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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

- against -

JOHN GIUCA

INDICTMENT NO.
8166/2004

:
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 Avenue
New York, New York 10016
ANDREW STENGEL, ESQ.
Attorney for Defendant
11 Broadway
New York, New York 10004
LAUREN K. GANZMAN
SENIOR COURT REPORTER

PROCEEDINGS
1
2

THE CLERK:

Number three on the Part 19 calendar,

Indictment 8166 of 2004, John Giuca.

Your appearances, please.

MR. TAUB:

Office of the District Attorney by Ken

Taub and Diane Eisner.

Good afternoon, your Honor.

THE COURT:

MR. BEDEROW:

Good afternoon.
For Mr. Giuca, Mark Bederow,

B-E-D-E-R-O-W, 260 Madison Avenue, New York, New York.

10

Good afternoon.

11

THE COURT:

12

MR. STENGEL:

Good afternoon.
Andrew Stengel, 11 Broadway,

13

New York, New York 10004.

14

Good afternoon.

15

THE COURT:

16

This morning, I received a phone call from

Good afternoon.

17

Mr. Bederow that defendant, Mr. Giuca, was not going to be

18

produced today.

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.

23

people thought or assumed that he would be produced today.

24
25

After getting that call, I did confirm

It may have been because one or more

So the option was to adjourn to have the


defendant be here, or since I was not going to issue a
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PROCEEDINGS

decision today anyway, if counsels wanted, you could

proceed with oral arguments, and at next proceeding,

defendant would be, of course, present.

Mr. Bederow, what is your position?

MR. BEDEROW:

Our position is that we're prepared

to proceed.

and I discussed the possibility of this happening and I

certainly have his permission to proceed in his absence and

waive his appearance accordingly.

10

As I told the Court this morning, Mr. Giuca

THE COURT:

All right.

So, Mr. Bederow is

11

waiving his client's appearance.

That's after consultation

12

with the defendant.

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.

So we'll proceed with oral arguments.

17

So I'll hear from you, Mr. Bederow.

18

MR. BEDEROW:

19

THE COURT:

20

MR. BEDEROW:

21

Judge, it was my --

You can speak from there or -I'm going to come up there, but as

it's our burden of proof, I'm requesting to go last.

22

THE COURT:

23

(Off-the-record discussion held at the bench)

24

THE COURT:

25

Counsels, approach.

All right, after consultation at the

bench, Mr. Taub is okay with going first.


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MR. TAUB:

Yes, your Honor.

Your Honor, I'm sure I don't have to remind the

Court, but I will, that we consented to this hearing

without any opposition whatsoever and we did so because

there were serious accusations by the defense that were

both grave and numerous in the papers that were submitted

to us requesting a hearing.

8
9

There were alleged recantations by three of the


five principal civilian witnesses in the case:

Lauren

10

Calciano, Anthony Beharry, John Avitto.

11

allegation that Mr. Giuca's father was physically incapable

12

of speech, thus rendering Mr. Avitto's testimony

13

perjurious.

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

There was the

There was an allegation that the prosecution

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.

24

for close to two decades.

25

seeking her to be made a Deputy Bureau Chief in the

Now, I've known Ms. Nicolazzi

I am the one responsible for

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PROCEEDINGS

Homicide Bureau and I did so, not just for the respect I

have for her trial abilities, but for her integrity as

well.

So we consented to this hearing because the

defendant had not just the right, but the obligation to

prove in a court of law the various assertions that they

made.

Now that we're here many months later, there is

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 recantation

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 a

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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PROCEEDINGS

that when Avitto came forward, this was in issue -- the

detectives testified and Mr. Bederow maintained it was the

only evidence that Mr. Avitto came forward before he had

any violation to deal with, and Mr. Bederow claimed that

the only evidence was the Detectives, Byrnes and

McCafferty, and it was their bare recollection after ten

years that they had met him in some treatment facility,

which they could not be more specific about.

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.

18

says this more than once.

Then he's asked, "So you called

19

them before that?

You called them before June 9,

20

before you violated?

21

Right.
Yes.

And he

You called them."

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 -- LKG -

PROCEEDINGS

as if the detectives' testimony, a First-Grader with

30-some-odd years' experience, in the case of McCafferty,

should be not considered at all.

would perjure themselves on the stand for reasons that I

can't fathom.

recording made by the defense, confirms, in fact, that he

came forward beforehand.

8
9

That these detectives

So, in fact, Mr. Avitto, in an unguarded

The second thing I wanted to bring to the Court's


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.

13

being one of the counselors at the program that John Avitto

14

was in.

15

I know is this:

16

indicating he was having difficulty contacting Mr. Ryan and

17

that my office had his phone number based upon the work

18

done by the Conviction Review Unit of my office.

19

Your Honor, we know no such thing.

Sean Ryan

The only thing

That I got a call from Mr. Bederow

I told Mr. Bederow that I would reach out to Sean

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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PROCEEDINGS

wanted to get a hold of him and the expectation was that

Mr. Bederow wanted him to come and appear, and if he did

not respond to Mr. Bederow's emails, Mr. Bederow

acknowledged having the email address of Mr. Ryan, that if

he didn't respond to those emails, I would be forced to

give Mr. Bederow his phone number.

except that Mr. Bederow reported back to me that he had

been in touch with Sean Ryan and that nothing further was

necessary on my part.

I heard nothing else

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, and

15

the defense could have called Ryan to reconcile those if he

16

thought that that testimony would help him.

17

would not have helped him and that's why he didn't call

18

him.

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

I suggest it

There is such a thing as a material-witness order in

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PROCEEDINGS

on both of those documents and he had no reason to think

anything was forged.

A lot has been made of Mr. Avitto's credibility

or lack thereof and I won't spend a lot of time talking

about it, but I will say this:

and coerce him into recanting were intent.

girlfriend, Marley Davis, lied to him about some alleged

convict brother, took him to lunch, had him sign false

recantations.

That the attempts to cajole


The defendant's

There were hundreds of texts in the day

10

leading up to those recantations to both Salpeter and

11

Mr. Bederow.

12

defendant's mother and, no doubt, permit me a little bit of

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

Simultaneously, Ms. Davis was texting the

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.

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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Not once,

PROCEEDINGS
1

10

Now, I submit that any objective listener to the

entire proceeding would likely agree that Avitto is most

credible in those moments and that the defendant really did

say the things to him and to his father.

nobody is insisting that Giuca said to Avitto about being

at the scene of the crime was the truth, it's our position

only that he said it to Avitto and that Avitto was telling

the truth when he related it to the jury.

Your Honor,

So where are we at with these two issues that are

10

left, the issue of the benefit he supposedly derived, as

11

well as this history of psychiatric illness?

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.

15

who, himself, reported the violation to his counselors, not

16

once, not twice, but, I believe, three times.

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 this

20

on Friday afternoon, why don't you come in Monday.

21

Review of the

First of all, it was is Avitto

And it was

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.

24

submit, that's nonsense.

25

treatment is an alternative to incarceration, to avoid

And to that, we

The entire premise of drug

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11

sending a drug addict to prison, an attempt to control or

even cure his addiction.

program.

prison on the first time out, I submit virtually no one

would be able to complete the program.

That's the purpose of the

If everyone who violated was shipped Upstate to

The record shows that Judge Parker, before whom

Avitto appeared, was one of the most lenient judges most

likely to give second, third, fourth and even fifth

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?

16

vetted anything he had to say, including where he was

17

incarcerated; she hadn't made any decision to call him

18

whatsoever.

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

She had only met him that day; she had not

And from a prosecutor's perspective, let me

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.

25

functioning of a drug part in which drug offenders are


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I submit this was the normal

PROCEEDINGS

12

given multiple chances to succeed before they're failed.

And if John Avitto had been made promises by the

prosecution, then why on Earth did he not complain about it

when he finally was sentenced years later, when he had

screwed up even too many times for Judge Parker?

Now, I want to turn finally to that issue of

these treatment notes regarding the mental illness

assertion.

fabricated many of the symptoms, particularly the most

Avitto, in those very notes, admits that he

10

egregious ones about hearing voices and such, to gain a

11

benefit of which program he went to.

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

And I have to submit,

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 behavior

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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1

13

This Court, your Honor, inspected the People's

file in that case and found nothing in the file that need

or should have been disclosed to the defense in that case.

In short, your Honor, there was no benefit given to John

Avitto and we had no knowledge of the contents of that

medical file and no basis on which to seek it.

Finally, your Honor, just last Saturday night,

Sam Gregory, defense attorney, was given an award by the

Kings County Criminal Bar Association for a lifetime of

10

devotion to defendants and the cause of being a defense

11

attorney.

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.

17

demonstrated, skillful, zealous advocate on behalf of his

18

clients and has been for over 30 years.

19

at this hearing, at the end of all, whether he had any

20

doubt about the integrity of Ms. Nicolazzi.

21

absolutely not.

22

Unlike many in the Criminal Defense Bar, he's

He is a true believer and he is a

He was asked by me

His answer was

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 not

25

proven to any degree that would satisfy his burden of


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1

proof.

2
3

14

I invite any questions from the Court that it


deems fit to ask.

THE COURT:

No, I'll hear from the defense.

Thank you.

MR. BEDEROW:

Your Honor, you know who disagrees

with Mr. Taub?

The Court of Appeals.

One thing we didn't

hear throughout that pitch was anything at all about the

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.

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.

But

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 case

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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15

revealed a motive to testify falsely in favor of the

prosecution out of gratitude for the prosecutor's aid.

So that's what matters here, not what Mr. Taub

thinks about what Avitto wanted.

important party that they left out in their speech when

they tell you Avitto was so convinced that he was going

Upstate.

to decide and they seemed to have missed that through this

entire process.

That's not the point.

Because there's another

The point is the jury gets

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.

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.

15

The last thing Judge

It's in the records.

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.

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 is

25

tainted.
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And although the jury

PROCEEDINGS
1

16

She improperly deprived the jury of critical

impeachment material that would have undermined a false

premise that she urged the jury to adopt about Avitto.

it's as plain as day and we'll get to what she said in

summation and what Avitto said.

said that the only reason this guy cooperated was to clear

his conscience, the words she used, for once in his life to

do something right, and his own legal problems had no

bearing on that choice and it was ridiculous for Gregory to

It's as plain as day.

And

She

10

suggest otherwise because there was absolutely no evidence

11

of that.

12

We now know that was false.


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.

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.

19

2005, as a junkie who was mentally ill and facing a prison

20

sentence, he was credible.

21

He was a perfect witness.

In fact, of all the

But in

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.

25

acting as fact finder right now, gets to hear all the

So the irony here is, this Court,

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PROCEEDINGS

17

evidence about Avitto, including what we disclosed, the

so-called favorable impeachment material.

ago, in front of the jury, all they hear is that this guy

is a saint because she suppressed all that material and he

lied about it and she misled the jury about it.

can argue about that, they can be upset about it, but facts

are stubborn things; it's in the record.

8
9

But ten years

And they

It's obvious.

The other thing which undermines their view about


Avitto being an honest witness in 2005 are these EAC

10

records that they want to be the three monkeys.

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.

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.

18

fact, they agree.

19

agree he lied about his mental illness.

20

They don't

But

In

Or the record's not perjury, but they

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.

24

doctor wrote down was, "I had to do what I had to do to

25

help myself."

The quote that the

And that's exactly what Avitto did at trial,


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18

exactly what he testified falsely about and exactly about

what Nicolazzi misled the jury about.

With respect to our burden of proof and Avitto,

another stubborn fact is we don't need Avitto for the Court

to rule in our favor, and if the Court is so inclined, by

all means, dismiss his hearing testimony outright and throw

it in the garbage.

about in Taylor, Ms. Nicolazzi admitted all the facts.

She

met him when he had a warrant.

She took him to court.

She

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 to

12

me on a murder case and he was released.

13

That's a Taylor violation.

14

It doesn't matter.

What we just talked

That's it.

Done.

So Avitto's testimony at the hearing doesn't

15

impact other evidence that came out at the hearing.

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.

19

suggesting they're lying.

20

corroboration that they argue for the detectives, you can't

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

They're wrong.

Such

Nobody's

And the

As you saw in the papers that we submitted, the


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19

guy violated his program on June 9 and called the cops that

night.

Nicolazzi.

They don't dispute it.

June 13, she told Sean Ryan this guy called the cops on

June 9 about information on a murder case.

was the second time he called because he met with them in

his Brooklyn program before, even though all the documents

establish conclusively he was in Queens.

10

What's the source of that evidence?


It's in the records.

Anna-Sigga

She didn't dispute that.

If you look at that entry on

I guess that

It doesn't make

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.

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.

17

witness, took notes three days after Ms. Nicolazzi met with

18

Avitto and he was released after she told Judge Parker that

19

he was talking to her about a murder case, he got a

20

concerned phone call.

21

What did they tell him?

That Avitto, quote, turned himself

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.

There's one

This guy, who I suggest was a very credible

That's what he wrote, from EAC.

That's D.A. communication.


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PROCEEDINGS
1

20

So when we talked about the see no evil, speak no

evil, hear no evil about the EAC records, that's not going

to work with David Kelly's notes.

and that's favorable impeachment evidence because that

completely blows up what Avitto testified to in court and

what Nicolazzi misrepresented to the jury.

only wanted to do the right thing and there's no evidence

of anything else that he was trying to help himself, and,

lo and behold, her colleague, who was also on the earlier

Those are their notes

She said he

10

communication from Anne Swern, remember the special

11

attention, "Mark Avitto for special attention," 24 hours

12

after Ms. Nicolazzi met Avitto?

13

itself, corroborates everything that happened on June 13

14

and it was not disclosed and also serves as a stand-alone

15

violation.

16

that the Court learned about at the hearing, which I won't

17

get into.

18

That document, in and of

The EAC records are filled with other things

Another thing the People don't want to talk to

19

you about is what the standard here is.

20

reasonable-possibility standard because the defense made

21

multiple requests for impeachment material and all they got

22

was denial and silence.

23

also to what happened very shortly after Avitto testified

24

on September 22, 2005.

25

It's a

And the Court cannot avert itself

During the charge conference, Mr. Gregory gave as


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PROCEEDINGS

21

detailed a Giglio demand as any lawyer could make, asking

about what is going on with Avitto, something's going on,

and he even said exactly what they ignore, it's for the

jury to decide; what do you have?

Justice Marrus looked at Ms. Nicolazzi and said do you want

to say anything and she did.

not true.

Sam Gregory said and said, we have nothing, it's not true,

and then proceeded to give a summation denying the

10
11

What's going on?

And

And she said it's absolutely

She looked at Justice Marrus, heard everything

existence of any evidence.


So what she told the jury, in quick fashion, was

12

that what happened from June 9 for the next couple of weeks

13

simply was a guy who pled guilty in February, was sentenced

14

to a drug program, he was doing well, he came forward to do

15

the right thing sometime in June.

16

would choose to say "sometime" instead of "June 9" or not

17

fix a time.

18

believe, why wouldn't she say, when you first called the

19

police, where were you; were you in trouble?

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.

23

Interesting that she

If he was in the program like they want you to

She argued on

It doesn't make any sense.

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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PROCEEDINGS

22

scene, right down to calling it "the D.A." and she told

this Court under oath at the hearing that that was

absolutely proper; it wasn't misleading; it was accurate

because I'm the D.A., just like every 500 other ones.

if the jury would not have drawn a distinction between the

prosecutor who just met with Avitto in order to attempt to

get him to cooperate and told the judge that he was trying

to cooperate or some rookie in the courtroom.

you the jury had no right to know that; it was accurate; I

10

As

And she told

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.

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.

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.

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

It was for the jury to determine what her role

I won't get into it in too much detail, but it is

Well, it was literally accurate, so it was true, so

And given that Avitto's credibility was


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PROCEEDINGS

23

everything, they knew he was a jailhouse informant, they

knew he came forward months later, they knew he had

problems, they knew he had a criminal record longer than my

arm, they knew all this and they argued in their papers

that they submitted recently, they actually had the gall to

tell the Court that the testimony was accurate because on

June 10, Avitto called Sean Ryan, who told him to come back

to court on Monday, June 13, and he did; therefore, it was

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?

12

office.

13

Nicolazzi's

The misleading continues to this day in order to

14

save a conviction that can't be saved.

Their position is

15

untenable.

16

Ms. Nicolazzi caused Mr. Giuca.

17

it spiraled out of control.

18

evidence that Avitto was making anything up.

19

talked about why that wasn't true.

20

evidence was black and white; it's clear as day.

21

called Ryan, which demonstrated that he was being

22

responsible.

23

explained why the judge released him.

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,

That's not even the worst of the prejudice that


It was her summation where

She claimed there was no


We just

She actually said the


That he

He returned to court responsibly and that

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Nevermind the little

PROCEEDINGS

24

apparently; it had nothing to do with it.

there would be nothing to hide, there's no evidence, yet

there was evidence and she hid all of it.

that he pled months -- he pled guilty months before he

called the police, but significantly left out all the

details about it.

She claimed

She emphasized

And then, as if none of this was bad enough, she

actually hid the evidence from the defense, misled the jury

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 all

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.

16

Taylor.

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.

20

amongst other benefits, the homicide prosecutor appeared on

21

a calendar call of a witness.

22

Avitto met with them, it was right after he cooperated.

23

His liberty was very much at stake.

24

that, contrary to what Mr. Taub says.

25

The jury knew about the benefits in

The Court of Appeals still reversed it.

But it very much applies.

Same

Because in that case,

Not like Avitto.

When

Ms. Nicolazzi admitted

In that case, it was just a hearing on a calendar


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PROCEEDINGS

25

call conveying an offer from another prosecutor and the

witness said there was nothing going on.

exploited the false testimony, the misleading testimony,

and the Court of Appeals unanimously reversed for a man who

had been previously convicted of a homicide, had murdered

apparently two people in that case and shot two other

people, and the Court said that the prosecutor violated her

duty of candor and duty of fairness to the defendant.

The prosecutor

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 of

12

possible benefits.

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.

16

issue.

17

what she did, but it's not the issue.

18

conduct, for whatever reason, was overzealous, there was an

19

obsession to win, corners were cut and Giuca was

20

prejudiced.

21

That's exactly what happened here.

So

It's not the

It's unfortunately part of this because she did


The issue is her

It's as plain as day.

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.

25

went to court.

She

He was in a TAD Program, TAD, Treatment


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PROCEEDINGS

26

Alternatives for the Duly-Diagnosed.

mental illness, they knew it was drugs.

Ryan regularly.

before he testified.

Swern and David Kelly, who's the mental health guy, and

Mr. Heslin, who's the drug court guy.

Avitto's case prosecutor.

didn't talk about what's wrong with this guy?

They knew it was


She spoke to Sean

She met Avitto in a program a couple days


She had all these emails from Anne

She even spoke to

Do we really think that they

And there was a note that was sent back to her

10

from court, Mr. Taub is not accurate.

11

disclosure of one piece of paper in the file, which said,

12

send this to Ms. Nicolazzi in homicide.

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.

16

didn't want to.

17

they're talking about privacy issues and HIPAA; it's

18

another smoke screen.

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.

22

bunch of nonsense too.

23

The Court did order

Any reasonable

But she

She chose to be willfully blind and

Even when you look at the EAC

So that's a

But the worst part about these records, on top of

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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PROCEEDINGS

27

it prejudiced Mr. Giuca.

Because whether she should have

looked at the records because he was mentally ill or not or

had a drug program -- problem, excuse me, when she decided

to vouch vigorously for this man's credibility, which is

another issue entirely, when she said, quote, he was very

honest about his problems and criminal past, he freely

admitted things which he clearly isn't proud of and that

goes to his credibility as a witness, that's what she told

the jury.

That statement could not be more blatantly

10

false, obviously.

11

think they would dispute that.

12

We've all heard the records; I don't

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.

21

recklessness.

22

fair.

23

to prove that point.

24
25

They need to be held accountable for that


It never should have happened.

It wasn't

And her testimony at the hearing is the best example

She told this Court, "I wasn't interested in


Avitto's court dates."

That has got to be the most


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PROCEEDINGS

28

remarkable testimony that anybody gave at that hearing.

am the senior homicide prosecutor; I know my witness has

all these problems; I know he goes to court; hey, I even

went with him one time and told the judge; I know he's

mentally ill; I know he's a junkie; I know all these

problems; Anne Swern is telling me to pay attention to this

guy, and her testimony was, "I wasn't interested in his

court dates."

That is disgraceful.

Finally, another topic they didn't want to get

10

into is materiality.

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.

15

matter?

16

She told us at the hearing that she believed him, yet when

17

the trial started, they put him on ice.

18

a reason for that.

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

Does any of this even matter?

Again,

Well, why does Avitto

The best example is the circumstance of the trial.

There's got to be

So they decide they're going to try the

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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PROCEEDINGS

29

quote, the full story.

gentlemen of the jury, pay attention to Cleary, that's the

witness.

out.

pressured to cooperate.

every single critical detail.

there was the fiasco of whether Calciano removed evidence.

And as the case went on, look how these two came

Both of them were admitted liars.

8
9

In other words, ladies and

Both of them were

Both of them were inconsistent on


And if that's not enough,

They're talking about a meeting in which they


were both present and Albert Cleary says under oath, "I saw

10

her remove evidence," and Lauren Calciano said under oath,

11

"I did not remove evidence."

12

gymnastics, the logical gymnastics that Ms. Nicolazzi was

13

trying to do about this at the hearing, somebody lied.

14

That's obvious.

15

their witnesses.

16

Now notwithstanding the

They can't both be true.

And these are

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.

19

into logically concluding that Avitto has to matter, the

20

jury might have considered him.

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.

24

opening, when Albert Cleary got the full story, now, two

25

weeks later, when Giuca spoke to Cleary, these were partial

Without more, we're already

But the real reason is

She told the jury that what previously, in

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PROCEEDINGS

30

truths or he was dancing around the truth and it was John

Avitto that Giuca told the truth to.

Giuca was being truthful when he told Avitto.

That's what she said,

And then she said, and this is the most

compelling point of her summation that makes this open and

shut:

make sense that Russo could have done this alone.

testimony from Cleary was Russo did it alone.

testimony from Calciano was Russo did it alone.

It didn't even make sense.

She said it didn't even


And the

The
The

10

testimony from Avitto was Giuca was there and Nicolazzi

11

said Giuca was there, it didn't make sense otherwise.

12

we to believe, based on that, it might not have possibly

13

impacted the verdict in this case?

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.

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

Are

And then you add the

The

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.

25

The problem they have here is the three witnesses are all
- LKG -

That works in some cases.

PROCEEDINGS

31

over the place; none of them agree about anything.

them have clearly committed perjury based on what we talked

about earlier with Calciano and Cleary.

these other credibility problems.

essentially tosses them aside and tells them to pick one,

the honest one, the truthful one.

to conclude otherwise.

8
9

Some of

They have all

The prosecutor, herself,

So there's really no way

At the end of the day, overzealousness and an


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.

14

in a misleading way.

15

exploited it with false argument.

16

learn about their witness and they told the jury there was

17

no evidence that this guy could have possibly wanted

18

anything.

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

The guy testified

They didn't correct it.

They

They made no efforts to

They're ignoring the Court of Appeals over and

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.

- LKG -

And if they

PROCEEDINGS

32

think that John Giuca is responsible for Mark Fisher's

death, they have every right to try him, but they're

obligated to try him fairly.

and if they want to take another shot at it and they want

to use Avitto or whoever else they want to, they can.

it is clear that Mr. Giuca was deprived of a fair trial.

This conviction can't stand

Thank you.

(Whereupon people in the audience started

clapping)

10
11

But

THE COURT:

Folks, you're in a courtroom, you're

not anywhere else.

12

Counsels, approach.

13

(Off-the-record discussion held at the bench)

14

THE COURT:

15

I will adjourn this case for my decision and

Thank you, counsels.

16

everybody will make sure that defendant is produced and

17

present.

18

file a decision and I'll put certain things on the record

19

as I do so.

20
21

I'll calendar it on June 9 for my decision.

Thank you.
*

I'll

June 9.
*

22

CERTIFIED TO BE A TRUE AND ACCURATE TRANSCRIPT OF THE

23

MINUTES TAKEN IN THE ABOVE-TITLED PROCEEDING.

24

LAUREN K. GANZMAN
SENIOR COURT REPORTER

25
- LKG -