Giuca Oral Arguments

8/18/2019 Giuca Oral Arguments

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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.


12 MR. STENGEL: Andrew Stengel, 11 Broadway,

13 New York, New York 10004.

14 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

Giuca Oral Arguments

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Transcript of Giuca Oral Arguments