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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS : CRIMINAL TERM : PART 19
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THE PEOPLE OF THE STATE OF NEW YORK : INDICTMENT NO.
8166/2004
- against - :
JOHN GIUCA :
DEFENDANT : HEARING
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320 JAY STREET BROOKLYN, NEW YORK 11201
APRIL 20, 2016
BEFORE: HONORABLE DANNY K. CHUN,
JUSTICE
APPEARANCES:
KENNETH P. THOMPSON, ESQ.
District Attorney, Kings County
BY: KENNETH TAUB, ESQ.
DIANE EISNER, ESQ.
Assistant District Attorneys
MARK BEDEROW, ESQ.
Attorney for Defendant
260 Madison AvenueNew York, New York 10016
ANDREW STENGEL, ESQ.
Attorney for Defendant
11 Broadway
New York, New York 10004
LAUREN K. GANZMAN
SENIOR COURT REPORTER
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2PROCEEDINGS 1 THE CLERK: Number three on the Part 19 calendar
2 Indictment 8166 of 2004, John Giuca.
3 Your appearances, please.
4 MR. TAUB: Office of the District Attorney by Ke
5 Taub and Diane Eisner.
6 Good afternoon, your Honor.
7 THE COURT: Good afternoon.
8 MR. BEDEROW: For Mr. Giuca, Mark Bederow,
9 B-E-D-E-R-O-W, 260 Madison Avenue, New York, New York.
10 Good afternoon.
11 THE COURT: Good afternoon.
12 MR. STENGEL: Andrew Stengel, 11 Broadway,
13 New York, New York 10004.
14 Good afternoon.
15 THE COURT: Good afternoon.
16 This morning, I received a phone call from
17 Mr. Bederow that defendant, Mr. Giuca, was not going to be
18 produced today. After getting that call, I did confirm
19 with the court personnel, who also stated that defendant
20 will not be brought to court today because -- I don't know
21 if it was some oversight or not, but neither side had done
22 an order to produce. It may have been because one or more
23 people thought or assumed that he would be produced today
24 So the option was to adjourn to have the
25 defendant be here, or since I was not going to issue a
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3PROCEEDINGS 1 decision today anyway, if counsels wanted, you could
2 proceed with oral arguments, and at next proceeding,
3 defendant would be, of course, present.
4 Mr. Bederow, what is your position?
5 MR. BEDEROW: Our position is that we're prepare
6 to proceed. As I told the Court this morning, Mr. Giuca
7 and I discussed the possibility of this happening and I
8 certainly have his permission to proceed in his absence an
9 waive his appearance accordingly.
10 THE COURT: All right. So, Mr. Bederow is
11 waiving his client's appearance. That's after consultatio
12 with the defendant. So we'll proceed with oral arguments
13 I said when I -- at the conclusion of the testimony, I set
14 a schedule for the briefs and any replies, and I set
15 aside -- I said I would give 30 minutes per side, but you
16 don't have to use the entire 30 minutes.
17 So I'll hear from you, Mr. Bederow.
18 MR. BEDEROW: Judge, it was my --
19 THE COURT: You can speak from there or --
20 MR. BEDEROW: I'm going to come up there, but as
21 it's our burden of proof, I'm requesting to go last.
22 THE COURT: Counsels, approach.
23 (Off-the-record discussion held at the bench)
24 THE COURT: All right, after consultation at the
25 bench, Mr. Taub is okay with going first.
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4PROCEEDINGS 1 MR. TAUB: Yes, your Honor.
2 Your Honor, I'm sure I don't have to remind the
3 Court, but I will, that we consented to this hearing
4 without any opposition whatsoever and we did so because
5 there were serious accusations by the defense that were
6 both grave and numerous in the papers that were submitted
7 to us requesting a hearing.
8 There were alleged recantations by three of the
9 five principal civilian witnesses in the case: Lauren
10 Calciano, Anthony Beharry, John Avitto. There was the
11 allegation that Mr. Giuca's father was physically incapabl
12 of speech, thus rendering Mr. Avitto's testimony
13 perjurious. There was an allegation that the prosecution
14 had used or provided a forged document to hide misconduct
15 by Avitto, a document that was allegedly issued by the
16 program he was in, and in support of that, the motion
17 papers contained the affidavit of a handwriting expert, a
18 so-called expert, who was purported to -- who was prepared
19 to say that it was a forgery.
20 And perhaps most serious, there were personal
21 attacks on the ethics and truthfulness of Anna-Sigga
22 Nicolazzi, who is one of the most highly-regarded
23 prosecutors in this county. Now, I've known Ms. Nicolazzi
24 for close to two decades. I am the one responsible for
25 seeking her to be made a Deputy Bureau Chief in the
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5PROCEEDINGS 1 Homicide Bureau and I did so, not just for the respect I
2 have for her trial abilities, but for her integrity as
3 well.
4 So we consented to this hearing because the
5 defendant had not just the right, but the obligation to
6 prove in a court of law the various assertions that they
7 made.
8 Now that we're here many months later, there is
9 no Calciano recantation; there is no Beharry recantation;
10 there is no proof that John Giuca's father couldn't have
11 uttered the few words attributed to him by John Avitto;
12 there is no handwriting expert called to prove that the
13 program letter was forged, and it seems from the papers
14 that defense counsel has, for all intents and purposes, he
15 seems to have abandoned any claim of a credible recantatio
16 by John Avitto.
17 So we're left with just two claims.
18 The first is that John Avitto was destined to be
19 sentenced to prison on June 13 for violations of the drug
20 program he was in but for the intervention of ADA
21 Anna-Sigga Nicolazzi, and that, secondly, that Avitto had
22 well-documented history of mental illness which was known
23 or should have been known by the prosecution and should
24 have been disclosed.
25 In his reply papers, Mr. Bederow stresses, first
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6PROCEEDINGS 1 that when Avitto came forward, this was in issue -- the
2 detectives testified and Mr. Bederow maintained it was the
3 only evidence that Mr. Avitto came forward before he had
4 any violation to deal with, and Mr. Bederow claimed that
5 the only evidence was the Detectives, Byrnes and
6 McCafferty, and it was their bare recollection after ten
7 years that they had met him in some treatment facility,
8 which they could not be more specific about.
9 Your Honor, this simply is not true. The
10 interview that Avitto had with Jay Salpeter, the defense
11 investigator, and which I moved into evidence, also
12 provides the following:
13 Mr. Salpeter, the investigator, is trying to get
14 Mr. Avitto to say that he only came forward when he was
15 jammed up and in trouble, but a reading of the transcript
16 in multiple places has John Avitto insisting that when he
17 called them, quote, there was no trouble for me. And he
18 says this more than once. Then he's asked, "So you called
19 them before that? Right. You called them before June 9,
20 before you violated? Yes. You called them."
21 I've only read two examples, but there are
22 numerous examples in the transcript where Avitto is
23 insisting to Salpeter, the defense investigator, that he
24 came forward before he had any problems that he would have
25 wanted assistance on. So it's not just the detectives --
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7PROCEEDINGS 1 as if the detectives' testimony, a First-Grader with
2 30-some-odd years' experience, in the case of McCafferty,
3 should be not considered at all. That these detectives
4 would perjure themselves on the stand for reasons that I
5 can't fathom. So, in fact, Mr. Avitto, in an unguarded
6 recording made by the defense, confirms, in fact, that he
7 came forward beforehand.
8 The second thing I wanted to bring to the Court
9 attention about Mr. Bederow's response papers is this: He
10 mentions Sean Ryan and he referred to a footnote on page
11 ten that the People know that Ryan resides in Texas and
12 refused to make himself available to testify. Sean Ryan
13 being one of the counselors at the program that John Avitt
14 was in. Your Honor, we know no such thing. The only thin
15 I know is this: That I got a call from Mr. Bederow
16 indicating he was having difficulty contacting Mr. Ryan an
17 that my office had his phone number based upon the work
18 done by the Conviction Review Unit of my office.
19 I told Mr. Bederow that I would reach out to Sea
20 Ryan. I did so. I spoke to Mr. Ryan and made a point of
21 not asking him any substantive questions because I did not
22 want to be in the position of being accused of in any way
23 suggesting or causing testimony to be altered or tampered
24 with, so I asked him nothing substantive about what his
25 testimony might be. I simply indicated that Mr. Bederow
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8PROCEEDINGS 1 wanted to get a hold of him and the expectation was that
2 Mr. Bederow wanted him to come and appear, and if he did
3 not respond to Mr. Bederow's emails, Mr. Bederow
4 acknowledged having the email address of Mr. Ryan, that if
5 he didn't respond to those emails, I would be forced to
6 give Mr. Bederow his phone number. I heard nothing else
7 except that Mr. Bederow reported back to me that he had
8 been in touch with Sean Ryan and that nothing further was
9 necessary on my part. So I certainly had no knowledge,
10 despite the assertion made in these papers, that he was
11 unwilling to come.
12 The defendant has the burden of proof in this
13 hearing, that's why he's going last. And there are
14 conflicting accounts, quite frankly, in the case notes, an
15 the defense could have called Ryan to reconcile those if h
16 thought that that testimony would help him. I suggest it
17 would not have helped him and that's why he didn't call
18 him. There is such a thing as a material-witness order in
19 this state and I checked the statute, it applies to all
20 criminal proceedings, including post-conviction hearings.
21 So there's no reason why, if defense counsel wanted Sean
22 Ryan to appear and clarify these conflicting statements in
23 the papers, he could have done so, but I suspect that he
24 would have told the Court the same thing that he told the
25 Conviction Review Unit, which is that it was his signature
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9PROCEEDINGS 1 on both of those documents and he had no reason to think
2 anything was forged.
3 A lot has been made of Mr. Avitto's credibility
4 or lack thereof and I won't spend a lot of time talking
5 about it, but I will say this: That the attempts to cajol
6 and coerce him into recanting were intent. The defendant
7 girlfriend, Marley Davis, lied to him about some alleged
8 convict brother, took him to lunch, had him sign false
9 recantations. There were hundreds of texts in the day
10 leading up to those recantations to both Salpeter and
11 Mr. Bederow. Simultaneously, Ms. Davis was texting the
12 defendant's mother and, no doubt, permit me a little bit o
13 speculation to suggest that she was getting instructions
14 from the woman who had tried to do the same thing to a
15 juror in this case.
16 But I introduced those Salpeter tapes for a
17 reason. Because to listen to the number of times, even
18 where John Avitto was conceding that he had made stuff up
19 in a very natural and seemingly guileless way, when you
20 listen to those tapes, he repeated that these assertions
21 about what he testified to at trial were true. Not once,
22 not twice, not three times, multiple times, John Avitto
23 insisted on those tapes that what he had said was true,
24 even after he was being coerced by Mr. Salpeter to try to
25 recant.
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10PROCEEDINGS 1 Now, I submit that any objective listener to the
2 entire proceeding would likely agree that Avitto is most
3 credible in those moments and that the defendant really di
4 say the things to him and to his father. Your Honor,
5 nobody is insisting that Giuca said to Avitto about being
6 at the scene of the crime was the truth, it's our position
7 only that he said it to Avitto and that Avitto was telling
8 the truth when he related it to the jury.
9 So where are we at with these two issues that ar
10 left, the issue of the benefit he supposedly derived, as
11 well as this history of psychiatric illness? Review of th
12 patient notes that Avitto -- that we now have seems to
13 suggest that the violation of June 9th was not being
14 treated that seriously. First of all, it was is Avitto
15 who, himself, reported the violation to his counselors, no
16 once, not twice, but, I believe, three times. And it was
17 not being treated that seriously by the people in the
18 program to the extent that they said to him, as reflected
19 in the notes, John, it's too late to do anything about thi
20 on Friday afternoon, why don't you come in Monday.
21 But Mr. Bederow would have you believe that
22 Avitto was destined to be shipped Upstate to prison if not
23 for the intervention of Ms. Nicolazzi. And to that, we
24 submit, that's nonsense. The entire premise of drug
25 treatment is an alternative to incarceration, to avoid
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11PROCEEDINGS 1 sending a drug addict to prison, an attempt to control or
2 even cure his addiction. That's the purpose of the
3 program. If everyone who violated was shipped Upstate to
4 prison on the first time out, I submit virtually no one
5 would be able to complete the program.
6 The record shows that Judge Parker, before whom
7 Avitto appeared, was one of the most lenient judges most
8 likely to give second, third, fourth and even fifth
9 chances. I submit, your Honor, that it's more likely that
10 I could spontaneously grow a full head of hair than it was
11 that John Avitto was going to be sent Upstate to serve his
12 time on June 13.
13 Further, from Nicolazzi's perspective, why on
14 Earth would she do anything to assist Mr. Avitto at that
15 time frame? She had only met him that day; she had not
16 vetted anything he had to say, including where he was
17 incarcerated; she hadn't made any decision to call him
18 whatsoever. And from a prosecutor's perspective, let me
19 say, we generally prefer our witnesses to be in jail than
20 on the street because they're least likely to get in
21 trouble there and we know where to find them.
22 So there's really no reason to think whatsoever
23 that Ms. Nicolazzi wanted him on the street, nor did
24 anything to accomplish it. I submit this was the normal
25 functioning of a drug part in which drug offenders are
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12PROCEEDINGS 1 given multiple chances to succeed before they're failed.
2 And if John Avitto had been made promises by the
3 prosecution, then why on Earth did he not complain about i
4 when he finally was sentenced years later, when he had
5 screwed up even too many times for Judge Parker?
6 Now, I want to turn finally to that issue of
7 these treatment notes regarding the mental illness
8 assertion. Avitto, in those very notes, admits that he
9 fabricated many of the symptoms, particularly the most
10 egregious ones about hearing voices and such, to gain a
11 benefit of which program he went to. And I have to submit
12 as did Ms. Nicolazzi on the stand, agree that that fact
13 that he lied to get an advantage to himself is something
14 that absolutely would have been helpful for Sam Gregory to
15 know and to use, and, for that matter, to the prosecution
16 to know.
17 But we did not have those records in our
18 possession. We were unaware of the contents of those
19 records; they were protected by HIPAA law, and we had no
20 reason to seek them out by court order because the behavio
21 and appearance and demeanor of Mr. Avitto in the sessions
22 with Ms. Nicolazzi and the detectives was such that there
23 was no hint that he possessed any kind of mental illness
24 other than the complaint he had of depression and the
25 obvious one of drug dependency, which we knew about.
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13PROCEEDINGS 1 This Court, your Honor, inspected the People's
2 file in that case and found nothing in the file that need
3 or should have been disclosed to the defense in that case
4 In short, your Honor, there was no benefit given to John
5 Avitto and we had no knowledge of the contents of that
6 medical file and no basis on which to seek it.
7 Finally, your Honor, just last Saturday night,
8 Sam Gregory, defense attorney, was given an award by the
9 Kings County Criminal Bar Association for a lifetime of
10 devotion to defendants and the cause of being a defense
11 attorney. Unlike many in the Criminal Defense Bar, he's
12 not somebody that started out in the D.A.'s Office, he
13 started out as a true believer in the Legal Aid Society.
14 His speech was peppered with references to the friction
15 between prosecutors and Legal Aid attorneys and the bar
16 around the corner. He is a true believer and he is a
17 demonstrated, skillful, zealous advocate on behalf of his
18 clients and has been for over 30 years. He was asked by m
19 at this hearing, at the end of all, whether he had any
20 doubt about the integrity of Ms. Nicolazzi. His answer wa
21 absolutely not.
22 So, in total, your Honor, I submit that most of
23 the allegations made in defense motion have been withdrawn
24 or not proven and the two that he maintains are clearly no
25 proven to any degree that would satisfy his burden of
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14PROCEEDINGS 1 proof.
2 I invite any questions from the Court that it
3 deems fit to ask.
4 THE COURT: No, I'll hear from the defense.
5 Thank you.
6 MR. BEDEROW: Your Honor, you know who disagrees
7 with Mr. Taub? The Court of Appeals. One thing we didn't
8 hear throughout that pitch was anything at all about the
9 law. In just three weeks before this hearing started, the
10 Court of Appeals, in People versus Taylor, a case which,
11 incidentally, the People chose not to discuss in any of
12 their post-hearing filings, reversed a murder conviction
13 where a jury was deprived of evidence that a homicide
14 prosecutor appeared on a potential witness' probation
15 violation case, the witness was released and a murder
16 conviction was tossed, even though, even though the jury
17 heard the evidence because the People disclosed it. But
18 when the jury sent a note asking for evidence of the
19 benefits, the Court, for whatever reason, didn't include
20 that evidence and a murder conviction was tossed.
21 That is exactly what Ms. Nicolazzi did. It
22 doesn't matter whether she meant to do it on purpose or
23 what they call benefits or not, the Court said in that cas
24 that that conduct by the prosecutor, and I quote, had an
25 especially strong bearing on his credibility because it
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15PROCEEDINGS 1 revealed a motive to testify falsely in favor of the
2 prosecution out of gratitude for the prosecutor's aid.
3 So that's what matters here, not what Mr. Taub
4 thinks about what Avitto wanted. Because there's another
5 important party that they left out in their speech when
6 they tell you Avitto was so convinced that he was going
7 Upstate. That's not the point. The point is the jury get
8 to decide and they seemed to have missed that through this
9 entire process. The jury decides credibility. And during
10 the hearing, both Detective Byrnes and Ms. Nicolazzi said
11 we think you might be going to jail. The last thing Judge
12 Parker said to Avitto, if you look at the transcript from
13 June 9, was you better work hard or else you're going away
14 for three-and-a-half to seven years. It's in the records
15 So we have proven at this hearing that exactly
16 like the prosecutor in Taylor, Ms. Nicolazzi intervened in
17 Avitto's case immediately after he offered to cooperate
18 against Giuca at a time that he was facing State prison.
19 They don't get to decide that Avitto didn't need help or
20 what he was thinking, the jury does. And although the jur
21 was entitled to that, Ms. Nicolazzi stepped in the wrong
22 shoes because she went from being advocate for the People
23 to being gatekeeper of all evidence that the defense and
24 jury get to hear, and once she did that, this conviction i
25 tainted.
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16PROCEEDINGS 1 She improperly deprived the jury of critical
2 impeachment material that would have undermined a false
3 premise that she urged the jury to adopt about Avitto. An
4 it's as plain as day and we'll get to what she said in
5 summation and what Avitto said. It's as plain as day. Sh
6 said that the only reason this guy cooperated was to clear
7 his conscience, the words she used, for once in his life t
8 do something right, and his own legal problems had no
9 bearing on that choice and it was ridiculous for Gregory t
10 suggest otherwise because there was absolutely no evidence
11 of that. We now know that was false.
12 Now, I don't know what to make of what Mr. Taub
13 said about Avitto because, apparently, in 2005, he was
14 honest and truthful and everything that Ms. Nicolazzi said
15 he was. He was a perfect witness. In fact, of all the
16 witnesses who testified against Giuca, he was the only one
17 who had a good motive, apparently, or had a clean
18 conscience because all the other ones were lying. But in
19 2005, as a junkie who was mentally ill and facing a prison
20 sentence, he was credible.
21 Now he comes forward in 2015 and he has
22 credibility problems, obviously. We all saw how his
23 testimony went and we all know what was on those tapes,
24 tapes that I gave them. So the irony here is, this Court
25 acting as fact finder right now, gets to hear all the
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17PROCEEDINGS 1 evidence about Avitto, including what we disclosed, the
2 so-called favorable impeachment material. But ten years
3 ago, in front of the jury, all they hear is that this guy
4 is a saint because she suppressed all that material and he
5 lied about it and she misled the jury about it. And they
6 can argue about that, they can be upset about it, but fact
7 are stubborn things; it's in the record. It's obvious.
8 The other thing which undermines their view abou
9 Avitto being an honest witness in 2005 are these EAC
10 records that they want to be the three monkeys. They don
11 see it, they don't hear it, they don't speak it, these
12 records that we have no basis to know what they were. But
13 you can't avert your eyes to the fact that what those
14 records establish is that in 2004 and 2005, when this man
15 was gearing up to testify against Giuca, this guy was a
16 train wreck who had no business being on the witness stand
17 The evidence of his perjury couldn't be more obvious. In
18 fact, they agree. Or the record's not perjury, but they
19 agree he lied about his mental illness.
20 But that misses the point. The point to what
21 Mr. Taub is saying, let me correct him, the point is it
22 demonstrated his willingness to say whatever needed to be
23 said at any given time to help himself. The quote that th
24 doctor wrote down was, "I had to do what I had to do to
25 help myself." And that's exactly what Avitto did at trial
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18PROCEEDINGS 1 exactly what he testified falsely about and exactly about
2 what Nicolazzi misled the jury about.
3 With respect to our burden of proof and Avitto,
4 another stubborn fact is we don't need Avitto for the Cour
5 to rule in our favor, and if the Court is so inclined, by
6 all means, dismiss his hearing testimony outright and thro
7 it in the garbage. It doesn't matter. What we just talke
8 about in Taylor, Ms. Nicolazzi admitted all the facts. Sh
9 met him when he had a warrant. She took him to court. Sh
10 told him you might go to jail. She appeared on the case.
11 She went up to Judge Parker, she said this guy's talking t
12 me on a murder case and he was released. That's it.
13 That's a Taylor violation. Done.
14 So Avitto's testimony at the hearing doesn't
15 impact other evidence that came out at the hearing. Such
16 as the fact the timing of Avitto's cooperation was
17 interwoven directly with the violation, and it's not about
18 calling detectives' perjury; they're wrong. Nobody's
19 suggesting they're lying. They're wrong. And the
20 corroboration that they argue for the detectives, you can
21 make this up, is Avitto, who they just told you is a lying
22 witness unworthy of belief, but he's the corroboration on
23 those Salpeter tapes that he talked about for when they
24 met.
25 As you saw in the papers that we submitted, the
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19PROCEEDINGS 1 guy violated his program on June 9 and called the cops tha
2 night. What's the source of that evidence? Anna-Sigga
3 Nicolazzi. It's in the records. She didn't dispute that
4 They don't dispute it. If you look at that entry on
5 June 13, she told Sean Ryan this guy called the cops on
6 June 9 about information on a murder case. I guess that
7 was the second time he called because he met with them in
8 his Brooklyn program before, even though all the documents
9 establish conclusively he was in Queens. It doesn't make
10 any sense.
11 The other evidence that came out at the hearing
12 that they don't even address are the internal
13 communications with the D.A.'s Office and EAC. There's on
14 document in particular which is critically important that
15 they just don't want to talk about and it's David Kelly's
16 notes. This guy, who I suggest was a very credible
17 witness, took notes three days after Ms. Nicolazzi met wit
18 Avitto and he was released after she told Judge Parker tha
19 he was talking to her about a murder case, he got a
20 concerned phone call. That's what he wrote, from EAC.
21 What did they tell him? That Avitto, quote, turned himsel
22 in to the D.A.'s Office. Turned himself in to the D.A.'s
23 Office, had info on a murder case and was not remanded and
24 Anne Swern and the director of EAC were talking about this
25 recently. That's D.A. communication.
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20PROCEEDINGS 1 So when we talked about the see no evil, speak n
2 evil, hear no evil about the EAC records, that's not going
3 to work with David Kelly's notes. Those are their notes
4 and that's favorable impeachment evidence because that
5 completely blows up what Avitto testified to in court and
6 what Nicolazzi misrepresented to the jury. She said he
7 only wanted to do the right thing and there's no evidence
8 of anything else that he was trying to help himself, and,
9 lo and behold, her colleague, who was also on the earlier
10 communication from Anne Swern, remember the special
11 attention, "Mark Avitto for special attention," 24 hours
12 after Ms. Nicolazzi met Avitto? That document, in and of
13 itself, corroborates everything that happened on June 13
14 and it was not disclosed and also serves as a stand-alone
15 violation. The EAC records are filled with other things
16 that the Court learned about at the hearing, which I won't
17 get into.
18 Another thing the People don't want to talk to
19 you about is what the standard here is. It's a
20 reasonable-possibility standard because the defense made
21 multiple requests for impeachment material and all they go
22 was denial and silence. And the Court cannot avert itself
23 also to what happened very shortly after Avitto testified
24 on September 22, 2005.
25 During the charge conference, Mr. Gregory gave a
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21PROCEEDINGS 1 detailed a Giglio demand as any lawyer could make, asking
2 about what is going on with Avitto, something's going on,
3 and he even said exactly what they ignore, it's for the
4 jury to decide; what do you have? What's going on? And
5 Justice Marrus looked at Ms. Nicolazzi and said do you wan
6 to say anything and she did. And she said it's absolutely
7 not true. She looked at Justice Marrus, heard everything
8 Sam Gregory said and said, we have nothing, it's not true
9 and then proceeded to give a summation denying the
10 existence of any evidence.
11 So what she told the jury, in quick fashion, was
12 that what happened from June 9 for the next couple of week
13 simply was a guy who pled guilty in February, was sentence
14 to a drug program, he was doing well, he came forward to d
15 the right thing sometime in June. Interesting that she
16 would choose to say "sometime" instead of "June 9" or not
17 fix a time. If he was in the program like they want you t
18 believe, why wouldn't she say, when you first called the
19 police, where were you; were you in trouble? She argued o
20 her own direct examination, she put this man's credibility
21 into issue herself, yet never asked and fixed in where his
22 motive was at that time. It doesn't make any sense.
23 And then you get to this Court appearance on
24 June 13 and what Avitto does and what she allows to happen
25 is they completely whitewash her presence from this whole
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22PROCEEDINGS 1 scene, right down to calling it "the D.A." and she told
2 this Court under oath at the hearing that that was
3 absolutely proper; it wasn't misleading; it was accurate
4 because I'm the D.A., just like every 500 other ones. As
5 if the jury would not have drawn a distinction between the
6 prosecutor who just met with Avitto in order to attempt to
7 get him to cooperate and told the judge that he was trying
8 to cooperate or some rookie in the courtroom. And she tol
9 you the jury had no right to know that; it was accurate; I
10 wouldn't change anything.
11 I suggest to you that testimony is disgraceful.
12 It demonstrates a complete lack of understanding of what
13 Giglio is. It was for the jury to determine what her role
14 was and she was absolutely obligated to correct that and
15 there is case law on that as well which we cited in our
16 brief. I won't get into it in too much detail, but it is
17 that Federal case of Jenkins versus Artuz, in which the
18 argument in that case, a Queens case, was the exact same
19 thing. Well, it was literally accurate, so it was true, s
20 it's not misleading, and the Court there tossed another
21 murder conviction on due process grounds because it noted
22 that although testimony can be literally true, it doesn't
23 make it accurate in the context of what -- of when it's
24 given.
25 And given that Avitto's credibility was
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23PROCEEDINGS 1 everything, they knew he was a jailhouse informant, they
2 knew he came forward months later, they knew he had
3 problems, they knew he had a criminal record longer than m
4 arm, they knew all this and they argued in their papers
5 that they submitted recently, they actually had the gall t
6 tell the Court that the testimony was accurate because on
7 June 10, Avitto called Sean Ryan, who told him to come bac
8 to court on Monday, June 13, and he did; therefore, it was
9 accurate. Of course, they left out the fact that Avitto
10 called the cops on June 9, and before he did go back to
11 court on June 13, you know where Avitto went? Nicolazzi's
12 office.
13 The misleading continues to this day in order to
14 save a conviction that can't be saved. Their position is
15 untenable. That's not even the worst of the prejudice tha
16 Ms. Nicolazzi caused Mr. Giuca. It was her summation wher
17 it spiraled out of control. She claimed there was no
18 evidence that Avitto was making anything up. We just
19 talked about why that wasn't true. She actually said the
20 evidence was black and white; it's clear as day. That he
21 called Ryan, which demonstrated that he was being
22 responsible. He returned to court responsibly and that
23 explained why the judge released him. Nevermind the littl
24 fact that he called you to cooperate against Mr. Giuca and
25 you told the judge the jury had no right to know that,
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24PROCEEDINGS 1 apparently; it had nothing to do with it. She claimed
2 there would be nothing to hide, there's no evidence, yet
3 there was evidence and she hid all of it. She emphasized
4 that he pled months -- he pled guilty months before he
5 called the police, but significantly left out all the
6 details about it.
7 And then, as if none of this was bad enough, she
8 actually hid the evidence from the defense, misled the jur
9 about the significance or their right to know about Avitto
10 and then ridiculed trial counsel for what she called
11 speculating about it even though she suppressed and hid al
12 the evidence that he was entitled to to make the argument
13 so he didn't speculate.
14 We talked about Taylor. The prejudice here is a
15 thousand times worse. The jury knew about the benefits in
16 Taylor. The Court of Appeals still reversed it. Same
17 thing in People versus Colon, another case that got, I
18 think, one line in their response that it doesn't apply
19 here. But it very much applies. Because in that case,
20 amongst other benefits, the homicide prosecutor appeared o
21 a calendar call of a witness. Not like Avitto. When
22 Avitto met with them, it was right after he cooperated.
23 His liberty was very much at stake. Ms. Nicolazzi admitte
24 that, contrary to what Mr. Taub says.
25 In that case, it was just a hearing on a calenda
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25PROCEEDINGS 1 call conveying an offer from another prosecutor and the
2 witness said there was nothing going on. The prosecutor
3 exploited the false testimony, the misleading testimony,
4 and the Court of Appeals unanimously reversed for a man wh
5 had been previously convicted of a homicide, had murdered
6 apparently two people in that case and shot two other
7 people, and the Court said that the prosecutor violated he
8 duty of candor and duty of fairness to the defendant.
9 That is exactly what happened here and the
10 emphasis in Taylor and the emphasis in Colon were on the
11 concern that the jury be deprived of reasonable evidence o
12 possible benefits. That's exactly what happened here. So
13 he can talk about recantations and other smoke screen
14 tactics and say whatever it is to try to justify their
15 vigorous defense of Ms. Nicolazzi's ethics. It's not the
16 issue. It's unfortunately part of this because she did
17 what she did, but it's not the issue. The issue is her
18 conduct, for whatever reason, was overzealous, there was a
19 obsession to win, corners were cut and Giuca was
20 prejudiced. It's as plain as day.
21 Now, as far as the EAC records, I'll just touch
22 on these briefly. Ms. Nicolazzi said that Avitto told her
23 that I'm a drug addict, I suffer from mental illness and I
24 left my program because I need more help with that. She
25 went to court. He was in a TAD Program, TAD, Treatment
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26PROCEEDINGS 1 Alternatives for the Duly-Diagnosed. They knew it was
2 mental illness, they knew it was drugs. She spoke to Sean
3 Ryan regularly. She met Avitto in a program a couple days
4 before he testified. She had all these emails from Anne
5 Swern and David Kelly, who's the mental health guy, and
6 Mr. Heslin, who's the drug court guy. She even spoke to
7 Avitto's case prosecutor. Do we really think that they
8 didn't talk about what's wrong with this guy?
9 And there was a note that was sent back to her
10 from court, Mr. Taub is not accurate. The Court did order
11 disclosure of one piece of paper in the file, which said,
12 send this to Ms. Nicolazzi in homicide. Any reasonable
13 prosecutor in those circumstances, in possession of
14 specific Giglio demands, should have at least had a minor
15 interest in trying to figure out what's going on. But she
16 didn't want to. She chose to be willfully blind and
17 they're talking about privacy issues and HIPAA; it's
18 another smoke screen. Even when you look at the EAC
19 records or Ryan's progress notes, he told her a few days
20 before she met him, you got to get a waiver from this guy
21 She spoke to him so, presumably, she did. So that's a
22 bunch of nonsense too.
23 But the worst part about these records, on top o
24 demonstrating that the guy had no credibility back then,
25 they are the best proof of her reckless summation and how
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27PROCEEDINGS 1 it prejudiced Mr. Giuca. Because whether she should have
2 looked at the records because he was mentally ill or not o
3 had a drug program -- problem, excuse me, when she decided
4 to vouch vigorously for this man's credibility, which is
5 another issue entirely, when she said, quote, he was very
6 honest about his problems and criminal past, he freely
7 admitted things which he clearly isn't proud of and that
8 goes to his credibility as a witness, that's what she told
9 the jury. That statement could not be more blatantly
10 false, obviously. We've all heard the records; I don't
11 think they would dispute that.
12 So whose fault is that? The answer is it's the
13 person who made the statement by vouching for the
14 credibility of someone she knew was a mentally-ill junkie
15 who was violating his program all the time, was getting
16 these emails from Anne Swern and everyone else and is
17 telling you, I didn't know, I didn't know, but it's okay
18 for me to tell the jury he was very honest about his
19 problems, he freely admitted things, when it so obviously
20 is false. They need to be held accountable for that
21 recklessness. It never should have happened. It wasn't
22 fair. And her testimony at the hearing is the best exampl
23 to prove that point.
24 She told this Court, "I wasn't interested in
25 Avitto's court dates." That has got to be the most
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28PROCEEDINGS 1 remarkable testimony that anybody gave at that hearing. I
2 am the senior homicide prosecutor; I know my witness has
3 all these problems; I know he goes to court; hey, I even
4 went with him one time and told the judge; I know he's
5 mentally ill; I know he's a junkie; I know all these
6 problems; Anne Swern is telling me to pay attention to thi
7 guy, and her testimony was, "I wasn't interested in his
8 court dates." That is disgraceful.
9 Finally, another topic they didn't want to get
10 into is materiality. Does any of this even matter? Again
11 under the reasonable-possibility standard, if Avitto --
12 what happened with Avitto might have impacted the jury, if
13 that's possible, then under numerous Court of Appeals
14 precedents, this case has got to go. Well, why does Avitt
15 matter? The best example is the circumstance of the trial
16 She told us at the hearing that she believed him, yet when
17 the trial started, they put him on ice. There's got to be
18 a reason for that. So they decide they're going to try th
19 case with Albert Cleary and Lauren Calciano and they're
20 going to try it under the theory that Mr. Giuca gave
21 Antonio Russo a gun, but he wasn't there.
22 And in her opening statement, we never heard
23 about Avitto, we never heard about the theory that Giuca
24 was there, but what we did hear was that Lauren Calciano
25 didn't really get a true story, but Albert Cleary got,
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29PROCEEDINGS 1 quote, the full story. In other words, ladies and
2 gentlemen of the jury, pay attention to Cleary, that's the
3 witness. And as the case went on, look how these two came
4 out. Both of them were admitted liars. Both of them were
5 pressured to cooperate. Both of them were inconsistent on
6 every single critical detail. And if that's not enough,
7 there was the fiasco of whether Calciano removed evidence
8 They're talking about a meeting in which they
9 were both present and Albert Cleary says under oath, "I sa
10 her remove evidence," and Lauren Calciano said under oath
11 "I did not remove evidence." Now notwithstanding the
12 gymnastics, the logical gymnastics that Ms. Nicolazzi was
13 trying to do about this at the hearing, somebody lied.
14 That's obvious. They can't both be true. And these are
15 their witnesses.
16 So the case, clearly, is going down the drain.
17 Then she tells us at the hearing, after they testified, I
18 decided I'm calling Avitto. Without more, we're already
19 into logically concluding that Avitto has to matter, the
20 jury might have considered him. But the real reason is
21 when they went into summation, she tied her anchor to that
22 guy and rode him the whole way home, saying Avitto is the
23 witness. She told the jury that what previously, in
24 opening, when Albert Cleary got the full story, now, two
25 weeks later, when Giuca spoke to Cleary, these were partia
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30PROCEEDINGS 1 truths or he was dancing around the truth and it was John
2 Avitto that Giuca told the truth to. That's what she said
3 Giuca was being truthful when he told Avitto.
4 And then she said, and this is the most
5 compelling point of her summation that makes this open and
6 shut: It didn't even make sense. She said it didn't even
7 make sense that Russo could have done this alone. And the
8 testimony from Cleary was Russo did it alone. The
9 testimony from Calciano was Russo did it alone. The
10 testimony from Avitto was Giuca was there and Nicolazzi
11 said Giuca was there, it didn't make sense otherwise. Are
12 we to believe, based on that, it might not have possibly
13 impacted the verdict in this case? And then you add the
14 fact of all the vouching for his credibility and all the
15 other evidence that they hid about him from the jury and
16 how she said he was truthful, honest, forthright. The
17 prejudicial impact of what they did with these shenanigans
18 with Avitto is off the charts and she said Avitto was the
19 only honest one of the bunch.
20 Finally, Judge, this is not a case where, you
21 know, you have three witnesses or four witnesses and
22 there's a problem with one, so you flush him down and say
23 well, who cares, there are three other witnesses who saw
24 what happened, so it's harmless. That works in some cases
25 The problem they have here is the three witnesses are all
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31PROCEEDINGS 1 over the place; none of them agree about anything. Some o
2 them have clearly committed perjury based on what we talke
3 about earlier with Calciano and Cleary. They have all
4 these other credibility problems. The prosecutor, herself
5 essentially tosses them aside and tells them to pick one,
6 the honest one, the truthful one. So there's really no wa
7 to conclude otherwise.
8 At the end of the day, overzealousness and an
9 obsession to win resulted in a perfect storm of prejudice
10 against Mr. Giuca. They ignored Giglio demands, they
11 disclosed nothing. They unleashed Avitto at the last
12 minute to change the whole theory of the case that
13 Mr. Gregory couldn't even prepare for. The guy testified
14 in a misleading way. They didn't correct it. They
15 exploited it with false argument. They made no efforts to
16 learn about their witness and they told the jury there was
17 no evidence that this guy could have possibly wanted
18 anything. They're ignoring the Court of Appeals over and
19 over again and the bottom line is that this verdict has
20 been exposed as a complete sham which the Court should not
21 tolerate a conviction secured in this manner, especially
22 with everything that's going on in this county right now.
23 We've all seen it. There is a crisis going on
24 with wrongful convictions that is epicentered right here
25 for this kind of reason. This can't stand. And if they
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32PROCEEDINGS 1 think that John Giuca is responsible for Mark Fisher's
2 death, they have every right to try him, but they're
3 obligated to try him fairly. This conviction can't stand
4 and if they want to take another shot at it and they want
5 to use Avitto or whoever else they want to, they can. But
6 it is clear that Mr. Giuca was deprived of a fair trial.
7 Thank you.
8 (Whereupon people in the audience started
9 clapping)
10 THE COURT: Folks, you're in a courtroom, you're
11 not anywhere else.
12 Counsels, approach.
13 (Off-the-record discussion held at the bench)
14 THE COURT: Thank you, counsels.
15 I will adjourn this case for my decision and
16 everybody will make sure that defendant is produced and
17 present. I'll calendar it on June 9 for my decision. I'l
18 file a decision and I'll put certain things on the record
19 as I do so.
20 Thank you. June 9.
21 * * * * *
22 CERTIFIED TO BE A TRUE AND ACCURATE TRANSCRIPT OF THE
23 MINUTES TAKEN IN THE ABOVE-TITLED PROCEEDING
24