relapse. One month before he testified, Avitto reported experiencing symptoms of mania and “racing thoughts.” The records documented he was taking Seroquel. In sum, from October 2004 to July 2005, Avitto alleged the following mental health history: * October 2004: he suffered from hallucinations and mind control, had attempted suicide, and voices in his head were telling him to kill himself. He alleged this in order to be moved out of general population into a mental observation unit. « March 2005: he claimed that he fabricated his prior history in order to get out of jail. ‘* July 2005: once out of jail, he again reported a history of hallucinations and suicide attempts in order to get himself admitted into a MICA program. 2. Drug Program Progress Notes and Email Avitto’s EAC progress notes documented that his problems and non- compliance with his program started shortly before he contacted the police seeking 21to cooperate against Giuca. Although he was not violated at his June 9 appearance, Samaritan Village advised the court that he was non-compliant with rules of the facility and that he engaged in impulsive behavior. At 5:25 p.m. that evening Avitto absconded from Samaritan Village. Later that evening, he used cocaine before contacting the police to report that he wanted to share information on the Fisher case. On June 10, Avitto told Ryan that he left Samaritan Village because of his psychiatric problems and that he tried to admit himself into the psychiatric ward at Maimonides. Ryan told Avitto that a warrant had been issued for his arrest. On June 13, Ryan detailed that day’s courtroom conversation with Ms. Nicolazzi and Avitto’s court appearance in a lengthy handwritten progress note: [Ryan] was called into Part 30 to stand on [Avitto’s] case. Ryan met with an ADA from the homicide part® who explained that Avitto had contacted detectives on Thur. 6/9/05 stating he had information on a present murder trial. The ADA explained that she met with Avitto earl[ier] today and wanted to see [about] the possibility of other treatment programs and not having Avitto ROR. Ryan explained that placement would take time. Ryan then stood in front of Judge Parker in Part 30 and approached. The ADA from the homicide part explained that they wanted to have Avitto stay with his mother and report to TADD and Avitto’s attorney agreed...Judge Parker found this acceptable... ® Ms. Nicolazzi acknowledged she was the ADA referenced by Ryan. Hg. 505, 2On the morning of June 14, Anne Swern, Counsel to former District Attorney Hynes, sent an email to EAC Director Lauren D’Isselt, other high-ranking EAC employees and Ms. Nicolazzi, David Kelly and David Heslin from the DA’s Office: Please mark the John Avitto case for special attention. Please keep u[s] posted as to his progress, ie., if he appears for re-assessment, the new site for treatment, etc. Later that day, Ms. D'Isselt assured Ms. Swern that EAC was “keeping [Avitto] close on our radar.” In detailed June 15 and 16 progress notes, Avitto’s case manager documented her concern about Avitto’s constant lying. On the 15th, Avitto tested positive for cocaine, but he repeatedly denied using drugs—at one point he claimed the positive result was from a Novocain shot he received from the dentist. After he was confronted by two EAC case managers and supervisor Ruth O’Sullivan about his lying, he admitted using cocaine on June 9 and 12. Later that day Ms. D’Isselt asked. Ms. Swern about the DA’s position on Avitto. Ms. Swem emailed back, copying Ms. Nicolazzi and Mr. Heslin, that she was “very interested” in Avitto’s progress and wanted him monitored closely. On June 16, shortly after an EAC case manager left a message for Mr. Kelly stating her “concern” about Avitto, Ms. O’Sullivan called Mr. Kelly. His notes of the conversation with Ms. O'Sullivan reported: 23[Avitto] in Pt. 30 and he turned himself into DA’s Office and he has [information] on a murder [case] and he was not remanded and he was in yesterday and [tested positive for cocaine] and TADD submitted a memo to court and Anne Swem knows. [Ms. D’Isselt] and [Ms. Swem] traded messages and this was hours ago. He’s just positive but is not out of control—he is using a lot. Original charge is Burglary in the 3" Degree... On June 17, Avitto was compelled to appear in court because of the June 15 failed drug test. Judge Parker released him with a warning that any future violations or positive drug tests would result in him being jailed.’ After court, Avitto was brought to the EAC offices, where Ms. D’Isselt and Ryan confronted him regarding his “behavior and treatment options.” Ms. D'Isselt warned him that EAC would notify Ms. Nicolazzi and Patricia McNeill, her Fisher case co-counsel, about his continued poor performance. Ryan documented: The Director explained to Avitto that EAC would be in direct contact with ADA Anna [Sigga] Nicolazzi (718) 250-[XXXX] and Patricia Meneil{l] (718) 250-[XXXX], and that EAC had the full support of ADA on any decisions made on behalf of Avitto by EAC. On June 21, Ms. Swern emailed Ms. Nicolazzi seeking another update on Avitto. On September 6, Avitto was required to appear in front of Judge Parker in connection with his unauthorized departure from a detox facility after a late August led for any subsequent violations or the positive drug test which occurred while he was cooperating, with the prosecution. 24relapse. Ryan documented the role Avitto’s cooperation against Giuca played in his release and his conversation with Ms. Nicolazzi after court: [Ryan] stood on case in Part 30 and explained what happened. On approach, the judge stated she would not remand Avitto because she was unsure of the ADA’s stance on the case Avitto is testifying on. Avitto was left ROR...Ryan then spoke to ADA Nicolazzi, who wanted to meet with Avitto today in order to get a statement. [Ryan] set up an interview and sent Avitto to meet with the ADA. On September 13, the day after Giuca’s trial started, Ryan spoke to Ms. Nicolazzi. They discussed his upcoming testimony and his placement at Kingsboro: Ryan spoke to ADA Nicolazzi who wanted to meet with Avitto and have him testify. Ryan stated she would need Avitto to sign a waiver to speak with her. Ryan stated he would contact Kingsboro and try to facilitate this. ...Ryan contacted the ADA and provided her with [Avitto’s contact information at Kingsboro]. On September 15, Ms. Nicolazzi told Ryan that she had spoken with Kingsboro and that she was meeting Avitto later that day. She told Ryan that she would notify him when Avitto was needed to testify. On September 19, after Avitto was kicked out of Kingsboro Rehab Facility for violating the facility’s rules just three days before he testified against Giuca, Ryan described Avitto’s poor behavior and the court’s preference to keep him out of jail because of his cooperation against Giuca: 25On approach [Ryan] went over the humorous violation that had occurred and explained that he had contacted the ADA from the case Avitto was testifying on and had left a message...Due to the open case the Honorable Judge Parker wanted to keep Avitto out... The judge reprimanded Avitto for his behavior...Ryan contacted Avitto’s attorney and ADA Nicolazzi to explain what happened. On September 20, Avitto was ordered to appear at EAC’s offices because he had been kicked out of Kingsboro. Avitto told Ryan that he was meeting Ms. Nicolazzi on September 21. Avitto was ordered to Bridge Back to Life to begin outpatient services. His therapist, Felicia Balaster, required him to sign a contract because of Avitto’s prior “difficulty with respect to your participation in treatment.” The contract noted that Avitto was non-compliant with his treatment plan and that he had an inability to maintain abstinence from drugs. Later that day, Ms. Nicolazzi contacted Ryan, seeking new contact information for Avitto: Ryan was then contacted by ADA Nicolazzi who was looking for Avitto to set up a time for him to testify. Ryan gave the ADA Avitto’s mother’s [and] girlfriend’s address and phone number and also Ms. Balaster’s number at Bridge Back to Life. Ryan then contacted Ms. Balaster who stated she had met with Avitto but he left prior to her receiving ADA Nicolazzi’s message. 26E. The 440.10 Hearing Testimony 1. John Avitto Avitto, who testified while on parole, was accompanied by his attorney Daniel Bibb. Hg. 17. He admitted that he testified falsely at trial about Giuca’s involvement in Fisher’s murder, benefits he sought and received at trial, and his history of mental illness, Hg. 18-21. He emotionally and tearfully apologized, speaking directly to Giuca, and said that he lied out of fear of serving a lengthy prison sentence. Hg. 19, 113-14, Avitto described his history of mental illness, which included bipolar disorder, schizophrenia, and a history of hallucinations and delusions. In 2005 he suffered from bipolar disorder and was a drug addict. Hg. 21-22. He was prescribed Seroquel for treatment of his mental illness. He admitted that his trial testimony that he took it merely as a sleeping pill was a lie. Hg. 23. In October 2004, Avitto told Rikers medical staff that he heard voices and wanted to kill himself in order to be transferred out of general population. Hg. 30. Months later, in order to get out of jail, Avitto claimed that he fabricated his mental health history. Hg 35. Avitto was compliant with the terms of his release from jail until June 9, 2005, when he absconded from Samaritan Village. After he left Samaritan Village, Avitto used cocaine that same evening. Hg. 48. He knew that leaving his program and 27using drugs was a violation of his plea agreement and might result in a prison sentence per its express terms. Hg. 45-47. He did not seek to cooperate against Giuca before he left the program because he was not in any trouble and did not need any help then. Hg. 46, 257. Shortly after he left the program, (he believed it was the following day), Avitto called the police claiming that he had information on the Fisher case. Hg. 49. He admitted that his trial testimony that he did not call the police “immediately” after he left the program was a lie. Hg. 100. The only reason Avitto called the police was in order to help himself avoid jail. Hg. 54, 256-57. He did not seek to cooperate against Giuca out of “decency,” in order to “do the right thing” or because he was upset about what happened to Fisher. Hg. 54. Avitto admitted that he lied at trial when he claimed that he did not seek, expect or receive anything in exchange for his testimony. Hg. 101. He said that Detective Byrnes told him that the prosecutor might help him with his warrant if his information was useful. Hg. 55. A few days after he called the police, Detective Byrnes brought Avitto to meet Ms. Nicolazzi. Hg. 57-58. After the meeting, Ms. Nicolazzi and Byrnes took him to court to return on his warrant. Hg. 65-66. Avitto did not return to court on his ‘own because he was afraid of going to jail. Hg. 66, 147-49. He felt that Ms. Nicolazzi’s presence put him in a better position. Hg. 66. When Avitto saw Ms. 28Nicolazzi approach the bench he was relieved. He believed her intervention helped him avoid jail. Hg. 68, 191-92. ‘A few days after he was released, Avitto lied about a failed drug test. He noted that “everything, every kind of lie I do is to protect myself.” Hg. 73. Avitto admitted that he lied at trial when he denied using cocaine on June 9 and 12, 2005. Hg. 76. He lied at trial when he said he was “doing good” in his drug program. Hg. 96. A few days before Avitto testified against Giuca, he was “scolded” by Judge Parker about his poor performance. Avitto told her that he was nervous because he was getting ready to testify in a big murder case. Hg. 92. He mentioned his upcoming testimony in order to increase his chances of being released. Hg. 94. Avitto admitted that he initially held back details after he began recanting his trial testimony. On cross examination, he admitted that he frequently was untruthful with defense investigator Jay Salpeter and Marley Davis, including in a notarized statement prepared by the latter for his signature. Hg, 27-28, 122, 152-53, 155-56, 189. Avitto incorrectly told the CRU that Ms. Nicolazzi personally appeared in court with him on three occasions because he assumed she helped him three times.’ Hg. 173. * Avitto's EAC records established that in addition to being released on June 13, 2005 after Ms. Nicolazzi advised the court about his assistance against Giuca, the cour cited his possible testimony as the basis forhis release on September 6 and 19, 292 Retired Detective Thomas Byrnes Detective Byrnes claimed that he and Detective McCafferty first met Avitto a few weeks before June 13 at a rehab facility or halfway house in East New York. Hg. 323-24. Even though Avitto alleged significant and potentially case-making evidence on a high-profile murder case, Detective Bymes, a member of the elite Major Case Squad and Detective McCafferty, a first grade homicide detective, were unable to bring Avitto to the DA’s Office for a more thorough interview because Avitto was not allowed to leave the facility. Hg. 280, 322, 756. Detective Byrnes next saw Avitto on June 13, the day he and Ms. Nicolazzi “returned him on the warrant.” Hg. 289, 322, 334. On the way to court, Detective Byrnes and Ms. Nicolazzi told Avitto that there was “a very good chance” he would be remanded. Hg. 336. Detective Byres and Ms. Nicolazzi were “extremely shocked” that Avitto was released without bail. Hg. 336. Detective Byrnes looked for, but didn’t find, any evidence that corroborated Avitto’s claim that Giuca had been with Fisher at an ATM before the murder. Hg. 298-99, 327. He admitted that he didn’t believe Avitto told the truth about Giuca’s purported presence at Fisher’s murder. Hg. 328-29, 346. He shared his opinion that Avitto lied with Ms. Nicolazzi and other detectives. Hg. 329. 303. ADA David Kelly In 2005, Mr. Kelly was in charge of mental health cases for the DA’s Office. He consulted with prosecutors who had cases with mental health issues. Hg. 350- 51. His direct supervisor was David Heslin and he ultimately reported to Anne Swem. Hg. 352. In June 2005, Mr. Kelly knew Ms. Nicolazzi was a homicide prosecutor and he was familiar with “Grid Kid” murder case from newspaper articles. Hg. 369. He knew that Alisha Akmal was a prosecutor in his office. Hg. 368. Mr. Kelly knew Lauren D'Isselt oversaw EAC mental health cases, Ken Linn specialized in EAC mental health cases, and that Ruth O'Sullivan was an EAC social worker. Hg. 366. Mr. Kelly was well versed in mental health credibility issues and their possible impact on Brady and Giglio disclosures. Hg. 354. He had spoken to prosecutors about these obligations in cases in which he had been consulted. Hg. 354. He knew that Seroquel was an anti-psychotic drug and mood stabilizer. Hg. 355. Mr. Kelly said EAC was appropriate for defendants diagnosed with major mental disorders or for drug offenders in need of treatment. Hg. 352, 356-57. ‘Acceptance into TADD required a serious mental health problem, such as schizophrenia, bipolar disorder, major depression, severe anxiety or post-traumatic stress disorder. Hg. 356. Prosecutors reviewed written reports by psychiatrists and social workers before they agreed to place a defendant ina TADD or EAC program. 31Mr. Kelly said it was common for DA case files to contain psychiatric records. Hg. 362, 365. Although he did not discuss “run of the mill cases” with Ms. Swern, he reviewed Avitto’s case at her request because of Avitto’s involvement in a murder case. Hg. 363. Mr. Kelly was “certain” that he was included on the Swern June 14 email because of Avitto’s mental health issues. Hg. 383. He did not recall if he spoke to Ms. Nicolazzi or Ms. Swern about the email, although he didn’t believe he ever asked Ms. Nicolazzi about Avitto. Hg. 377, 384. Mr. Kelly said that Ruth O’Sullivan’s reference to TADD in their June 16 conversation suggested to him that Avitto had mental health issues. Hg. 385. 4. ADA Anna-Sigga Nicolazzi Ms. Nicolazzi did not disclose any Avitto-related Brady or Giglio material to the defense or to Justice Marrus because there was “absolutely no evidence” Avitto received a benefit. Hg. 413, 438, 448, 674-75. She was certain that she didn’t possess any undisclosed evidence related to Avitto’s credibility. Hg. 675. She had no reason to disclose her presence at Avitto’s “routine” June 13 appearance. Hg. 437, 670, 686. She didn’t discuss possible Avitto-related Giglio disclosure obligations with other prosecutors in her office because “I gave him no benefit, and the answer is just no.” Hg. 643.Ms. Nicolazzi didn’t notify the defense about Avitto’s September 19, 2005 violation or transcript. Hg. 450. She claimed that at the time Avitto testified she was unaware of the September 19 violation and that she “never kept track of his court dates.” Hg. 572. Ms. Nicolazzi conceded that Avitto’s EAC records contained favorable impeachment evidence. Hg. 413-14, 423, 538, 585, 606. She acknowledged that Avitto’s psychiatric records and related information, including his handwritten letter and the March 2005 psychiatric notes constituted “important” evidence that demonstrated he said “false things,” made things up, and provided different reasons for his actions in order to benefit himself. Hg. 467, 592, 594, 596-98, 601-02, 611, 615-16, On June 13, 2005, Ms. Nicolazzi “just went over there” with Detective Byrnes and escorted Avitto to a staffed court even though she “didn’t know what Avitto was to her.” Hg. 501-04, 666. On the way to court, she told Avitto that he might be jailed, but she assured him before the appearance that she “[would] tell them what you said.”? Hg. 511. Afier she and Avitto arrived in court, Ms. Nicolazzi told Sean Ryan that Avitto had provided information to her about a murder case earlier that day. She shared This admission contradicted Ms. Nicolazzi’s sworn affirmation, where she denied suggesting to Avitto or the court “that any actions would be taken on his behalf with respect to his burglary conviction.” Nicolazzi Affirmation, $8, u 33this information to explain both her presence and the circumstances of Avitto’s return to court. Hg. 506. Ms. Nicolazzi believed that Judge Parker recognized her as a homicide prosecutor. Hg. 515. After Avitto’s case was called, Ms. Nicolazzi described it as a voluntary return on warrant and she immediately sought a private bench conference, where she informed the court that Avitto recently had provided information on a murder case. Hg. 506, 515-17, 522. Even though Ryan’s contemporaneous notes documented that Ms. Nicolazzi told Judge Parker at the bench “they wanted to have Avitto stay with his mother and report to TADD,” she claimed that she took no position about Avitto’s release at the bench because she was not involved on his case.° Hg. 517. Ms. Nicolazzi didn’t clarify for the jury that she was the anonymous “DA” referenced by Avitto at the June 13 appearance because “there was no reason. He said ‘the DA;’ that’s an accurate answer.” Hg. 666. She acknowledged that Avitto’s ° Ms, Nicolazzi repeatedly contradicted detailed entries in Ryan’s notes which were harmful to the People’s case See, e.g, Hg, 512, 517-18, 567, 576, 578. These notes were contemporaneous handwritten reports created by a social ‘worker with no conceivable reason to lie oF misstate information relevant to Avitto's treatment and progress, and somebody who had no interest in the Fisher trial or its outcome. On the other hand, Ms. Nicolazz's professional and reputational interest in the outcome of this hearing gave her reason to contradict ths reliable and devastating evidence inan effort to sustain Giuca's conviction, Ms. Nicolazz is an at-large editor fora true crime television network who is actively secking additional media opportunities. She has promoted herself on television as the Brooklyn homicide prosecutor who has “never lost a homicide case.” Written promotional materials for Did He Do I? described her as ‘an “elite” homicide prosecutor “witha perfect 35-0 record.” These materials cited the Fisher case as first among her impressive victories. They marketed her prosecution “style,” noting it has been featured in national and local media. Ms. Nicolazzi has appeared in two television shows about the Fisher case. Hg. 430-33. Even ifMs. Nicolazzi did not consciously misrepresent facts contained in Ryan's detailed notes, the Court should consider that her own self-esteem and bias against Giuca might unconsciously cause her to recall events ina slanted or inaccurate way in order to protect her professional reputation. 34motive for cooperating was a contested issue at trial, but averred that his answer was not misleading, so she had no obligation to clarify it. Hg. 666-67. She emphasized that Justice Marrus did not preside over Avitto’s June 13 appearance “for exactly that reason, that he had been talking about a different judge.” Hg. 668. Ms. Nicolazzi declared that the jury did not have the right to know about her involvement in the June 13 appearance as part of their assessment of Avitto’s credibility. Hg. 672. She defended her unilateral decision to withhold this evidence as “absolutely” proper conduct that did not deprive the jury of any relevant evidence about Avitto’s credibility. Hg. 673. She opined that there was no reasonable view of the evidence which might have suggested to the jury that Avitto wanted something in exchange for his testimony. Hg. 673. Ms. Nicolazzi recognized the defense’s “absolute” right to attack Avitto’s credibility, but dismissed the usefulness of the June 13 evidence to the defense because its disclosure “would not have made a difference at all.” Hg. 686. In her view, Mr. Gregory’s “insinuation” that Avitto received a benefit was sufficient for the defense’s argument about Avitto’s lack of credibility, although she agreed actual facts would have been more compelling to the jury than insinuation. Hg. 673-74. Ms. Nicolazzi admitted that the jury would have been entitled to the actual June 13 evidence if Avitto had been asked about it and it was “somehow suppressed” or “hidden.” Hg. 686. 35Ms. Nicolazzi conceded that Ryan’s notes indicated that on September 6 Judge Parker left Avitto out of jail because he was her witness ina murder case. Hg. 568. She denied that Ryan informed her about the circumstances of Avitto’s September 19 release, which occurred two days before Avitto was scheduled to testify." Hg. 578. Ms. Nicolazzi knew that Avitto suffered from mental illness. Avitto told her that he left his MICA program on June 9 because it did not sufficiently address his mental health issues. Hg. 471-72. They “spoke at length” about Avitto’s mental health problems, including depression he suffered as the result of being the victim of childhood sexual abuse. Hg. 472, 545. He told her that he took several medications, including Seroquel for sleep. Ms. Nicolazzi researched Seroquel and knew it “obviously could be taken for things other than [sleep].” Hg. 472. She knew that TADD “had something to do with mental health.” Hg. 534. Ms. Nicolazzi reviewed an email from Alisha Akmal which described a conversation they had on or about June 13 regarding Ms. Nicolazzi’s interest in Avitto’s case and his file. Ms. Nicolazzi agreed that such a conversation “made sense” and she “vaguely” recalled reviewing Avitto’s file. Hg. 536-37. Ryan’s notes confirmed that after Avitto was released on September 19 “he contacted ADA Nicolazzi and stated ‘what happened.” They also spoke about Avitto on September 20. 36In 2005, Ms. Nicolazzi knew David Kelly was in charge of mental health cases and David Heslin was in charge of the drug courts. Hg. 527. She interpreted Ms. Swern’s June 14 and 21 emails as instructions to keep track of Avitto. Hg. 529, 531. Despite acknowledging a court calendar from Judge Parker’s part from a date after June 13 that contained the handwritten note “John Avitto someone took for ADA Nicolazzi in homicide” she maintained that she was not the ADA responsible for Avitto’s case after June 13 and that she did not monitor his court appearances. Hg. 559, 565, 572. Notwithstanding the defense’s specific request for them, Ms. Nicolazzi said she had no reason to look for psychiatric or drug records. Hg. 414, 439-41. Cognizant of Avitto’s right to privacy, she didn’t seek a HIPAA release from him because it “was not her obligation and not something we do with witnesses.”'? Hg. 442-43, 473-74, Even after she reviewed his EAC records, Ms. Nicolazzi maintained that Avitto’s trial testimony was entirely truthful. Hg. 467. She rationalized that Avitto’s performance in his drug program “could be categorized as good” even though “he definitely screwed up.” Hg. 579-80. On September 13, waiver to speak with he 5, Ryan documented that he advised Ms. Nicolazzi that “she would need Avitto to sign aMs. Nicolazzi has always believed that more than one person was present at Fisher’s murder. Hg. 446. Avitto described the robbery and murder to her as “basically at the same time, at the same transaction;” it was “all one and the same.” Hg. 476-77. Although Avitto’s version was different from what she knew about the case, she felt these inconsistencies made him more credible. Hg. 477-78. But Ms. Nicolazzi conceded that she did not believe Giuca accompanied Fisher on a second trip to an ATM before Fisher was robbed and killed.'? Hg. 483. Ms. Nicolazzi decided to call Avitto as a trial witness one or two days before he testified on September 22, after Cleary and Calciano already testified. Hg. 525, 636-37. She did not mention Avitto in her opening because she had not yet decided whether he would testify. Hg. 650. 5. Trial Counsel Samuel Gregory Mr. Gregory had an “adversarial but respectful” relationship with Ms. Nicolazzi. He believed that he could rely upon her representations regarding Brady or Giglio material. Hg. 715. Despite specific defense demands, the prosecution did not disclose any Avitto-related Giglio or Rosario material. Hg. 716-20. "Three times in her summation, Ms. Nicolazzi implied the existence of a second ATM trip: “I suggest that Mark Fisher was supposed to be robbed, supposed to be dealt with during that first visit to the ATM machine;” Tr. 1012; “So that eal was made while Russo and Mark were on their way to the ATM machine the fist time,” Tr. 1013; “Thi is an admission..that (Giuca] had knowledge and was part and parcel of his plan...t0 show Mark “what was up” part by robbing him when they went to the ATM and for one reason or another, it didn’t happen that fist time around.” Tr. 1014 (emphasis added). 38Mr. Gregory used the best available evidence he had to attack Avitto’s credibility. Hg. 728. If he had possessed evidence that Avitto sought or received a benefit, or which demonstrated he was a liar, he would have presented it to the jury. Hg. 728-29. Ifhe had proof that Avitto suffered from serious mental illness or which contradicted his claim that he took Seroquel as a sleeping pill, he “100%” would have confronted Avitto with it. Hg. 729-30. Mr. Gregory was unaware that shortly before Avitto testified he had admitted to medical personnel that he had lied in order to get out of jail. If he had known that, he “absolutely” would have confronted Avitto with this “very important” evidence because it demonstrated he was “willing to lie in order to manipulate his situation and improve his situation.” Hg. 735-36. Mr. Gregory “probably” would have crossed Avitto with proof of Ms. Nicolazzi’s involvement in the events of June 13 if he had known about them. Hg. 731. IfMr. Gregory had known that Avitto had been released on September 6 and 19 because of his status as a witness against Giuca, he “probably” would have informed the jury about it. Hg. 733. If Mr. Gregory had known that Avitto had been thrown out of his drug program three days before he lied that he was “doing good” in it, “he probably would have” crossed him on it. Hg. 734-35. Mr. Gregory requested a benefit charge on Avitto because he believed it was for the jury to determine whether Avitto received a benefit from the prosecution. 39Hg. 736. He made the best arguments to the trial court in support of his belief that Avitto received a benefit. Hg. 736-37. He did not cite Avitto’s June 9 attempt to volunteer against Giuca or his June 13 court appearance, including Ms. Nicolazzi’s appearance. Hg. 737. He did not notify Justice Marrus about Ms. Swern’s emails or evidence which suggested that Avitto had been released on September 6 or 19 because of his upcoming testimony against Giuca. Hg. 737. Had he known about these facts, he would have cited them as part of his application for a benefit charge. Hg. 738. Justice Marrus declined to give the charge. Hg. 739. 6. Detective James McCafferty Detective McCafferty was the sole prosecution witness at the hearing. He claimed that he and Detective Byrnes met Avitto at a drug program “somewhere in Brooklyn North” two to four weeks prior to June 13, shortly after Avitto called the DA’s Office seeking to cooperate against Giuca. Hg, 757-58, 761. Detective McCafferty recalled that Avitto stated that he took medication in connection with his depression, and that Ms. Nicolazzi asked him about the medication. Hg. 766, 788-89. He said that Detective Byrnes did not raise concerns about Avitto’s veracity to him or during a discussion with prosecutors regarding the pros and cons of calling Avitto as a witness. Hg. 773, 799 of Hg. 329. 40Detective McCafferty labeled Avitto’s trial testimony that on June 13 he was brought to the DA’s Office by detectives as “absolutely a lie.” Hg. 762, 782-83. He described Avitto’s claim that Giuca was at the ATM with Fisher as “not possible.” Hg. 795. ARGUMENT POINTI THE DOCUMENTARY AND TESTIMONIAL EVIDENCE INTRODUCED AT THE HEARING ESTABLISHES THAT THE PROSECUTION COMMITTED NUMEROUS AND SERIOUS GIGLIO VIOLATIONS THAT SEPARATELY AND COLLECTIVELY EASILY SATISFY THE “REASONABLE POSSIBILITY’ MATERIALITY STANDARD A. The Applicable Materiality Standard ‘Under federal law, non-disclosed favorable impeachment evidence is material if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the trial would have been different. United States v. Bagley, 443 U.S. 667, 680 (1985). A “reasonable probability” means “the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.” Smith v. Cain, 132 $.Ct. 627 (2012). The federal standard requires that a reviewing, court be confident that that the verdict would have been the same had the withheld evidence been disclosed. Kyles v. Whitley, 514 U.S. 419, 453 (1995). New York utilizes a more lenient standard where, as here, undisclosed Giglio material was the subject of a specific request by the defense. In these circumstances, 41the prosecution’s failure to disclose is “seldom, if ever” excusable and the defense need only show that had the withheld evidence been disclosed there would have been a “reasonable possibility” of a more favorable outcome. People v. Vilardi, 76 N.Y.2d 67, 76-77 (1990). This standard is satisfied if the withheld information “would have added a little more doubt to the jury’s view of the evidence and it is “reasonably possible that a little more doubt would have been enough.” People v. Negron, 26 N.Y.3d 262, 271 (November 23, 2015). The prosecution’s Giglio obligation is an institutional one, without regard to good or bad faith. People v. Wright, 86 N.Y.2d 591, 598 (1995); People v. Steadman, 82 N.Y.2d 1,8 (1993). The defense is entitled to presume a prosecutor’s good faith and rely upon a representation that no favorable impeachment evidence exists and that if it did, the prosecutor would disclose it. Banks v. Dretke, 540 U.S. 668 (2004); Strickler v. Greene, 527 U.S. 289 (1999); People v. Qualls, 70 N.Y.2d 863, 865 (1987). Where more than one item of favorable impeachment evidence has been withheld, materiality must be determined by the “cumulative impact of the withholding.” Kyles, 514 U.S. at 436-37. 42B. The People’s Giglio Violations in This Case 1. Ms. Nicolazzi’s Intervention into Avitto’s Case and Tacit Benefits The defense argued that Avitto was biased in favor of the prosecution because he sought and received help on his own case in exchange for his testimony against Giuca. Mr. Gregory tried to expose Avitto as the lying, opportunistic drug-abusing career criminal and jailhouse informant that the evidence at the hearing conclusively established he was. However, counsel was thwarted from proving this at trial because the prosecution kept him in the dark about the actual circumstances surrounding Avitto’s cooperation, including the relationship between his June 9 violation of his plea agreement and decision to call with police, and his June 13 release without bail after Ms. Nicolazzi appeared in court on his behalf. Even though evidence of Avitto’s specific bias against Giuca was critical to the jury’s assessment of his motive to testify, the prosecution’s suppression of it forced the defense to resort to less compelling general attacks on his credibility, such as his prior criminal history. See Davis v. Alaska, 415 U.S. 308, 316-18 (1974) (recognizing a defendant’s fundamental right to attack the specific bias of a witness and that limiting the defense to a general credibility attack might lead the jury to 43conclude that defense was “engaged in speculative or baseless attack of credibility of an apparently blameless witness”).'* The prosecution’s presentation of Avitto’s altruistic motive for cooperating against Giuca had one wrinkle: Avitto testified that he contacted police “sometime in June” 2005 and documents trial counsel secured from the court file of his 2004 burglary case revealed that Avitto left his drug program on June 9 and was retumed on a warrant on June 13. Ms. Nicolazzi ironed this out by eliciting from Avitto that he responsibly contacted Sean Ryan before the two of them walked over to court, where at an appearance staffed with an unnamed “DA,” Avitto was released without incident. Tr. 812. Contrary to this blatantly misleading narrative, the actual and truthful'> events between June 9 and 13, which culminated in Avitto’s release after Ms. Nicolazzi told a judge that he was speaking to her about a murder case, constituted favorable impeachment evidence. The prosecution kept from the jury that Avitto waited until almost immediately after he placed himself in legal peril on June 9 to volunteer months-old incriminating evidence against Giuca. It would have been significant for the jury to know that a jailhouse informant presented by Ms. Nicolazzi as an Ms. Nicolazzi engaged inthe exact argument thatthe Supreme Court warned would unfairly prejudice @ defendant ifhis right to atack the specific bias of a witness was curtailed. She criticized Mr. Gregory for his futile and speculative cxoss of the blameless and honest Avitto, who “for once, tried to do something right and for that Mr. Gregory wants you condemn him.” Tr. 1020-23. "The People will no doubt argue that Avitto's hearing testimony was not credible, as if that magically made his trial testimony credible. Even if the Court disregards Avitto’s hearing testimony and accepts his 2005 testimony as his “final word” it will have no impact on the merits of Giuca’s claims. 44honest man “doing the right thing” for the first time in his life apparently didn’t choose to follow his conscience and contact authorities until after he exposed himself toa lengthy prison sentence. After Avitto met Ms. Nicolazzi at the DA’s Office and volunteered evidence against Giuca, she and Detective Byrnes “return[ed] [Avitto] on the warrant.” Hg. 289, 322. Avitto testified at the hearing that he helped the prosecution in order to avoid being incarcerated, and that he was comforted by Ms. Nicolazzi’s presence in court with him immediately after he shared information about Giuca with her. Notwithstanding the hearing prosecutor’s mocking of Avitto’s fear of jail, he had good reason to be concerned: Ms. Nicolazzi and Detective Byres both told Avitto there was a good chance that he would be incarcerated, even though Ms. Nicolazzi assured him “we’ll tell them what you said, but we don’t know.”'® Hg. 336, 511. After Ms. Nicolazzi, Detective Byrnes and Avitto arrived in court, Ms. Nicolazzi met with Sean Ryan, who three days earlier had requested a warrant from the court for Avitto’s arrest. Ms. Nicolazzi kept her word to Avitto and told Ryan that Avitto had contacted police on “Thursday, June 9” offering to provide information on a murder case. She had met with Avitto earlier that day (June 13). '® Ms. Nicolazzi and Detective Byrnes demolished the prosecution's principal argument that Avitto could not have sought, expected or received a benefit from Ms. Nicolazzi on June 13 because he “knew” he would be released. Hg, ‘Avi woud have ben lensed without Mo Nols rventon ai cse male he tenes lima pin whether Avitto sought or received a benefit was a question of fact for the jury to decide after hearing the evidence rather than an issue for Ms. Nicolazzi to unilaterally determine its admissibility. 45She requested that EAC place Avitto in a new treatment program.'? Ryan told Ms. Nicolazzi there were no programs currently available for Avitto. Once his case was called, Avitto watched Ms. Nicolazzi assert control over the appearance that determined his fate. She labeled him a “voluntary” return on a warrant before she approached the bench and advised the court considering Avitto’s liberty that he was providing information to her about an open murder case. Ryan’s detailed and contemporaneous handwritten notes documented that while he and Ms. Nicolazzi were at the bench, she told Judge Parker “they wanted Avitto to remain at home and report to TADD...and his attorney agreed” (emphasis added). Under any common sense interpretation, Ms. Nicolazzi helped Avitto when she by presented him in a favorable light to Judge Parker before the court decided whether or not to incarcerate Avitto in accordance with the express terms of his plea agreement. Ata minimum, the jury was entitled to consider what significance, if any, Ms. Nicolazzi’s June 13 intervention into Avitto’s case contributed towards his decision to testify against Giuca because (1) Avitto approached authorities with old information only after he triggered a mandatory prison sentence, (2) after Avitto spoke to Ms. Nicolazzi about Giuca, she escorted Avitto to court and told Avitto she would let the court know that he spoke to her, (3) she told the court that Avitto Ms, Nicolazzi denied she asked Ryan to seek another program for Avitto. She claimed that she only repeated what Avitto told her. Even if that was true, she still made a request for Avitto’s benefit after he started speaking to her about Giuca. Hg. $12. She also denied asking the court to release Avitto, notwithstanding Ryan’s detailed notes which unequivocally reflected that she did. Hg. 517-18, 46provided information against Giuca, (4) she told the court she preferred that Avitto be released to his home and report to TADD, (5) the court released Avitto with the understanding that he would live at home with his mother and report to TADD, (6) Avitto denied that he sought, expected or received a benefit, (7) Avitto misled the jury about his June 13 court appearance, which included concealing Ms. Nicolazzi’s appearance, and (8) Ms. Nicolazzi argued that Avitto’s only motive for cooperating was “for once to do something right” and there was “absolutely no evidence” that Avitto sought or received consideration in exchange for his testimony. It was clear that after the June 13 bench conference, Judge Parker no longer viewed Avitto as merely an ordinary defendant who may have violated his plea agreement, but as a defendant who may have violated his plea agreement and as a witness who was providing information on an important murder case. Ryan’s progress notes proved that Avitto benefited on other occasions from the favorable information Ms. Nicolazzi shared with Judge Parker about him on June 13. Shortly before he testified against Giuca, Avitto twice faced Judge Parker with his liberty at stake because of his non-compliance with his TADD program. Before his September 6 appearance, Ryan told Avitto that if he wasn’t remanded, he would sent to rehab. After the case was called, Judge Parker said at the bench that she would not remand Avitto without Ms. Nicolazzi’s input. This demonstrated that the court’s “default” position was to credit Avitto’s status as a possible witness against 47Giuca and not incarcerate him for a violation, short of a contrary request from Ms. Nicolazzi. A similar scene unfolded at a bench conference on September 19. There, just. three days before Avitto testified against Giuca, Ryan referenced Ms. Nicolazzi and reminded Judge Parker that Avitto was cooperating with her murder case. Judge Parker “wanted to keep him out” because of his upcoming testimony and released him. It could not be more obvious that the defense was deprived of specifically requested Giglio material, which if disclosed, would have firmly corroborated the defense theory that Avitto benefited from speaking with Ms. Nicolazzi. His June 13, September 6 and September 19 court appearances all occurred under the same circumstances and resulted in an identical outcome: the only issue before the court was Avitto’s liberty because of his non-compliance with his program and he was released after his status in the Fisher case specifically was brought to the court’s attention by Ms. Nicolazzi or Ryan. Given Ms. Nicolazzi’s indisputable actual knowledge of at least some of this powerful impeachment evidence, it was unconscionable for her to criticize Giuca’s counsel in front of the jury for his failure to produce evidence or corroboration in support of his “speculative” theory that Avitto sought, expected or received a benefit when she suppressed from him the very evidence which would have proven the truth 48of the defense claim. Tr. 1020-23. She knew that her emphatic argument that there was “absolutely no evidence” that Avitto sought, expected or received a benefit was demonstrably false. The Court should categorically reject Ms. Nicolazzi’s deeply flawed explanation for her nondisclosures, which demonstrated a disturbing lack of understanding and/or respect for a prosecutor’s Giglio obligations. Her personal involvement in the critical events of June 13 leads to the unavoidable conclusion that her suppression of the favorable impeachment material was no oversight. Her justification that it “absolutely” was proper to withhold the specifically requested Giglio material because she unilaterally decided it “would not have made a difference” to the defense was a flagrant abuse of her authority. Hg. 672-73, 686. It was not for Ms. Nicolazzi to act as gatekeeper of the evidence and determine the value or impact of favorable impeachment material. She was obligated to disclose the evidence so the defense could determine whether to use it, and ultimately, it was for the jury to decide its significance. See People v. Fuentes, 12 N.Y.3d 259, 265 (2009) (criticizing People’s failure to disclose or at a minimum seek in camera review); People v. Baxley, 84 N.Y.2d 208, 213 (1994); People v. Andre W., 44 N.Y.2d 179, 185 (1978) (“when there is substantial room for doubt, the prosecution is not to decide for the court what is admissible or for the defense what is useful”); see also, People v. Robinson, 133 A.D.2d 859 (2™ Dept. 1987); 49People v. Springer, 122 A.D.2d 87 (2! Dept. 1986); People v. Saddy, 84 A.D.2d 175 (2™ Dept. 1981); People v. Crespo, 168 Misc.2d 182, 186-87 (Bronx Cty. Sup. Ct. 1995) (“New York courts have made it clear on several occasions that it is not for the prosecutor to decide the “usefulness” of evidence...It is for the trier of fact, and not for the prosecutor, to decide the credibility of witnesses”). Ms. Nicolazzi’s testimony that she did not consider Avitto a “cooperating witness” on June 13 was irrelevant to the issue of whether his cooperation was motivated by the hope or expectation of help on his own case. Hg. 504, 681. The jury’s right to know about possible benefits received by a witness doesn’t turn on the prosecutor's classification of her relationship with the witness or any label affixed to it. People v. Novoa, 70 N.Y.2d 490, 497 (1987). Avitto’s perception of the situation is what mattered, not Ms. Nicolazzi’s immediate assessment on whether Avitto would testify months later at trial. The timing and circumstances of Avitto’s first volunteered contact with the police with information he “held” for months spoke volumes about his motivation. When he met Ms. Nicolazzi for the first time he had absconded from his program, used cocaine and he knew that a warrant had been issued for his arrest. Avitto knew that his offer to cooperate against Giuca put him in a more favorable position vis-a- vis his own case than if he had not volunteered as a witness or been uncooperative with the prosecution. Ms. Nicolazzi bolstered Avitto’s incentive to cooperate when 50she told him that she would advise the court that he provided information against Giuca. Hg. 511. Labels aside, several unanimous Court of Appeals decisions firmly establish that, in light of the circumstances that led to Avitto’s cooperation and release on his ‘own case, it was the province of the jury to weigh the question of whether Avitto ‘was motivated to cooperate against Giuca out of hope for assistance on his own case against Ms. Nicolazzi’s claim that he did so only out of good citizenship. A homicide prosecutor’s appearance on a witness’ criminal case is a potential benefit that must be disclosed as favorable impeachment evidence. People v. Colon, 13 N.Y.3d 343, 349-50 (2009). Recently, the Court unequivocally held that a homicide prosecutor’s appearance on a witness’ case where his liberty was at issue but the prosecutor did not ask for bail was evidence of a “possible benefit” that must have been put before the jury. People v. Taylor, 26 N.Y.3d 217 (October 27, 2015). Ms. Nicolazzi’s intervention into Avitto’s case was much more extensive, secretive and impactful than the prosecutors’ involvement in the witnesses’ cases in Colon and Taylor. In Colon, the homicide prosecutor appeared at the witness’ regularly scheduled calendar call and conveyed a pre-existing plea offer made by another prosecutor. 13 N.Y.3d at 348. She didn’t disclose her presence at that appearance, but she did elicit testimony from the witness that he received other SIconsideration, so Colon’s counsel was able to argue credibly that the witness had a motive to testify favorably for the prosecution. Jd. The Court reversed Colon’s double-murder conviction (in total, the defendant was convicted of shooting four people) because the prosecution failed to disclose benefits to the witness, including the prosecutor’s appearance on the witness’ case. The Court noted that “by their very nature, benefits conferred on a witness by a prosecutor provide a basis for the jury to question the veracity of a witness on the theory that the witness may be biased in favor of the People.” /d. at 349. In Taylor, the homicide prosecutor appeared on the witness’ probation violation and requested that he be released. Although Taylor’s prosecutor later argued she did not provide the witness with a benefit, she disclosed the complete circumstances of the appearance, which allowed Taylor's attorney to confront the witness about the impact the homicide prosecutor’s assistance had on his willingness to testify against Taylor. Thus, like the facts in Colon and unlike Giuca, Taylor’s defense possessed actual evidence, rather than mere speculation, in support of the argument that a key witness benefited from his cooperation. During deliberations, Taylor’s jury requested to see the “benefits offered” to the witnesses. However, the court failed to include the testimony about the prosecutor’s appearance at the witness’ probation violation hearing. The Court of Appeals reversed Taylor’s murder conviction because the jury “plainly wanted” 52evidence of the “benefits offered” which “necessarily included” the testimony regarding the prosecutor’s appearance on the witness’ case. The Court further held that the trial court’s omission unduly prejudiced Taylor because it mischaracterized the state of the evidence. Taylor, 26 N.Y.3d at 224-27. In detailing the prejudice caused Taylor, the Court may as well have been addressing Giuca. Because the People’s favorable treatment of the witness “was essential to the jury’s ability to judge the credibility” of a significant witness whose credibility was a “key issue at trial, and in light of the witness’ criminal past, the truthfulness of [his] testimony was subject to serious dispute,” the evidence sought by the jurors had “an especially strong bearing on the witness’ credibility.” Id. at 226. Because the requested testimony showed that “the trial prosecutor had helped [the witness] win pretrial release in another case, the testimony suggested that the [witness] had a motive to testify falsely in favor of the prosecution...” Id. The Court criticized the trial court for implying “that there was no evidence... regarding benefits received by [the witness] even though testimony about such benefits did in fact exist.” /d. at 227. Although the same concern is applicable to Ms. Nicolazzi’s false claim that there was “absolutely no evidence” that Avitto received a benefit, the prejudice suffered by Taylor paled in comparison to the prejudice caused Giuca, Taylor’s jury at least heard testimony regarding the benefit; 33Ms. Nicolazzi’s wholesale suppression deprived Giuca from presenting any evidence that Avitto sought or received a benefit. ‘The binding authority of Colon and Taylor compels the conclusion that the People’s suppression of Ms. Nicolazzi’s intervention into Avitto’s case violated Giuca’s right to due process. If one appearance at an ordinary calendar call where the witness’ liberty was not at stake (Colon) and a single appearance without a bail request (Taylor) were evidence of benefits which must have been presented to the jury, then without question proof that Avitto was released on his own recognizance three times after the court was advised that he was cooperating against Giuca should have been disclosed to the defense. The failure to do so was especially egregious because Avitto misled the jury about the possible benefits and Ms. Nicolazzi boldly denied the existence of any such evidence. Evidence that Avitto might have sought, expected or received a benefit in exchange for his testimony also required disclosure to the defense as a possible tacit benefit under People v. Cwikla, 46 N.Y.2d 434 (1979), another unanimous Court of Appeals reversal on Giglio grounds. The People must disclose impeachment evidence sought by the defense if it is “of such a nature that the jury could have found that, despite the witness’ protestations to the contrary, there was indeed a tacit understanding between the witness and the prosecution, or at least so the witness hoped.” 46 N.Y.2d at 441; see also, People v. Ford, 41 A.D.2d 550, 551 (2* Dept. 541973) (“substantial possibility” that witness had impression he would be rewarded with consideration “must have been enhanced in [witness’] mind by the fact he had been released on parole on pending charges shortly before beginning of defendant’s trial and immediately prior to his conversation with [the ADA]"). If the evidence sought did not prove the existence of an express promise, but it created a “strong inference, at the very least, of an expectation of leniency” the jury was entitled to the evidence. Cwikla, 46 N.Y.2d at 442. Particularly relevant to Giuca’s case is that the persuasiveness of such an inference was suggested by Ms. Nicolazzi’s use of “misleading and obstructive tactics. Jd. Cwikla is devastating to the People’s position. The combined impact of the evidence admitted at the hearing conclusively demonstrated the existence ofa strong inference that Avitto at least expected or hoped (let alone received) consideration in exchange for his cooperation—even without crediting Avitto’s hearing testimony. For example, Avitto’s months-long decision to hold his evidence against Giuca until immediately after he exposed himself to a mandatory prison sentence, followed by Ms. Nicolazzi’s revelation to the court that he was speaking with her about a murder case before he was released, without more, created a “strong inference” that he sought, hoped for and/or received assistance on his own case from the prosecution in exchange for his cooperation. 35Ms. Nicolazzi’s hearing testimony substantially strengthened the inference. Ms. Nicolazzi, the homicide prosecutor on the high-profile case that Avitto sought to cooperate on after he exposed himself to a prison sentence, created the appearance that she was concerned about Avitto’s case and that she could influence the outcome. Avitto had an open warrant and was in legal limbo when he spoke to Ms. Nicolazzi about Giuca. But after he provided information about the Fisher homicide to Ms. Nicolazzi, she told him that she would notify the court about his assistance, which she did in his presence immediately before he was released. Hg, 511. What possible conclusion could Avitto have reached other than Ms. Nicolazzi “went to bat for him” with his sentencing judge because he had provided information to her against Giuca? Conversely, after Avitto was violated for failing a drug test and lying about using cocaine a few days after Ms. Nicolazzi’s intervention into his case, EAC Director Lauren D'Isselt and Sean Ryan confronted him about his noncompliance and pointedly warned him that EAC would be in regular contact with Ms. Nicolazzi. Ms, D’Isselt told Avitto that EAC had Ms. Nicolazzi’s support in regard to any decisions it made about him. Any person in Avitto’s shoes would have understood this threat loud and clear: Ms. Nicolazzi had the power to “help” him if he continued to provide information to the prosecution and she might “hurt” him if he didn’t do as she and/or EAC wanted. 56The Cwikla inference was further enhanced by the fact that fewer than 24 hours after Avitto met Ms. Nicolazzi, Anne Swem, Counsel to District Attorney Hynes and one of the top executives in the DA’s Office, took personal interest in his mundane case and instructed high-level prosecutors (including Ms. Nicolazzi) and EAC supervisors (including Ms. D’Isselt) to mark him for “special attention.” In addition, shortly after Avitto met Ms. Nicolazzi, EAC supervisor Ruth O'Sullivan told David Kelly that Avitto was released after he “turned himself into the DA’s Office” with information on a murder case. Finally, the inference was conclusively established by compelling evidence that on September 6 and 19 Avitto was released specifically because of his cooperation against Giuca. The People’s “misleading and obstructive tactics” strengthened the inference of the tacit benefit. Cwikla, 46N.Y.2d at 442. Ms. Nicolazzi failed to correct Avitto’s misleading testimony about the June 13 appearance. She told Justice Marrus that there was “absolutely no evidence” of consideration even after Mr. Gregory’s thorough Giglio demand at the charge conference, where he correctly stated that it was for the jury to determine the benefit question. In sum, Ms. Nicolazzi created a perfect storm of prejudice by withholding favorable impeachment evidence, eliciting misleading testimony about it, vouching for the inaccurate testimony and ridiculing the defense for lacking the very evidence that she deliberately failed to disclose. Colon, 13 N.Y.3d at 350. 372. Avitto’s EAC Records Had the People disclosed Avitto’s EAC records at trial, the defense would have had use of a cornucopia of favorable impeachment evidence to demolish his credibility, including: © Avitto’s claim that he suffered from serious mental illness, including auditory hallucinations just a few months before he testified that he “overheard” an incriminating conversation between Giuca and his father. ¢ Avitto’s frequent exploitation of his mental health history depending on his current circumstances, including evidence that he fabricated claims of mental illness in order to get out of jail a few months before he volunteered to cooperate against Giuca immediately after exposing himself to a lengthy prison sentence, and that after he became a cooperating witness he again alleged that he had serious mental illness to secure placement in a mental health program. All of this would have undermined his sworn denial of a mental health history. © Contrary to his trial testimony that he took it as a sleeping pill, Avitto repeatedly was prescribed Seroquel for his serious and persistent mental illness. * Avitto contacted police to cooperate against Giuca the same evening he absconded from his drug program and used cocaine the evening he left and the day before he met Ms. Nicolazzi, all of which he denied at trial. © The day after he violated his program and just days before he met Ms. Nicolazzi, Avitto tried to admit himself into a psychiatric ward because of his mental illness. 58Ms. Nicolazzi appeared on Avitto’s case on June 13, 2005, and that told the court at the bench that he was speaking with her about a murder case before she asked the court to release Avitto, which the court did. On June 14, Ms. Swern instructed Ms. Nicolazzi and other important ADAs and EAC employees to mark Avitto “for special attention” and keep her personally apprised about him. On June 16, EAC told David Kelly that Avitto “tured himself into the DA’s Office with information about a murder case.” On June 17, the EAC Director warned Avitto in a conversation about his poor performance that EAC would be in regular contact with Ms. Nicolazzi. On July 18, shortly after Avitto started cooperating with the prosecution and two months before he testified against Giuca, doctors noted that he had “poor” short term memory, “fair” long term memory, “limited” insight, “impaired” judgment, “fair” concentration and a “high level” of distractibility. On September 6, Avitto was released without bail because the court would not remand Avitto without Ms. Nicolazzi’s consent because of his status in Giuca’s case. Three days before Avitto testified he was “doing good” in his drug program, he was kicked out of a rehab facility after less than two weeks for failure to follow its rules. On September 19, Avitto was released without bail because the court did not want to incarcerate him in light of his upcoming testimony against Giuca. 59Ms. Nicolazzi conceded that Avitto’s EAC records contained favorable impeachment evidence. Hg. 413-14, 423, 467, 538, 585, 592, 594, 596-98, 601-02, 606, 611, 615-16. In 2005, she was an experienced senior homicide prosecutor entrusted with what was at that time the most high-profile murder case in New York. Hg. 406-07. She has received extensive training on Brady and Giglio, including on the specific issue of psychiatric records as potential Giglio material. Hg. 434-35. She understood the difference between specific and general demands for favorable impeachment evidence and knew that the defense made specific Giglio demands for psychiatric and drug treatment records. Hg. 440-41. She knew that Avitto was a struggling drug addict with serious mental health problems. Hg. 471-73, 545. Nevertheless, Ms. Nicolazzi pleaded “justifiable ignorance” about the mother lode of favorable impeachment evidence contained within Avitto’s EAC records. In her view, she was under no obligation to seek Avitto’s EAC records and review them for possible Giglio material. Hg. 473-74. She could not have been more wrong because the obligation to disclose Giglio material was not personal to her, but extended to the DA’s Office as a whole. Steadman, 82 N.Y.2d at 8. The hearing evidence established that in addition to Ms. Nicolazzi, several others in her office knew that Avitto was a likely witness against Giuca and that he had serious mental health and drug problems. This actual knowledge triggered the 60People’s Giglio obligation to review Avitto’s EAC records and disclose the favorable impeachment material contained therein. Even if Ms. Nicolazzi lacked actual knowledge about the specific favorable impeachment evidence, she and others should have known, and still were required to disclose the Giglio material in Avitto’s EAC records. United States v. Agurs, 427 U.S. 97, 103 (1976); Giglio v. United States, 405 US. 150, 154 (1972); Kyles, 514 US. at 436-38. Ms. Nicolazzi and Avitto “spoke at length on multiple occasions” about his mental health problems. Hg. 472. Avitto told her that he left his MICA (Mentally Ill Chemical Abusers) program on June 9 because it did not properly address his mental health needs. Hg. 471-72. He told her that he suffered from depression as the result of being victimized as a child. Avitto told Ms. Nicolazzi that he would never conquer his drug addiction if he did not receive mental health counseling in a MICA program. Hg. 545. Ms. Nicolazzi knew that Avitto used Seroquel and that it “obviously” was prescribed for serious mental illness. Hg. 472. However, rather than question Avitto she accepted Avitto’s explanation that he used Seroquel as a sleeping pill. Hg. 473. On June 13, Ms. Nicolazzi discussed placing Avitto ina TADD program with Sean Ryan and Judge Parker. She knew TADD was for people in need of mental health treatment. Hg. 534. 61Shortly after meeting Avitto, Ms. Nicolazzi sought out Alisha Akmal to discuss Avitto’s burglary case and to see her file. Hg. 536-37. Ms. Akmal prosecuted that case and prior to June 13 was the prosecutor EAC updated about Avitto’s progress. Several weeks before Ms. Nicolazzi spoke to Ms. Akmal, EAC advised Ms. Akmal about Avitto’s acceptance into Samaritan Village. Before June 13, Ms. Akmal assuredly knew more about the specifics of Avitto’s mental health and drug problems than anyone in the DA’s Office. Yet Ms. Nicolazzi claimed that she and Ms. Akmal never spoke about his mental health issues. Hg. 537. It is hard to fathom why Ms. Nicolazzi would have approached Ms. Akmal unless she wanted to know about Avitto’s underlying case, including his psychiatric and drug program compliance problems. After Avitto met with Ms. Nicolazzi, several prosecutors, including one high- level executive (Anne Swern) and two supervisors with expertise in mental health and drug court issues (David Kelly and David Heslin) were acutely aware of Avitto’s mental health and drug abuse problems. They were in direct contact with Lauren D'Isselt and other EAC supervisors regarding Avitto’s poor performance in TADD—a program all concerned knew was for treatment of defendants with serious mental illness who also were drug addicts. The only conceivable reason for these high-level discussions about Avitto’s low-level burglary case was because he was a witness in a high-profile murder case who was frequently non-compliant with an 62EAC monitored program designed to treat his serious mental health and drug problems. Ms. Nicolazzi, Mr. Kelly, Mr. Heslin and EAC supervisors were instructed by Ms. Swern to mark Avitto for “special attention” and closely monitor his progress in TADD. Ms. Nicolazzi knew that Messrs. Kelly and Heslin were in charge of mental health cases and the drug court, respectively. Mr. Kelly knew Ms. Nicolazzi was a homicide prosecutor and he was familiar with the “Grid Kid” case because of the substantial media coverage. Hg. 369, 527. Mr. Kelly knew that because Avitto was in a TADD program, he suffered from serious mental illness and had a drug abuse problem. Hg. 356, 383, 385. He knew that Ms. Swern brought him into the Avitto discussion because of Avitto’s mental health issues and the fact that he was a possible witness on a murder case. Hg. 363. Two days after Mr. Kelly was instructed to help monitor Avitto, he had a telephone meeting with an EAC supervisor after a case manager left him a message expressing “concern” about Avitto, During this call, Mr. Kelly was told directly that Avitto had “turned himself into the DA’s Office with information on a murder case” and that EAC was “concerned” about him because he had tested positive for cocaine and was “using a lot.” He was told that TADD had notified the court and Ms. Swern. and Ms. D’Isselt had discussed the issue. 63One day after Ms. O’Sullivan and Mr. Kelly’s conversation, Ms. D’Isselt and Ryan confronted Avitto about his poor behavior and expressly warned him that Ms. Nicolazzi and Patricia McNeill—Giuca’s prosecutors—would be informed about his non-compliance. Days later, Ms. Swern demanded another Avitto status update from Ms. Nicolazzi. In the four weeks before Avitto testified he was “doing good” in his program, Avitto spiraled downward. He relapsed on cocaine and reported suffering from mania and “racing thoughts.” He absconded from detox, was ordered into rehab and then was thrown out of rehab in less than two weeks for non-compliance. He was violated twice during this period. From September 13 to 19, Ms. Nicolazzi was in regular contact with Ryan about Avitto. Ryan called her after Avitto’s September 6 and 19 court appearances. Ms. Nicolazzi met Avitto in his rehab facility before he was thrown out on September 19. But on September 20, Ms. Nicolazzi contacted Ryan asking him how to locate Avitto, which suggested that contrary to her testimony, she knew the day before that Avitto had been thrown out of Kingsboro when Ryan documented that he told her “what happened” in court. In sum, the People and EAC were aware of Avitto’s serious mental illness and drug problems. Indeed, at least ten prosecutors in the DA’s Office knew that Avitto performed poorly in his program after he had started cooperating against Giuca: 64District Attorney Charles Hynes, Anna-Sigga Nicolazzi, Patricia McNeill, Joshua Hanshaft, Anne Swern, Michael Vecchione, David Kelly, David Heslin, Alisha Akmal, and Taylor Koss (who appeared in court on September 19). Ms. Nicolazzi’s supervisors, including Ken Taub and John Besunder, and others, also might have known.'* Hg. 411-12, 414, 417. Prosecutors and EAC employees monitoring Avitto expressed concern about Avitto because of his status as a witness against Giuca. The People knew the defense made specific demands for Giglio material, including any contained within drug program and psychiatric records. Consequently, the prosecution was required to investigate further and at least review his EAC records to determine whether there was favorable impeachment material which required disclosure in response to the defense’s specific demand. Ms. Nicolazzi’s assertion that Avitto’s right to privacy justified her failure to probe deeper into Avitto’s obvious problems is unconvincing. Avitto was an eager witness who essentially threw himself at her feet in order to help the case against " Giuca. The simple solution would have been for Ms. Nicolazzi to seek a signed HIPAA waiver from Avitto. Ms. Nicolazzi dismissed this as something she was not obligated to do and not the normal practice. Hg. 473-74. On September 26, 2005 an email containing a Daily News article that summarized Avitto’s testimony and referred to him as a “snitch” “who stayed out of jail and in a drug treatment program” was circulated among several high ranking members of the DA's Office. Among the recipients were Mr. Hynes (at three separate email addresses), Amy Feinstein, Dino Amoroso, Mr. Vecchione and Lance Ogiste. 65However, Ms. Nicolazzi knew that Avitto had to waive confidentiality and was willing to do so in order to meet with her and testify against Giuca. On September 13, 2005, Ryan expressly told her that Avitto needed to execute a waiver in order to speak with her. A few days later, Ms. Nicolazzi met Avitto and discussed his upcoming testimony with him. Ms. Nicolazzi’s willingness to exploit Avitto’s mental health history when it helped her case further undermined her testimony that Avitto’s privacy rights were an impediment to disclosure of Avitto’s mental health and drug problems. During her re-direct of Avitto, she deliberately elicited testimony from him that he used Seroquel as a sleeping pill to combat nightmares he suffered because he had been molested as a child. Tr. 812-14. On July 16, 2014, Avitto voluntarily executed a HIPAA release and waived confidentiality which allowed EAC to release to the Conviction Review Unit his “entire file and records from EAC, TASC and TADD programs” including all alcohol, drug and mental health information. During this heavily publicized hearing, Avitto voluntarily testified in excruciating detail about his mental health and drug problems before a courtroom packed with television cameras and other media. In these circumstances, Ms. Nicolazzi’s after-the-fact reliance on Avitto’s right to privacy as a defense for her ‘justifiable ignorance” of the favorable impeachment evidence in Avitto’s EAC records rang hollow. 66If Avitto’s right to privacy was an overriding concern, Ms. Nicolazzi could have avoided using Avitto as a witness. She could have answered the defense demand, sought a protective order, and allowed the trial court to determine any disclosure issues. Instead, she “did the one thing [she] could not do [which] was sit silently by and leave the issue in doubt.” Steadman, 82 N.Y.2d at 8. Ms. Nicolazzi’s purported privacy concem aside, Giuca’s fundamental right to confront Avitto about his possible bias in favor of the prosecution outweighed any possible embarrassment Avitto might have suffered if the full nature of his drug use or psychiatric history was disclosed. Davis v. Alaska, 415 U.S. 308, 320 (1974) (“The state’s policy interest in protecting confidentiality...cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness”). The People shouldn’t have required Giuca “to bear the full burden of vindicating” their apparent concern for Avitto’s right to privacy. Id. It is incomprehensible that despite all of the discussion between and among Ms. Nicolazzi, other prosecutors and EAC employees regarding Avitto’s mental health and drug program problems that she did not obtain and review Avitto’s EAC records in accordance with the specific defense requests for the information. If nothing else, a reasonable prosecutor would have reviewed Avitto’s EAC records in order to thoroughly vet a witness with obvious credibility issues in order to avoid 67exactly what Ms. Nicolazzi did: present perjured testimony that she then falsely argued and bolstered as accurate and credible in her summation. The evidence at the hearing exposed Ms, Nicolazzi’s utter indifference towards gathering and disclosing to the defense information which might have undermined Avitto’s credibility. Her brazen decision to ignore the defense’s specific demands for evidence which, if disclosed, would have obliterated Avitto’s credibility demonstrated that her portrayal of him as honest and forthright was reckless to the extreme. Ms. Nicolazzi’s claim that she “did not keep track” of the court appearances of her key witness—who she knew was mentally ill and a drug addict—was stunning. She later described Avitto as “very honest and open about his problems.” If Ms. Nicolazzi’s lack of interest in Avitto’s problems was true, it smacks of willfully burying her head in the sand in furtherance of her overzealous desire to win. Had Mr. Gregory known about the abundance of favorable impeachment evidence contained in the EAC records, he would have destroyed Avitto’s credibility. Hg. 728-36. In the final analysis, it does not matter whether the People’s Giglio violations were intentional or not. Kyles, 514 U.S. at 436; Wright, 86 N.Y.2d at 598; Steadman, 82 N.Y.2d at 8. The Court does not need to conclude that Ms. Nicolazzi committed misconduct or intentionally withheld favorable impeachment evidence from the defense in order to conclude the prosecution violated Giuca’s right 68to due process. The bottom line is that the prosecution received specific requests for Giglio material that they unjustifiably failed to disclose. C. The Giglio Violations Easily Satisfy the Reasonable Possibility Standard Reversal is required under both the federal “reasonable probability” and state “reasonable possibility” materiality standards. Giuca’s specific demands require application of the reasonable possibility standard, under which the failure to disclose Giglio material is “seldom, if ever” excusable. Vilardi, 76 N.Y.2d at 77. No eyewitnesses or forensic evidence linked Giuca to the crime. Other than Avitto, the evidence of Giuca’s guilt consisted of statements he allegedly made to Cleary and Calciano several hours after the murder. But both had severe credibility problems, including being admitted liars who incriminated Giuca with inconsistent stories only after they were subjected to heavy pressure by law enforcement. Calciano has since recanted her trial testimony under oath. Cleary was not a candid witness. When he testified, he was on felony probation for a vicious assault resulting in his expulsion from Fordham University. On direct examination, he gave a “‘sanitized” version and said only that he had gotten into a fight and people were injured. Tr. 267-68. On cross, after being confronted with the paperwork from his case, Cleary sheepishly admitted that he had kicked a defenseless and unconscious man in the head before beating him with his fists. Tr. 346-48. 69Cleary testified that he repeatedly lied to law enforcement and even his own attorney when he claimed that he knew nothing about Giuca’s role in Fisher’s murder. Tr. 328, 335, 337. Ms. Nicolazzi elicited from Cleary that he took a polygraph examination “on his own,” although the jury never learned that its results flatly contradicted his trial testimony and exonerated Giuca."® Tr. 328. Cleary admitted that he was “squeezed” into cooperating against Giuca by being threatened with a violation of probation and perjury charges if he “lied” (presumably the “truth” meant incriminating Giuca). Tr. 338, 354-55. Calciano was also subjected to substantial pressure by law enforcement before she relented and incriminated Giuca. She claimed that she lied to the police during four separate interviews from October 2003 to October 2004. Tr. 587-88. She acknowledged that at one interview the police claimed she said things at an earlier interview which were not true. Tr. 594, She testified that in October 2003 she and Giuca had trust issues and that she told the police he would never confide in her. Tr. 591-92. After her fourth interview, a more than three-hour meeting at the DA’s Office with several detectives, she still maintained that she knew nothing about Giuca’s alleged role in Fisher’s murder, even after police threatened her pending application with the U.S. Marshals by telling her “if she didn’t do what they wanted ' Te polygraph report concluded that Cleary answered the following questions “without deception”: (1) Q: Regarding the murder of Mark Fisher, do you intend to answer truthfully each question about that? A: Yes. (2) Q: Do you know who murdered Mark Fisher? A: No. (3): Do you know any information about Mark Fisher's murder that you are holding back from the police? A: No. 70her to do, she would never become a U.S. Marshal.” Tr. 597, 599, 661. Calciano finally cooperated after she was subpoenaed and feared perjury charges if she “lied.” Tr. 622-23. After Cleary and Calciano succumbed to the pressure, both testified about the same October 12 conversation with Giuca in his bedroom, but their descriptions of Giuca’s admission inexplicably were inconsistent with each other on virtually every detail. The only point they “agreed” on was that Giuca was home when Russo murdered Fisher—which was entirely at odds with Avitto’s version. In critical testimony regarding Giuca’s alleged motive for ordering Russo to murder Fisher, Cleary said that Giuca complained about Fisher sitting on a table before Tommy Saleh “in a strong voice” ordered Fisher off the table. Tr. 253. Angered by Fisher’s disrespect for his home, Giuca gave Russo a gun and an ordered Russo to “show [Fisher] what’s up.” Tr. 321-22. But this testimony was severely undermined on cross when Cleary admitted that he “recalled” Giuca’s role in the table story during a meeting with prosecutors fewer than 24 hours before he testified. Tr.278. When questioned by Ms. Nicolazzi in the grand jury only nine months earlier, Cleary said that Saleh, not Giuca “had a problem with Mark sitting on the table” before Saleh ordered him off. He described it as a minor incident. Tr. 278; Cleary Grand Jury p. 13. Thus, the jury leaned about a glaring inconsistency in Cleary’s account of Giuca’s purported motive, and 1that prosecutors “helped him remember” the incriminating version during his trial preparation. Calciano’s incompatible description of the same conversation revealed how untenable the case against Giuca was if it relied on her and Cleary. Tr. 319-20 (Cleary described Calciano’s presence); 580, 582-83, 606-10 (Calciano described Cleary’s presence). She specifically refuted Cleary’s testimony that Giuca ordered Russo to harm Fisher. She denied that Giuca told Russo to “show him what’s up.” Giuca never said that he was upset with Fisher or that he disrespected his house. Tr. 607-08. According to Calciano, Giuca said only that Russo wanted to rob “Albert’s friend” before he gave Russo a gun. Tr. 581. Calciano was sure that Giuca’s confession took place in the afternoon “definitely before it was dark out” and before she went about her plans for the day. Tr. 580, 583, 607. Cleary was very specific that Giuca confessed to him and Calciano in the evening. He testified that he spent October 12 with Angel DiPietro” and her father, a criminal defense attomey, at her Long Island home. Cleary and DiPietro didn’t even leave Brooklyn until the afternoon. They ate breakfast at Cleary’s Brooklyn home with his mother sometime after 11:00 a.m. After breakfast, they cleaned his 2 On October 12, 2003, sunset in Brooklyn was at 6:20 p.m. 2" In 2012, formet District Attomey Hynes hired Ms, DiPietro as an assistant district attomey. ngarage before taking a train to Long Island. Tr. 219-21. While in Long Island, Cleary watched football with DiPietro’s father and he stayed for dinner with her family. After dinner, Cleary and DiPietro drove to the Bronx to pick up DiPietro’s boyfriend. On the way back to Brooklyn, they stopped for more food. Later, while they were watching movies at his home, Cleary snuck out of his house to meet Giuca and Calciano. Tr. 293-94; 318-19. Calciano testified that Giuca said Russo and Fisher left Giuca’s home together. Tr. 582. But Cleary detailed that Giuca told them Russo left on his own before Giuca led Fisher out of his home and led him to be ambushed by Russo. Tr. 322. Nothing demonstrated Cleary and Calciano’s dreadful credibility and the prosecution’s need to seek an alternative witness more than the fiasco which resulted from Cleary’s sworn claim that he saw Calciano remove a gun bag from Giuca’s room shortly after the murder. Tr. 331. Calciano vehemently denied this under oath and said Cleary was lying. Tr. 589, 604, 627-28. After Calciano left the witness stand, the prosecution was faced with a crisis: in addition to Cleary and Calciano contradicting each other, there was indisputable evidence that one or both of them committed perjury. Remarkably, Ms. Nicolazzi had questioned both of them about Cleary’s allegation that Calciano tampered with evidence before they testified, which meant Bshe knew in advance that one of her witnesses was going to commit perjury. Tr. 604; Hg. 651-54, When asked at the hearing if she knew that one of them had been untruthful about the removal of evidence before they testified, Ms. Nicolazzi oddly replied “not necessarily, but maybe.” Hg. 652. In summation, she described both witnesses as credible. Tr. 1004-05. Ms. Nicolazzi’s dramatic change of tune from her opening to summation regarding Giuca’s inconsistent statements to Cleary and Calciano evinced how their disastrous testimony created the prosecution’s need for Avitto. In her opening, Ms. Nicolazzi explained that Cleary and Calciano’s different versions resulted from Giuca speaking to them separately.” Giuca “downplayed his role” and “spinned” a tale of robbery to Calciano before he told his “boyhood friend” Cleary the “full story” that he ordered Russo to hurt Fisher because he “had the nerve to sit on his table.” Tr. 32-36. After Cleary and Calciano’s testimony failed to support Ms. Nicolazzi’s opening, she backtracked in summation and described their discrepancies as “natural” and evidence of their “truthfulness.” Tr. 1000. If they had been consistent it would have been “unnatural” and “suspect.” Tr. 1000. She reasoned that Cleary and Calciano were focused on different aspects of Giuca’s statement. Tr. 1000. Ms. ® Ms. Nicolazzi knew that Cleary and Calciano had always alleged they were together when Giuca confessed. Cleary Grand Jury pp. 24-25 (Cleary described Calciano’s presence as he reacted to Giuca’s admission that he gave Russo a ‘gun); Calciano Grand Jury pp. 9-12 (Calciano described Cleary’s reaction as she described Giuca’s admission), 4Nicolazzi argued that Cleary and Calciano said “a lot of the same thing...just in different ways” even if they didn’t “remember all the same details.” Tr. 1001. “The discrepancies, the differences. ..goes to the truthfulness.” Tr. 1002. Anthony Beharry’s pressured (and since recanted) testimony that he disposed ofa gun at Giuca’s request added little to the case against Giuca. Fisher was killed with a .22 caliber pistol, but Beharry claimed only that he disposed of one gun of unknown caliber. Tr. 649.2 Cleary’s testimony that he saw Giuca with two guns shortly before the murder, one of which was a .380 and thus could not have been the murder weapon, diluted the argument that Beharry had the murder weapon, Tr. 464. Ms. Nicolazzi illogically argued (as an unsworn witness) that she “knew” Beharry disposed of the murder weapon even though she offered no explanation for the disposal of a second gun and agreed that “having guns, ladies and gentlemen, doesn’t in any way implicate [Giuca] for the murder of Mark Fisher.” Tr. 994, 1021-22. With this backdrop, Ms. Nicolazzi called her “hedge” witness Avitto at the end of the trial. The People’s trial strategy revealed conflicting concerns about Avitto’s credibility and their lack of confidence in Cleary and Calciano. The People’s failure to provide the defense with any information about Avitto before they called Avitto sandbagged the defense by radically altering the theory of the case ® At trial, outside ofthe presence of Giuca’s jury, the prosecution introduced evidence that Russo implied he disposed ofthe murder weapon himself in a sewer. Tr. 751-53. 15offered in the Bill of Particulars and during the trial without any notice. It also prevented the defense from investigating him and acquiring on its own the favorable impeachment evidence the People suppressed. The mere fact that the prosecution called Avitto to contradict the testimony of Cleary and Calciano in favor of a new theory that Ms. Nicolazzi described as the truthful one established that the suppression of favorable impeachment material which would have severely undercut Avitto’s credibility might have impacted the jury’s decision and thus easily satisfied the Vilardi standard. Indeed, Ms. Nicolazzi herself described Avitto’s testimony as “significant.” Hg. 650. She admitted that after Cleary and Calciano testified, she was “not so comfortable as to be sure what the jury was going to do.” Hg. 638. Avitto’s testimony satisfied her that she “present{ed] the best [and] credible evidence.” Hg. 638. In a move that encapsulated the flawed case against Giuca, Ms. Nicolazzi’s boosting of Avitto’s credibility sabotaged the impact of Cleary and Calciano’s testimony. For the vast majority of the trial, she led the jury to believe that Giuca truthfully confided “the full story” of Fisher’s demise to Cleary. Tr. 33. But after Cleary and Calciano imploded and she was forced to rely on Avitto, she dismissed Giuca’s statements to Cleary (and Calciano) as “partial admissions” which “danced around the truth.” Tr. 1008. Now, Giuca’s “no holds barred” statements to his “confidante” Avitto were the “truthful” ones. Tr. 1008, 1017. 16Ms. Nicolazzi’s argument that Giuca must have been at the crime scene highlighted Avitto’s importance to the jury. She could not have been clearer in urging Giuca’s conviction based on Avitto’s “truthful” and “logical” testimony, which proved his actual participation in Fisher’s robbery and murder. She cited Fisher’s size, strength and condition of his body as concrete proof that Giuca helped Russo rob and kill Fisher: [Avitto] said that once Mark Fisher fell to the ground, that they all punched him and kicked him and that makes sense by what Detective Gaynor saw when he turned Mark Fisher over as he lay on the ground soon after that, again. Another detail, ladies and gentlemen that John Avitto would have no way to know on his own, have no way to know would be corroborated by the undisputable physical evidence in this case if it was not exactly what [Giuca] told him and it doesn’t even make sense if you think about it that Russo could have done all of this alone. Mark was 6 foot 5. How did Russo hold the gun, demand money and go through Mark’s pocket to get that money, beat him, his face, his body, all at the same time? It makes much more sense just like Giuca admitted to Avitto that there was more than one person. He said there were three...More evidence, ladies and gentlemen, that Giuca was being truthful when [he told] Avitto he was present... Tr. 1016-17. Ms. Nicolazzi’s emphasis that Avitto was the witness to whom Giuca truthfully confessed and the only witness who accurately described Fisher's murder 7made the jailhouse informant’s credibility the determinative issue for the jury. If the jury credited Avitto, they would have to find Giuca guilty. However, Ms. Nicolazzi’s suppression of substantial Giglio material enabled her to mislead the jury with impunity about Avitto’s credibility, which severely distorted the jury’s impression of him. Ms. Nicolazzi favorably distinguished Avitto’s sincere motive from the other witnesses who incriminated Giuca. Cleary, Calciano and Beharry were all liars strong-armed into cooperating under threat of criminal prosecution. Avitto, however, had no ulterior motive because he was guided by his conscience “for once to do something right” by volunteering the truth about a terrible crime. Tr. 1022. Ms. Nicolazzi bolstered Avitto’s forthrightness with the breathtakingly false claim that the reformed criminal and recovering drug addict was “very honest and open about his problems and criminal past.” Tr. 1011. She knowingly and inaccurately implied that Avitto’s success in his drug program was proof that his cooperation was unrelated to his own case, which meant that he lacked a motive to seek a benefit in exchange for his testimony. Tr. 1022. Ms. Nicolazzi assured the jury there was “absolutely no evidence” or “corroboration” that Avitto sought or received consideration in exchange for his truthful testimony. Tr. 1020-23. His release without bail after a few violations was Bnot evidence that he received a benefit; it was proof that the court credited his “responsible” behavior. Tr. 1021. Ms. Nicolazzi’s suppression of favorable impeachment evidence crippled the defense’s ability to attack Avitto’s portrayal as an earnest witness with nothing to gain from his cooperation. Because Avitto was virtually unimpeached the jury had little reason to doubt that his motive and mental stability were exactly as Ms. Nicolazzi said they were. She never could have ridiculed the defense attacks on Avitto’s credibility if Mr. Gregory possessed evidence that Avitto admitted he heard voices, saw snakes, lied in order to help himself, and that Ms. Nicolazzi participated directly in the events which led to his release three times because of his cooperation against Giuca. Moreover, if the jury knew about the misleading manner in which Ms. Nicolazzi elicited testimony from Avitto, it would have been more likely to discredit her unsworn testimony and pervasive vouching for Avitto’s credibility. More than a decade into Giuca’s life sentence, we now know that evidence suppressed by the prosecution has exposed Ms. Nicolazzi’s vigorous defense of the credibility of the most important witness against Giuca as unequivocally false. Had she complied with her Giglio obligations and disclosed this evidence, there was more than a reasonable possibility the result of the trial would have been different. The prosecution's heavy reliance on Avitto confirms this. See People v. Hardy, 4N.Y.3d 192, 199 (2005) (“the People’s heavy reliance [on the error] creates 79a reasonable possibility that its admission and subsequent exploitation by the prosecutor contributed to the verdict”); People v. Harris, 93 A.D.3d 58, 74 (2 Dept. 2012) (murder conviction reversed and reasonable possibility standard met where prosecutor directed jury to consider the improper evidence that “supports the testimony of other witnesses whose credibility was questionable”); People v. Richardson, 137 A.D.2d 105 (3" Dept. 1988) (“in view of...the prosecutor’s extensive reference to the improperly admitted portions in his summation, the error cannot be considered harmless”); see also, Wood v. Ercole, 644 F.3d 83 (2™ Cir. 2011) (“where guilt rests on witness credibility, key evidence affecting credibility is not merely corroborative or cumulative”); People v. Jones, 47 N.Y.2d 528 (1979). POINT IT THE DOCUMENTARY AND TESTIMONIAL EVIDENCE INTRODUCED AT THE HEARING ESTABLISHES THAT THE PROSECUTION KNEW OR SHOULD HAVE KNOWN THAT AVITTO TESTIFIED INACCURATELY AND THE PROSECUTION VOUCHED FOR ITS ACCURACY RATHER THAN CORRECT IT A prosecutor's duty to deal fairly with the accused and be candid with the courts requires that she correct the knowingly false or misleading testimony of a witness. People v. Colon, 13 N.Y.3d 343, 349 (2009); People v. Novoa, 70 N.Y.2d 490, 497 (1987). “Where a prosecutor elicits or fails to correct such inaccurate testimony, reversal and a new trial are required unless there is no reasonable possibility that the error contributed to the conviction.” Colon, 13 N.Y.3d at 349; 80People v. Pressley, 91 N.Y.2d 825, 827 (1997). A prosecutor must be vigilant and avoid “exacerbating” the prejudice to a defendant by “repeating and emphasizing misinformation in summation.” Colon, 13 N.Y.3d at 349-50. If a prosecutor knowingly elicited inaccurate testimony reversal is “virtually automatic.” United States v. Wallach, 935 F.2d 445, 456 (2™ Cir. 1991). If the prosecutor lacked actual knowledge of the inaccurate testimony, but should have known, she still is obligated to correct it. People v. Witkowski, 19 N.Y.2d 839 (1967). At trial, Avitto testified falsely about his serious and persistent mental illness. He feigned ignorance about the symptoms of his mental illness. He lied about his use of Seroquel, an anti-psychotic which is commonly prescribed for serious mental illness. On direct, Ms. Nicolazzi elicited from Avitto that he was on “various medications.” Tr. 785. On cross, Avitto was questioned in detail about mental illness and his Seroquel use: Q: And it would be fair to say that what Seroquel is, is a medication that combats schizophrenia, right? A: — Correct. Q: Mental disorders marked by delusions, hallucinations, disruptive thinking and loss of contact with reality? A: — I don’t know all those. 81Q@ ond Tr. 805-07. Rather than correct this false testimony, Ms. Nicolazzi bolstered it on re-direct, eliciting from Avitto that he needed Seroquel to help him sleep because he That’s the medication you take to control your hallucinations and delusions? Ifyou ask any physician, any doctor, what Seroquel is also used for, they will tell you it’s for sleep. Let me ask you, do you take this because you have delusions, hallucinations? No. And lose contact with reality? Nope. [And you’re given] Seroquel for— Sleep. had been sexually abused as a child. Tr. 813-14. Avitto’s EAC records conclusively prove that he lied about his mental health history and his Seroquel use. In October 2004, shortly after he was arrested, Avitto was diagnosed by Rikers medical staff with a mood disorder and prescribed Seroquel. He told doctors that his mind was “controlled by forces beyond his control” and that “thoughts which were not his own” were put in his head. He 82warned doctors that he was going to follow the “voices in his head” and commit suicide, as he had tried to do three times before. In March 2005, EAC documented that Avitto had been prescribed Seroquel “for treatment of a mood disorder.” In July 2005, Avitto told doctors that he took Seroquel for treatment of depression and anxiety. He again described his history of auditory and visual hallucinations, including a recent one where he “saw a snake.” Doctors noted his “limited insight,” “impaired judgment,” “fair concentration and focus” and a “high level of distractibility.” He was diagnosed with bipolar disorder and post-traumatic stress disorder, and he was prescribed more Seroquel. In August 2005, Avitto was prescribed more Seroquel after he reported experiencing symptoms of mania and “racing thoughts.” Ms. Nicolazzi acknowledged that she was obligated to correct any inaccurate testimony. Hg. 438-39. Yet even with awareness of the contents Avitto’s psychiatric records, she maintained that she believed Avitto testified truthfully about everything at trial. Hg. 464. Even if the Court credited this absurd testimony, Ms. Nicolazzi should have known that Avitto lied about his mental health history. As described earlier, she and Avitto spoke at length about his mental health history. She knew that he used Seroquel and that its principal purpose was for treatment of serious mental illness. Hg. 472. She knew that he was in TADD and MICA mental health programs. Hg. 471, 534. Despite all of these warning signs, Ms. Nicolazzi simply 83credited Avitto’s denials of a mental health history and that he took medication designed to combat hallucinations and delusions as a sleeping pill. A reasonable prosecutor would have investigated Avitto carefully before blindly presenting testimony about his mental health which turned out to be blatantly false. Avitto lied about his purported success in the drug program he claimed he had been “sentenced” to in connection with his February 2005 guilty plea. Tr. 768, 778- 79. On cross, Avitto admitted that, in fact, his sentence was conditional and included a lengthy prison altemative if he violated his program. Tr. 786-87. His misleading testimony that he was succeeding in his drug program supported the prosecution argument that he lacked a motive to seek a benefit in exchange for offering to cooperate against Giuca. If Avitto had no reason to curry favor with the prosecution, then issues related to his own case could not have influenced his decision to testify favorably for the prosecution. On direct, Ms. Nicolazzi elicited from Avitto: Q: And how are you doing with your drug addiction today? A: I’m doing real well. Q: And how have you been doing in the program or programs that you have been in since being released on the last case? A: I’m doing good. * * * 84Q: Were you ever given anything or promised anything in exchange for your testimony? Did you ever ask for anything? A: No. Tr. 784-86. On cross, Avitto re-affirmed this testimony: Q: Now, you testified on direct examination that things are going well for you in this program, right? A: Correct. Tr. 797. Ms. Nicolazzi and other prosecutors knew or should have known this testimony was misleading. His frequent compliance problems resulted in high-level discussions between the DA’s Office (including Ms. Nicolazzi) and EAC. A few weeks before he testified, Avitto relapsed, was ordered into a detox facility, and absconded within days. As a result, he was violated and ordered into a rehab facility, where in less than two weeks and just three days before he testified, he was kicked out for non-compliance of facility rules, and violated again. Ms. Nicolazzi knew about Avitto’s frequent non-compliance; she appeared at one court appearance and was notified by Ryan about the others. She and Ryan spoke regularly in the days leading up to Avitto’s testimony, when Avitto was ordered into and then kicked out of rehab. 85Ms. Nicolazzi conceded at the hearing that Avitto “definitely screwed up” in his program. Hg. 579-80. Nevertheless, she weakly defended the accuracy of Avitto’s testimony that he was “doing good” because he called Ryan after some of his violations which “kind of at least gives a glimmer of hope that he would beat his addiction.” Hg. 580. This tortured reasoning only proved the misleading nature of her question and Avitto’s answer. Ms. Nicolazzi further misled the jury by concealing that Avitto contacted the police seeking to cooperate against Giuca the same evening that he left his program and just days before Ms. Nicolazzi appeared on his behalf in court: Q: Now, Mr. Avitto, did you first speak with the police or were you first interviewed sometime back in June of 2005? A: Yes, I was. Tr. 785. On cross, after Avitto admitted that he left his program on June 9, Mr. Gregory unsuccessfully sought to link the timing between his call to the police and the program violation which triggered a possible prison sentence. Avitto lied: Q: Did you contact [the police] immediately after you left this program and you were facing three and a half to seven years, sir? Yes or no? A: No. 86Tr. 810. On re-direct, Ms. Nicolazzi, in a lengthy leading question, re-affirmed Avitto’s claim that the timing of his cooperation had nothing to do with his own case: Q: Just lastly, you were asked questions about, well, when you reached out to the police, that was because you'd left the program and you said no. At the time that you were first interviewed and you spoke with the police about this case, had it already been months since you had taken that disposition about the drug program? A: — Correct. Tr. 814. Ms. Nicolazzi’s crafty questioning that Avitto called the police “sometime” in June and that there was no relationship between his case and decision to cooperate was misleading. She buried the significance of June 9 as the day Avitto left his program and volunteered to cooperate against Giuca under the cover that he decided to cooperate “sometime” in June, rather than correct Avitto’s false testimony that he did not “immediately” call the police after he left his program. Not only did Avitto’s EAC records prove that Avitto left his program at 5:25 p.m. on June 9, they established that Ms. Nicolazzi told Ryan before court on June 13 that Avitto “contacted detectives on Thursday June 9 stating he had information” on an open murder case. 87Avitto further clouded the truth surrounding his June 9 violation and its impact on his decision to cooperate by lying about the timing of his June cocaine use. If the jury knew that on June 9 Avitto absconded from his program, used cocaine, and called police, and then used cocaine again while a fugitive, the day before he met Ms. Nicolazzi, the jury likely would have concluded that there was more to Avitto’s June 9 violation and June 13 return to court than he revealed. However, on cross Avitto denied using cocaine between June 9 and 13: Q: But, you left the program, right? A: That’s right. Q: And it would be fair to say you’re out in the street again, correct? A: — Correct. Q And it would be fair to say you're using cocaine again, correct? A: No, I wasn’t. Are you sure about that, sir? You’re under oath, sir Yeah, I wasn’t using cocaine when I left the program. Q_ Did you use drugs that time, or didn’t you? You're under oath here. Did you or didn’t you? 88A: I didn’t use drugs by the time I went to court. I did cocaine after I went to court. Tr. 799-801. This testimony was patently false, as a detailed June 15 progress note from Avitto’s EAC records confirmed: [Avitto] tested positive for cocaine and then repeatedly denied using cocaine—claiming that he got a Novocain shot at the dentist’s office yesterday. This writer [Leila Percival] confronted Avitto with his inconsistent accounts. ‘This writer then requested supervisor [Ruth] O’Sullivan and Sean Ryan meet with this writer and Avitto. Avitto ultimately admitted to using cocaine on 6/9 and 6/12. Avitto’s consistently inaccurate testimony regarding the circumstances surrounding his cooperation against Giuca culminated in his deceptive description of the June 13 court appearance. On cross, Avitto admitted that he left his program on June 9 and returned to court on June 13. Hg. 800. On re-direct, Ms. Nicolazzi elicited extremely misleading testimony from him in order to rehabilitate any damage caused by this testimony: Q: You were asked on cross examination about the different times that you had left the program, about the fact that you were never sent back in or violated to get the sentence that you know you can get if you don’t do well in the program. I don’t know how many years it is. So, I’m asking about that series of questions. A: — Right. 89Q: The first time you left the program, did they have to come find you, or did you contact your counselor on your own after you left? ‘A: [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 this judge (indicating to Justice Marrus)? A: — Not this judge (indicating to Justice Marrus). The judge of my case and I guess Sean Ryan had a talk and he got me another shot. Tr. 812 (emphasis added). Ms. Nicolazzi limited Avitto to a false choice between stating (1) he had been picked up on a warrant or (2) he called Ryan on his own. Avitto responded to Ms. Nicolazzi’s cue” and described his return to court as nothing more than contacting Ryan and walking to court with him, where an anonymous “DA” stood idly as Ryan “got him another shot.”?5 Avitto’s response to Ms. Nicolazzi’s artful questioning omitted reference to the following events that occurred after he “first left the program” and before he was released on June 13: ¢ He absconded from his program and used cocaine, which he knew violated his program and triggered a possible prison sentence. That same evening, he called > At the hearing, the Court expressed concern that Avitto was susceptible to leading questions. Hg, 88-89. 25 Ryan's notes clearly indicated that it was Ms. Nicolazzi who spoke a the bench, 90the police seeking to cooperate against Giuca with months-old information. On June 13, he met Ms. Nicolazzi and volunteered incriminating evidence against Giuca. Immediately after this meeting, Ms. Nicolazzi escorted Avitto to court. On the way to court, she told Avitto that she would inform the court and his case manager that he had provided information to her about an open murder case. Ms. Nicolazzi appeared on Avitto’s case, approached the bench and informed the court that he provided her with information on a murder case before Judge Parker released Avitto without bail. Ms. Nicolazzi’s interest in portraying Avitto’s “responsible” behavior did not give her the right to elicit inaccurate testimony and stand mute while Avitto misled the jury by concealing critical evidence which contradicted her theory. Unknown to the jury, Ms. Nicolazzi was an actual witness to events that occurred only three months before she questioned Avitto about them. There was no reasonable explanation for her conduct other than she deliberately sought to suppress evidence about the true circumstances surrounding Avitto’s cooperation, including her prominent role in them. The timing and the motive for Avitto’s cooperation were important trial issues. Ms. Nicolazzi’s assertion that she was not obligated to correct “accurate” testimony she elicited which concealed evidence of Avitto’s cooperation and entirely o1whitewashed her own presence from the June 13 appearance in favor of a nameless prosecutor shocks the conscience.> Hg. 666-67. Any doubt that the point of her exercise was to give the jury the false impression that Avitto’s release was entirely unrelated to the Fisher case was quickly eliminated when in her following question Ms. Nicolazzi reiterated that Justice Marrus was uninvolved in Avitto’s release.?” In Jenkins v. Artuz, 294 F.3d 284 (2™ Cir. 2002), the Second Circuit reversed a state murder conviction and strongly condemned similar gamesmanship regarding “accurate” testimony. There, the trial prosecutor knew that a witness had entered into an oral plea agreement with a different prosecutor in exchange for testifying against Jenkins. On cross, the witness denied the existence of a plea deal, which the prosecutor let stand uncorrected. On re-direct, the prosecutor craftily asked the witness whether he had ever made any deals with her. He “accurately” denied that there was an agreement between himself and the trial prosecutor. 294 F.3d at 294, The court held that the prosecutor deliberately misled the jury and failed to correct the false impression that the witness had not received consideration. Her % Ms, Nicolazzi acknowledged she would have been obligated to disclose her identity if Avitto had been asked about it and it was “somehow suppressed” or “hidden.” Hg. 686. This answer was a distinction without a difference. Ms, ‘Nicolazz's question was designed to steer Avitto away from mentioning his cooperation with her and towards his contact with Sean Ryan. This is exactly the type of unconstitutional gamesmanship that the Court should strongly ‘condemn. In fact, Ms. Nicolazzi’s actions were so misleading it would have been appropriate for counsel to seek her swom testimony had he known about her involvement in Avitto’s June 13 release, See People v. Paperno, 54 N.Y.2d 294 (1981) (where defense makes significant showing that tral prosecutor's pre-trial conduct is material trial issue, prosecutor might be witness and should be recused). ® When questioned why she did not clarify that she was “the DA” but did emphasize that Justice Marrus was not the Judge on June 13, Ms. Nicolazzi incoherently explained “I didn’t give a follow up question at the same question because I couldn't—because it was me, but I could ask him specifically since he said the judge, that it wasn’t the judge ‘that was presiding over the tril That is why I did that.” Hg. 668, 92questions on re-direct “while eliciting technically accurate testimony, were phrased so as to reinforce the false impression...” /d. The court noted that the “probably true but surely misleading” testimony left the jury with a mistaken impression. Id. The Second Circuit’s criticism is applicable to Avitto’s testimony, which surely gave the jury the false impression that Ms. Nicolazzi had no involvement in the June 13 proceeding and that the Fisher case had no relevance it: That a statement standing alone is factually correct obviously does not mean that it cannot mislead based on the natural and reasonable inferences it invites. [The ADA’s] attempt to hide [the witness’] plea agreement from the jury and to use the false impression of its absence to bolster his credibility leaves us with no doubt that her behavior violated Jenkins’s due process rights. Id. Ms. Nicolazzi did not correct any of Avitto’s false or misleading testimony. Hg. 552. Instead, she parroted it and vouched for his truthfulness in summation. In doing so, she “compounded these errors by repeating and emphasizing the misinformation during summation” which “exacerbated” the prejudice. Colon, 13 N.Y.3d at 349-50; see also, Jenkins, 294 F.3d at 294 (prosecutor’s summation which bolstered inaccurate testimony “sharpened the prejudice” to the defendant). Despite overwhelming evidence that Avitto repeatedly distorted the truth, Ms. Nicolazzi told the jury “you know everything John Avitto told you is credible.” Tr. 1010. She cited Avitto’s candor, accuracy and careful attention to detail in 93describing Giuca’s admission to him as assurance that Avitto was “truthful and [the jury] could trust him.” Tr. 1010. Even though Avitto perjured himself regarding his mental health history and his EAC records confirmed that he lied both before and after he started speaking to the prosecution about Giuca in order to help himself, Ms. Nicolazzi inaccurately vouched for his forthrightness and integrity: John Avitto, ladies and gentlemen, 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 as a witness... Tr. 1011. Ms. Nicolazzi relied upon Avitto’s misleading testimony to advance her false premise that the responsible Avitto was motivated to testify against Giuca by his sense of moral duty rather than his own self-interest: Now [the] defense has suggested with respect to John Avitto well, he’s making this up and willing to say anything because he’s trying to help himself and he’s getting some sort of deal. First of all, there is no evidence of that, just like there is almost no evidence at all of almost anything Mr. Gregory told you. However, first of all, you know from Avitto’s testimony on cross that every time Avitto had a problem with drug use or with his program and he told you he did leave on his own, that is was he, who contacted his counselor right away and said I [relapsed] or I left the program. * * *Tr. 1020-23. «alts there for you to see in black and white and John Avitto told you that he called his counselor on his own, so [its] not surprising this man with a long history, years and years of drug addiction and problems that you know was caused by the unfortunate abuse he suffered as a child, it’s not surprising that a judge would choose to give him multiple chances when he was showing himself to still be acting responsibly... * * * You know from his testimony that John Avitto had plead guilty months before he ever contacted the police And if the judge decided he ultimately failed that program that he was facing the amount of time, he said was three and a half to something, maybe seven years, so to believe the defense, the DA is in on it, the police are in on it, and even the judge is in on it but that makes absolutely no sense and is not corroborated. There is absolutely no evidence, no evidence at all... [Avitto] came to the police with this information on his own. This is a man who has made mistakes over and overall his life. And for once, he tried to do something right and for that Mr. Gregory wants you to condemn him * * * Now, during his summation, Mr. Gregory, ladies and gentlemen, can be as loud and as dramatic as he wants to be with all the wild speculation he threw out before you; that was based on no evidence that is anywhere in the record, no evidence to corroborate anything that he said to you, so ladies and gentlemen, even if you scream and yell, it [doesn’t] make it so. 95The prejudice Avitto’s false and misleading testimony and Ms. Nicolazzi’s inaccurate argument caused Giuca was incalculable. Ms. Nicolazzi portrayed Avitto as a mentally stable, honest, forthright and responsible man of conscience succeeding in drug treatment, when the opposite was actually true: he was a mentally ill opportunist performing poorly in his drug program and someone who lied at will in order to improve his circumstances. Ms. Nicolazzi misled the jury about Avitto’s atrocious performance in his drug program, which minimized the jury’s knowledge of Avitto’s motive to seek a benefit from the prosecution in exchange for his testimony. She exploited Avitto’s testimony and gave the jury the false impression that the only reason Avitto was released was because he self-reported his violations to Ryan. But she knew this was not true. She used Avitto’s misleading testimony and scrubbed the truth about the events between June 9 and 13, including her own prominent role in securing Avitto’s release after he started sharing information about Giuca. Notwithstanding her incredible denials of knowledge about the circumstances surrounding Avitto’s September 6 and 19 court appearances, Ms. Nicolazzi must have known, and in any event should have known, that Avitto was released because of his willingness to cooperate against Giuca, not because the court credited him for being responsible. Indeed, on September 19, the court criticized Avitto for being irresponsible. 96Ms. Nicolazzi’s disparagement of the defense argument that Avitto received a benefit as little more than speculation that required belief in an outlandish conspiracy between the DA, police and court was misleading and beyond the pale in light of the fact that she and Avitto secreted her presence from the significant events of June 13. Finally, Ms. Nicolazzi’s criticism of Giuca’s trial counsel for wildly speculating about Avitto’s motive for cooperating for which she claimed there was “absolutely no evidence” or “corroboration” was extremely prejudicial because it improperly suggested that critical evidence did not exist when in fact it did, but it was suppressed by the prosecution. Davis, 415 U.S. at 318; Taylor, 26 N.Y.3d at 227. A prosecutor’s misleading presentation of evidence or one that gives the jury a “false impression” violates due process. People v. Vielman, 31 A.D.3d 674 (2nd Dept. 2006) (conviction reversed where prosecutor knew her argument rested on a “false premise” and was a “blatant attempt to mislead the jury”); People v. Cotton, 242 A.D.2d 638, 639 (2nd Dept. 1997) (the “blatant misrepresentation of the facts as known to the prosecutor” required reversal. The defendant was prejudiced severely because the misrepresentation was “closely related to the credibility issue”). Ultimately it does not matter whether Ms. Nicolazzi intended to elicit false or misleading testimony or whether she deliberately misled the jury by vouching for 97Avitto’s inaccurate testimony. The point is that Avitto, a significant witness against Giuca, testified inaccurately on material matters, which misled the jury and severely prejudiced Giuca. Steadman, 82 N.Y.2d at 8 (“it does not matter whether the trial assistant was generally aware...or not. A prosecutor [has an] obligation to correct false testimony given by prosecution witnesses...”); People v. Conan, 146 A.D.2d 319 (1% Dept. 1989) (reversal where prosecutor “whether unwittingly or not, misled the jury by allowing [the witness] to testify untruthfully”); People v. Wallert, 98 A.D.2d 47 (1% Dept. 1983) (reversal where prosecutor “argued that which wasn’t”); Jenkins, 294 F.3d at 293-94 (reversal of murder conviction where prosecutor’s summation “placed [the People’s] credibility behind untruthful testimony”). In sum, Ms. Nicolazzi’s portrayal of Avitto as a mentally stable, honest and credible man without a motive to seek a benefit was built upon his inaccurate testimony and a combination of undisclosed and misleading circumstances which deprived the jury from making a full and fair assessment of his credibility. In these circumstances, reversal is “virtually automatic.” Wallach, 935 F.2d at 456; Colon, 13 N.Y.3d at 349-50; Vielman, 31 A.D.3d at 675. 98POINT Ii THE EVIDENCE AT THE HEARING ESTABLISHES THAT THE PEOPLE VIOLATED THE ROSARIO RULE IN CONNECTION WITH AVITTO’S SEPTEMBER 19, 2005 COURT APPEARANCE The Rosario rule requires that the People disclose to the defense any written or recorded statement made by a witness that relates to the subject matter of the witness’ testimony. C.P.L. § 240.45. Reversal is analyzed under the reasonable possibility standard, which is “perhaps the most demanding test yet formulated” for harmless error review. C.P.L. § 240.75; People v. Machado, 90 N.Y.2d 187, 193 (1997). In People v. Grissom, 128 Misc.2d 246, 248 (N.Y. Cty. Crim. Ct. 1985), then Criminal Court Judge Marrus held that if the defense was unaware of the existence of a prior transcript, the party calling the witness was obligated to provide it to the opposing party. See also, Opening Memorandum of Law, March 26, 2015, pp. 25- 29. Both the September 19, 2005, transcript and violation letter constituted Rosario material. In the transcript, Avitto admitted that he violated his program and he cited the stress associated with his upcoming testimony against Giuca later that week as an excuse. The violation letter prepared for the court also documented Avitto’s admission. At trial, Avitto testified about his performance in the drug program and his decision to testify against Giuca. 99The People were represented at Avitto’s September 19 appearance by former ADA Taylor Koss. Before court, Sean Ryan left a message for Ms. Nicolazzi advising her about it. After the appearance, Ryan told Ms. Nicolazzi “what happened” in court. Ms. Nicolazzi and Ryan spoke the following day. The People received copies of EAC violation letters. Hg. 365. Ms. Nicolazzi admitted that she did not notify the defense about Avitto’s September 19 violation or about the existence of a transcript, even claiming that she “never kept track of his court dates.” Hg. 450, 572. Mr. Gregory confirmed that he did not receive any Avitto-related Rosario material from the prosecution. Hg. 719-20. He did not cross Avitto about the violation or court appearance, although “there was a good chance” he would have if he knew about them. Hg. 734. The defense lacked “equal access” to the transcript of a mid-trial and unscheduled court appearance for a prosecution witness whom the People did not share information about. In these circumstances, it would have been unreasonable to expect the defense to scavenge for undisclosed Rosario material in the middle of trial, especially because the People represented before trial, the day before Avitto testified, and at the charge conference that there was no Avitto-related Giglio or Rosario material. See Banks v. Dretke, 540 U.S. 668 (2004); Strickler v. Greene, 527 USS. 289 (1999); People v. Qualls, 70 N.Y.2d 863 (1987). 100Under the reasonable possibility standard reversal is required. In addition to constituting Rosario material, the September 19 evidence also was favorable impeachment evidence under Giglio. If the defense had use of the transcript and letter it easily could have proven that Avitto lied about his performance in the drug program and when “caught” he immediately leveraged his cooperation against Giuca to stay out of jail. Combined with the use of other favorable impeachment material in the EAC records, if the defense had the transcript and letter it could have eviscerated Avitto’s false testimony by proving the following about September 19: « Avitto had been thrown out of his rehab facility fewer than two weeks after he had been ordered there by the court and only three days before he testified he was “doing good” in his program. e Ryan told the court at a bench conference that he contacted Ms. Nicolazzi regarding the violation before the court told him it would release Avitto because he was testifying in a murder case. * In open court, Avitto was reprimanded for his poor behavior. © Avitto admitted the violation but quickly told the court—on the record—that he was testifying that week in a murder case. © The court told Avitto “apparently we're going to give you another opportunity” before it released him (emphasis added). 101Accordingly, disclosure of this important Rosario material, especially considered cumulatively with the other suppressed impeachment evidence would have “added a little more doubt” and might have resulted in a more favorable outcome for Giuca at trial. Kyles, 514 U.S. at 436-437; Negron, 26 N.Y.3d at 270; Vilardi, 76 N.Y.2d at 76-77. POINT IV AVITTO’S EAC RECORDS CONSTITUTE NEWLY DISCOVERED EVIDENCE WHICH IF KNOWN TO THE TRIAL DEFENSE LIKELY WOULD HAVE RESULTED IN A VERDICT MORE FAVORABLE TO GIUCA Giuca respectfully requests that the Court exercise its discretion under C.P.L. § 440.10(1)(g) and determine the merits of a newly discovered evidence claim regarding the contents of Avitto’s EAC records. The defense first learned about the existence of the records and the contents therein when it received these 2004 and 2005 records from the People on October 19, 2015. Current counsel made three specific Giglio demands which encompassed production of these records from April 2014 to May 2015. The evidence at the hearing has shown that these records would serve as the basis for an additional C.P.L. § 440.10 motion. Because the subject matter of a potential newly discovered evidence motion was covered during the current hearing and it is closely related to Giuca’s other claims, the Court should consider this claim now. If the Court deems 102it necessary, the defense will file an additional motion and request that both motions be consolidated for decision. ‘Among other things, the newly discovered EAC records unequivocally prove that Avitto perjured himself at trial about his extensive mental health history and treatment. The records also proved that Ms. Nicolazzi’s summation was riddled with false argument about Avitto’s credibility which she never would have made if the defense knew the truth about Avitto’s mental health history at trial. The Court should not shut its eyes to the fact that these records destroy any legitimacy the verdict against Giuca ever had. A court has the discretion to vacate a conviction based upon newly discovered evidence where such evidence (1) will probably change the result if a new trial was granted, (2) has been discovered since trial, (3) could not be discovered before trial by the exercise of due diligence, (4) was material, (5) is not cumulative and (6) must not be merely impeaching or contradicting the former evidence. People v. Tankleff, 49 A.D.3d 160 (2™ Dept. 2007). Factors two through five above are not in dispute. As detailed earlier and in our prior submissions, if Avitto had been properly discredited, it would have changed the result. The EAC records, if available to the defense at trial, would have exposed Avitto, who the prosecution anchored its entire case to in summation after Cleary and Calciano were severely discredited, as an unreliable witness. It would have raised substantial questions about Avitto’s ability 103to recall and perceive at the time he claimed he “heard things” about Giuca and also when he reported the information to the prosecution months later. The psychiatric records were not “merely” impeaching. Avitto’s reported history of auditory and visual hallucinations and mind control related directly to his fitness as a witness and his ability to perceive and recall. In addition, when the conviction relies substantially on a witness, any new evidence which demonstrates his inherent unreliability is not merely impeachment evidence. People v. Jackson, 29 A.D.3d 328 (1* Dept. 2006); People v. Walker, 116 A.D.2d 948 (3" Dept. 1986); People v. Ramos, 132 Misc.2d 609 (Kings Cty. Sup. Ct. 1985); People v. Marzed, 161 Misc.2d 309 (N.Y. Cty. Crim. Ct. 1993). Non-disclosure of psychiatric records which demonstrated a history of serious mental illness by a critical prosecution witness warrants vacatur on newly discovered evidence grounds. People v. Collins, 250 A.D.2d 379 (1° Dept. 1998); People v. Dozier, 163 A.D.2d 220 (1* Dept. 1990) (described in detail in Dozier v. State, 134 A.D.2d 759 (3 Dept. 1987)); People v. Maynard, 80 Misc.2d 279 (N.Y. Cty. Sup. Ct. 1974), Maynard is directly on point. There, the witness, Febles, was strikingly similar to Avitto. One of three eyewitnesses to a murder, he had an extensive psychiatric history, including hospitalization years before the murder, which he hid from the prosecution at trial. Like Avitto, Febles presented himself at trial as an 104ordinary witness without any obvious psychiatric issues. His testimony went relatively unimpeached. 80 Misc.2d at 288. After trial, evidence of his true psychiatric history was discovered. The court reversed Maynard’s conviction on newly discovered evidence grounds, rejecting the prosecution’s argument that his psychiatric history was merely impeachment evidence because evidence of Febles’ psychiatric history related to the “longstanding and ongoing mental condition of a major eyewitness...This [condition] raises the question of accurateness, perception, truthfulness and susceptibility to suggestion of Febles as a witness.” Id. at 288. The same concerns applied to Avitto. His psychiatric records revealed a history of serious and persistent mental illness before and after he started cooperating, with the prosecution in June 2005. Evidence that he experienced auditory and visual hallucinations, delusions, mind control, as well as problems with his memory, judgment, concentration and insight problems, would have been critical to the jury’s assessment on whether Avitto’s ability to perceive and relate was adversely impacted. This was especially true where he denied a history of mental illness and the newly discovered evidence revealed that he suffered from these symptoms both before and after he claimed that he “overheard” Giuca make admissions in jail. 105POINT V DOCUMENTARY EVIDENCE INTRODUCED AT THE HEARING ESTABLISHES THAT GIUCA WAS PROVIDED INACCURATE EVIDENCE THAT PREJUDICED THE DEFENSE’S ABILITY TO CROSS EXAMINE AVITTO C.P.L. § 440.10(1)(b) warrants vacatur where the defense is provided misrepresented or fraudulent evidence by a person “acting for or behalf of a court or a prosecutor.” Reversal is proper even where the prosecution is not involved in, and is unaware of, the presentation of the inaccurate evidence. People v. Seeber, 94 A.D.3d 1335, 1337 (3" Dept. 2012). Thus, the issue is whether a defendant was provided misleading evidence, not the prosecution’s role in the creation or dissemination of the misleading evidence. Jd. The evidence introduced at the hearing established that a violation letter, dated September 20, 2005, was not accurate evidence. This letter purported to describe a recent history of Avitto’s progress in his program two days before he testified against Giuca. The letter reported that he did not enter Seafield Rehab as scheduled in late August, he had not been in contact with EAC, and “his whereabouts are unknown.” The letter was inaccurate and gave a misleading portrayal of Avitto’s actual history from late August to September 19. The letter did not refer to Avitto’s early September violation which resulted in his appearance in front of Judge Parker, where he was released because of his cooperation with the prosecution. It did not refer to 106his brief attendance at Kingsboro Rehab from September 7 to September 19, when he was thrown out for non-compliance. It did not report to his September 19 violation and court appearance, where he again was released because of his upcoming testimony against Giuca. Thus, the September 20 letter, for whatever reason, was riddled with misleading information that omitted the existence of substantial impeachment evidence.”* The inaccurate letter was provided to the defense, and to Giuca’s detriment, Mr. Gregory unwittingly relied on it during his cross of Avitto. Trial counsel scrolled through Avitto’s court appearances after he became a cooperating witness but stopped before September 19. He never crossed Avitto about being thrown out of Kingsboro, which resulted in the September 19 court appearance. He never attacked Avitto’s patently false September 22 testimony that he was doing “good” in his program, which he likely would have done if he knew about them. Hg. 733- 35. The September 20 letter was the only document which referenced “Seafield” rather than Kingsboro as Avitto’s rehab facility. The trial transcript confirmed that this misleading document steered him away from significant cross examination of Avitto. The letter documented: 2 The letter, which in substantial part mimicked the accurate September 19 violation letter, differed from it in that it did not refer to Avitto's upcoming October 6 court date and in parts referred to Avitto as a “client” rather than “defendant.” The letter was also riddled with typos and spelling errors even where it contained the exact language of the September 19 letter. 107Do [sic] to this the defendant was placed in St. John’s Detox and targeted for Seafield Rehab. The client entered into St. John’s Detox but left against the request of EAC- LINK and did not make intake at Seafield Rehab. Mr. Gregory examined Avitto as follows: Q: You enter into St. John’s Detox, but leave against the request of EAC-LINK, and did not go to Seafield Rehab, isn’t that what happened, sir? Tr. 803. Counsel's reliance on this inaccurate letter (and lack of knowledge about the September 19 Giglio and Rosario material) prejudiced Giuca by unfairly restricting trial counsel’s ability to cross Avitto about the credibility-destroying events of September 19. 108CONCLUSION John Giuca was convicted without receiving a fair trial and has been incarcerated for more than 11 years as a result. The evidence at the C.P.L. § 440.10 hearing has established that he was denied significant Giglio and Rosario material, that the prosecution relied on false and misleading testimony and evidence, and that, newly discovered evidence would have resulted in a more favorable verdict for Giuca had he known about it at trial. His conviction should be vacated, and a new trial ordered. Respectfully submitted, MARK A. BEDEROW ANDREW M. STENGEL (of counsel) 260 Madison Avenue New York, New York 10016 212.803.1293 mark@bederowlaw.com Attorneys for John Giuca Dated: New York, New York February 1, 2016