To Be Argued By: Mark A. Bederow Time Requested: 15 Minutes New Vork Supreme Court APPELLATE DIVISION — SECOND DEPARTMENT Docket No. ‘THE PEOPLE OF THE STATE OF NEW YORK, 2016-06775 Respondent, against Jou Giuca, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT Law OFFICE OF Man A. BEDEROW, P.C. Attorneys for Defendant-Appellant 260 Madison Avenue New York, New York 10016 Of Counsel: 212-803-1293 Andrew M. Stengel Kings County Clerk's Indictment No. 8166/04TABLE OF CONTENTS TABLE OF AUTHORITIES INTRODUCTION... ARGUMENT POINT I THE WITHHELD EVIDENCE MIGHT HAVE IMPACTED THE JURY’S ASSESSMENT OF AVITTO’S CREDIBILITY POINT I NICOLAZZI CONSCIOUSLY AVOIDED FAVORABLE IMPEACHMENT EVIDENCE AND FAILED TO EXERCISE DUE DILIGENCE BEFORE MAKING FALSE ARGUMENT ABOUT AVITTO’S CREDIBILITY 14 POINT II THE CONVICTION SHOULD BE REVERSED UNDER THE “REASONABLE POSSIBILITY” STANDARD POINT IV THE EAC RECORDS CONSTITUTE NEWLY DISCOVERED EVIDENCE .... CONCLUSION.TABLE OF AUTHORITIES Case Banks v. Dretke, 540 U.S. 668(2004) .... Davis v. Alaska, 415 US. 308 (1974) ... Jenkins v. Artuz, 294 F.3d 284 (2™ Cir. 2002) Kyles v. Whitley, 514 U.S. 419 (1995) ... 2,19 Napue v. Illinois, 360 U.S. 264 (1959) 2, 6, 14, 19 People v. Colon, 13 N.¥.3d 343 (2009) 11, 14, 19 People v. Conlan, 146 A.D.2d 319 (1 Dept. 1989) .. 16 People v. Cwikla, 46 N.Y.2d 434 (1979) 2,4, 14, 18 People v. MeCray, 23 N.Y.3d 193 (2014) 13n People v. Novoa, 70 N.Y.2d 490 (1987) 3, 16 People v. Taylor, 26 N.Y.3d 217 (2015) 7, 9-11, 14 People v. Vielman, 31 A.D.3d 674 (2" Dept. 2006)... 19 People v. Vilardi, 76 N.Y.2d 67 (1990) 17,19 Strickler v. Greene, 527 US. 263 (1999) 8n Su v. Filion, 335 F.3d 119 (2* Cir. 2003) 17,18 United States v. Wallach, 935 F.2d 445 (2 Cir.1991).... 17,19 Valentin v. Mazzuca, 2011 WL 65759 (WDNY 2011) ...... 17SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, App. Div. No. 2016-06775 -against- : Ind. No. 8166/2004 JOHN GIUCA, : (Kings County) Defendant-Appellant. DEFENDANT-APPELLANT’S REPLY BRIEF INTRODUCTION The People finally concede in 2017 what ADA Anna-Sigga Nicolazzi denied at John Giuca’s 2005 trial: the existence of evidence that John Avitto lied to avoid jail. Opposition Br. 68-69. Nevertheless, they argue the lower court decision should be affirmed because there is insufficient proof the prosecution provided Avitto with a benefit in exchange for cooperating against Giuca. The People are wrong.More than eleven years after they suppressed evidence and deprived Giuca’s jury from making an intelligent assessment of Avitto’s credibility, the People urge the Court to reach the absurd conclusion that Avitto, a lifelong drug addict and thief with a penchant for lying to avoid jail, became a civic-minded altruist when, shortly after he exposed himself to a prison sentence, he volunteered to provide the prosecution with months-old information against Giuca, and after the trial he morphed back into the conniving liar he was before he approached the prosecution. Rather than consider the cumulative impact the undisclosed evidence might have had on the jury’s assessment of Avitto’s credibility, the People trivialize it through a piece-by-piece analysis of the evidence in a vacuum, so the Court will overlook its context and “net effect.” See Kyles v. Whitley, 514 U.S. 419, 437 (1995). Opposition Br. 50-66. The lower court decision should be reversed because had the jury been aware of the withheld evidence, it might have concluded Avitto was motivated to accuse Giuca out of concern for his own self-interest and rejected Nicolazzi’s false premise that Avitto testified “for once, to do something right.” A. 1968-69; see Napue v. Illinois, 360 U.S. 264, 269 (1959) (“it is upon such subtle factors as the possible interest of the witness testifying falsely that a defendant’s life or liberty may depend”); People v. Cwikla, 46 N.Y.2d 434, 441 (1979) (disclosure required where impeachment material “is of such a nature that the jury could have found that, despite 2the witness’ protestations to the contrary, there was indeed a tacit understanding between the witness and the prosecution, or at least so the witness hoped”). Moreover, the withheld evidence would have been crucial to the jury because it would have exposed the falsity of Avitto’s testimony and Nicolazzi’s summation. Notwithstanding their concession that Avitto’s EAC records demonstrated his willingness to lie to benefit himself and that Nicolazzi, other prosecutors and EAC employees frequently discussed Avitto’s poor performance in his program, the People maintain they were not obligated to review them. Even worse, the People give short shrift to Nicolazzi’s conscious avoidance to evidence of Avitto’s dreadful credibility before she made patently false statements about Avitto’s excellent credibility. See People v. Novoa, 70 N.Y.2d 490 (1987). Giuca’s trial was not a search for the truth about Mark Fisher’s murder. Nicolazzi tipped the scales in the People’s favor by unilaterally and unconstitutionally controlling what evidence regarding Avitto’s credibility the jury received.ARGUMENT POINT I THE WITHHELD EVIDENCE MIGHT HAVE IMPACTED THE JURY’S ASSESSMENT OF AVITTO’S CREDIBILITY The People contend there was no Giglio violation because Nicolazzi did not play a role in Avitto’s June 13, 2005, release on his own recognizance, and he was not promised and did not receive any benefits in exchange for his cooperation.’ Opposition Br. 48-49, 65. They claim Avitto contacted detectives before he absconded from his program on June 9, 2005; therefore irrespective of Nicolazzi’s conduct, he didn’t benefit from his cooperation against Giuca. Jd. 50-58. They are incorrect. Even in the absence of an express agreement, if there existed a “strong inference, at the very least” Avitto expected any leniency, Nicolazzi was obligated to disclose evidence in her possession that could have led the jury to conclude Avitto had a motive to falsely accuse Giuca. Cwikla, 46 N.Y.2d at 441-42. The People rely on eleven-year recollections of two detectives who claimed they met Avitto at his Brooklyn program [it was in Queens, A. 2066-73, 2092-93, 2447-51, 2455, 2462, 2471] to establish Avitto contacted authorities before he ' The People claim Avitto’s failure to cite a “deal” before he received the prison sentence he sought to avoid by cooperating against Giuca proves he didn’t receive a benefit. Opposition Br. 32, 43. From the time Avitto offered to cooperate against Giuca until the end of the trial, the prosecution never requested bail, despite Avitto’s several violations. When Avitto was imprisoned in 2006, he already had benefited from his cooperation against Giuca. 4absconded on June 9, 2005.2 However, overwhelming evidence proves Avitto first contacted detectives on June 9, the same evening he absconded from his program and used drugs, which Avitto knew exposed himself to a lengthy prison sentence. Nicolazzi first met Avitto the day she appeared in court with him (June 13). A. 496- 98. Approximately three months later, in response to a demand for Rosario material, Nicolazzi told the trial court she knew detectives did not take any notes during their interviews of Avitto because she was present at every meeting with them. A. 1761. The detectives’ recollections about first meeting Avitto and Nicolazzi’s claim cannot both be true. In order to conclude Avitto met detectives before June 13, 2005, the Court must find that Nicolazzi perjured herself at the hearing or lied to the trial court regarding her disclosure of evidence obligations. Avitto’s EAC records document that after Nicolazzi and Avitto met on June 13, 2005, Nicolazzi went to court with him and told his EAC counselor that Avitto “contacted detectives” with information against Giuca on “Thur. 6/9/05.” A. 2523. It stands to reason that if Nicolazzi possessed evidence that Avitto, a jailhouse informant with an active arrest warrant, met with detectives before he exposed himself to a prison sentence, she would have presented it to the jury. She didn’t. 2 This argument is diluted by the fact Avitto knew he had an active bench warrant when he met Nicolazzi on June 13, 2005. > Avitto was wamed in court on February 8, April 28 and June 9, 2005, that his failure to comply with his program would result in a lengthy prison sentence. The last threat occurred hours before he absconded. A. 2056-70. 5Equally unpersuasive is the assertion that Avitto’s release on June 13, 2005, was a foregone conclusion.' Opposition Br. 48, 50-53, 64. In essence, the People ask the Court to take judicial notice that Nicolazzi’s appearance in court was meaningless to the jury’s assessment of Avitto’s credibility.’ Nicolazzi’s direct involvement in the events of June 13, 2005 was critical to an evaluation of Avitto’s credibility because she gave the jury the impression the jailhouse informant volunteered to testify against Giuca because he “was distressed at the gratuitous murder of Fisher and wanted to do the right thing” and she assured the jury there was “absolutely no evidence” Avitto sought or received a benefit. Opposition Br. 18; A. 1966-69. Therefore, any evidence that might have demonstrated Avitto’s motive to cooperate against Giuca, particularly the direct involvement of Giuca’s prosecutor in the events that led to Avitto’s release, should have been provided to the jury. See Napue, 360 U.S. at 270 (“had the jury been apprised of the true facts....it might well have concluded [the witness] had fabricated testimony in order to curry the favor of Nicolazzi’s and Detective Bymes” hearing testimony obliterates this argument. On June 13,2005, they warned Avitto he might be remanded. Byrnes acknowledged that he and Nicolazzi expected Avitto to be remanded. Nicolazzi confirmed that when she met Avitto on June 13, he was concerned about going back to jail. A. 373-74, 548-49. 5 The People claim the June 13, 2005, progress note which documents Nicolazzi sought Avitto’s release on his own recognizance is unreliable, even though they cite the reliability of the same counselor’s contemporaneous progress notes that immediately precede it. Opposition Br. 52-53, 57; A. 2522-23, The detailed handwritten note describes how Nicolazzi first sought to have Avitto placed in another program, but after she was told none were available, she told the court they wanted Avitto released to his mother's house. A. 2523 6the very representative of the State who was prosecuting the case in which [he] was testifying”); People v. Taylor, 26 N.Y.3d 217, 226 (2015) (homicide prosecutor's appearance on witness’ case where he faced jail but prosecutor did not seek it “has an especially strong bearing on the witness’ credibility” and suggests the witness “had a motive to testify falsely in favor of the prosecution...out of gratitude for the prosecutor's aid”). Nicolazzi not only suppressed important evidence about the circumstances that led to Avitto’s June 13, 2005, release, she also misled the jury about them. On cross examination, the jury learned about Avitto’s June 9 violation’ and the related June 13 court appearance. Avitto denied calling the police about Giuca “immediately” after he absconded and he reiterated that his own case did not influence his decision to cooperate against Giuca. A. 1746, 1750, 1752, 1756. On re-direct examination, Nicolazzi steered Avitto to say that after he left his, program he contacted EAC “on his own,” after which he and his counselor walked to court, where “he guessed” the counselor “got him another shot” during an appearance attended by an unnamed “DA.” A. 1758. Avitto gave the jury the false impression “the DA” was an afterthought at the proceeding. Nicolazzi exploited * Although Avitto admitted that he absconded from his program, he perjured himself when he denied using drugs after he left the program and before his June 13 meeting with Nicolazzi, A. 1745-47 of A. 2526 (after failing a drug test on June 15, 2005, Avitto admitted using cocaine on June 9 and 12); A. 2054. 7Avitto’s testimony by telling the jury “it’s there to see in black and white” that the court released Avitto because of his “responsible” decision to contact EAC after he left his program. A. 1966-67. ‘This extraordinarily misleading testimony and argument kept the jury from learning (1) the timing and relationship between Avitto’s program violation and his decision to cooperate against Giuca, (2) that rather than return to court on his own, Avitto met with Nicolazzi and provided information against Giuca, (3) that Nicolazzi, not his EAC counselor, escorted him to court, (4) that Nicolazzi was “the DA” who appeared in court, and (5) Nicolazzi, not Avitto’s EAC counselor “got him another shot,” by telling the court Avitto provided information against Giuca.” Nicolazzi’s gamesmanship “reinforced the false impression” that Avitto’s cooperation against Giuca was unrelated to his own legal problem and invited the jury to adopt the “natural and reasonable inference” sought by Nicolazzi’s ruse: 7 The People claim Giuca’s trial counsel could have located the June 13, 2005, transcript, and that he would not have questioned Avitto about Nicolazzi’s appearance. Opposition Br. 64. Counsel first leamed about Avitto when he received a witness list immediately before trial. Avitto was not mentioned at the trial until he testified near the end of it. Counsel had no meaningful opportunity to search for hearing transcripts under the circumstances. He properly relied on the good faith of the prosecution’s representation they had no favorable impeachment material. See Banks v Dretke, 540 U.S. 668 (2004); Strickler v, Greene, 527 U.S. 289 (1999). The People’s contention that counsel would not have used the fact that Nicolazzi appeared on Avitto’s case is inaccurate, A. 766, 769. In any event, his failure to do so would have been unreasonable. Proof that Avitto offered information to Giuca’s prosecutor while he had an active warrant, after which Giuca’s prosecutor appeared on Avitto’s case and notified the court about his assistance before he was released without bail would have been compelling support for counsel's argument that Avitto sought a benefit. 8Avitto was released because he was “responsible.” Jenkins v. Artuz, 294 F.3d 284, 294 (2"4 Cir. 2002). Nicolazzi’s calculated decision to conceal her identity from Avitto’s appearance but emphasize that Justice Marrus was not the judge who released him further demonstrated her conscious intent to mislead the jury about the relationship between Avitto’s legal situation and his cooperation. A. 1758. Indeed, she was unable to offer a coherent explanation for this distinction. A. 706 (“I didn’t give a follow-up question at that same question because I couldn’t—because it was me, but Tcould ask him specifically since he said the judge that was presiding over the trial. That is why I did that”). People v. Taylor, 26 N.Y 3d 217 (2015) establishes that Nicolazzi’s failure to disclose her appearance on Avitto’s case unduly prejudiced Giuca. Although Taylor involved a trial court’s improper response to a jury note requesting “the benefits” provided to witnesses rather than a Giglio question, the strikingly similar facts and the Court’s insistence that the jury be provided with evidence that might demonstrate a witness’ motive to favor the prosecution, make it applicable to Giuca’s case. The People concede that the Court properly reversed a murder conviction because the trial court’s failure to disclose all of the benefits requested by the jury deprived it of significant evidence of a witness’s motive to testify falsely in the prosecution’s favor. Opposition Br. 74-75. However, the People incorrectly assert 9“undisputed benefits” in the form of cooperation agreements were at issue. Id. 75. Hilton, the witness in Taylor comparable to Avitto, did not have a cooperation agreement with the prosecution. Turner, a witness not relevant here, had a cooperation agreement. Taylor, 26 N.Y.3d at 221-22. The only “benefit” at issue in Taylor was conduct virtually identical to Nicolazzi’s on June 13, 2005: the trial prosecutor’s appearance on Hilton’s violation of probation hearing where he was released after the prosecutor did not request bail. Id. at 220. Unlike Nicolazzi, Taylor’s prosecutor disclosed her appearance on Hilton’s case, which allowed Taylor to confront Hilton about the possible benefit and argue to the jury that he had a motive to testify favorably for the prosecution, Id, at 221, 226. During deliberations, the jury requested all of “the benefits” offered to Hilton and Tumer. The jury received Tumer’s cooperation agreement but not Hilton’s testimony regarding the trial prosecutor’s appearance on his case. Jd. at 222. The Court reversed because the benefits sought by the jury “necessarily included” Hilton’s testimony about the trial prosecutor’s appearance on his case. The trial court’s failure to provide Hilton’s testimony deprived the jury of evidence that “had an especially strong bearing on [Hilton’s] credibility because...it suggested that Hilton had a motive to testify falsely in favor of the prosecution at defendant's trial out of gratitude for the prosecutor’s aid.” Id. at 225-26. 10Thus, the People’s attempt to distinguish Taylor falls flat. The Court held the trial court’s failure to provide the jury with evidence of Hilton’s court appearance might have misled the jury into wrongly concluding that disclosed conduct virtually identical to Nicolazzi’s undisclosed conduct was not significant evidence of a possible benefit. /d. at 227. Taylor was reversed even though the jury received the evidence and the prosecutor did not mislead the jury; Nicolazzi intentionally kept Giuca’ jury ignorant through her wholesale suppression of the same evidence. It makes no sense that Taylor, but not Giuca, could have been unduly prejudiced. Nicolazzi’s disregard for her duty of candor “exacerbated the prejudice” caused by her failure to disclose the circumstances surrounding her appearance on Avitto’s case. People v. Colon, 13 N.Y.3d343, 350 (2009). In Colon, the prosecutor failed to correct the testimony of a witness who misled the jury by denying that he received benefits, when, among other things, the trial prosecutor had appeared on his case and conveyed an offer made by another prosecutor. Jd, at 349. The Court reversed a double murder conviction, holding that in addition to failing to correct the witness’ inaccurate testimony about “the benefits received,” the trial prosecutor “compounded” the error by “repeating and emphasizing the misinformation during summation.” Id, at 349-50. This is precisely what Nicolazzi did with respect to Avitto’s testimony. See A. 1966-69.Additional undisclosed favorable impeachment material corroborates the June 13, 2005, evidence. On June 14, 2005, Executive ADA Anne Swern directed Nicolazzi, David Kelly, David Heslin (the DA’s mental health and drug court supervisors, respectively), EAC director Lauren D’Isselt and other EAC supervisors to flag Avitto’s mundane case for “special attention.” A. 2048. On June 16, 2005, during a conversation with an EAC supervisor regarding Avitto’s rampant drug use and noncompliance with his program, Kelly memorialized that “Avitto turned himself into the DA's Office and he has info on a murder case and he was not remanded.” A, 2054 (emphasis added). On June 17, 2005, D’Isselt confronted Avitto about his poor performance and warned him that EAC “would be in direct contact with ADA Anna Nicolazzi and Patricia MeNeil [Nicolazzi’s co-counsel on Giuca’s case] and that EAC had the full support of [Giuca’s prosecutors] on any decisions made on behalf of [Avitto] by EAC.” A. 2528. On two occasions shortly before Avitto testified, he was released after he violated his program specifically because of his upcoming testimony against Giuca. A. 2547, 2549.° "Nicolazzi swore she was unaware of Avitto’s violations even though his EAC counselor notified her the same day they occurred and they spoke frequently before Avitto testified. A. 2548, 2550. She remarkably claimed she “never kept track of [Avitto’s] court dates,” even though a high- ranking executive in her office directed her to monitor Avitto at least three times after June 13, 2005. A. 610 cf, A. 2048-49, Her apparent failure to do so resulted in Nicolazzi allowing Avitto to testify he was “doing good” in his program even though she knew or should have known three days earlier he had been expelled from his rehab facility and castigated by the court for his “not good” performance, A. 2084-87. 12The People assert this “innocuous” evidence doesn’t “even suggest” Avitto’s June 13, 2005, release was related to his cooperation against Giuca.”” Opposition Br. 58-61. The Court should reject the People’s substitution of their interpretation of the evidence in place of Giuca’s jury, which was denied the fair opportunity to consider this evidence years ago. In any event, the People’s conclusion is delusional. If the jury knew that after he exposed himself to a lengthy prison sentence, Avitto “turned himself into the DA’s Office” with information against Giuca and was not remanded after Nicolazzi notified the court about his effort to help the case against Giuca, that after he met Nicolazzi, he immediately became the subject of “special attention” by the DA’s Office and EAC, and that the EAC director warned him that she would speak to Nicolazzi regarding his possible remand, at the very least, it is possible the jury would have believed Avitto was biased in favor of the prosecution. Just as importantly, had Avitto been confronted with the undisclosed evidence, his misleading testimony would have been exposed and the veil of secrecy cloaking Nicolazzi’s identity as “the DA” who appeared in court with him would have been lifted. In these circumstances, the jury might have concluded that Avitto’s ° The People claim Kelly’s note is not Giglio material because it contains hearsay. Opposition Br. 58. Inadmissible evidence “that will be useful to the defense, perhaps as a lead to admissible evidence or a tool in disciplining witnesses during cross examination” must be disclosed. People ¥. McCray, 23 N.Y.3d 193, 199-200 (2014). 13concealment of Nicolazzi’s direct role in the events that led to his release further demonstrated his selfish motive for cooperating against Giuca. Accordingly, the People’s misleading presentation and nondisclosure of evidence that “had an especially strong bearing” on Avitto’s credibility and which created the “strong inference” that Avitto was biased in favor of the prosecution, violated Giuca’s right to due process. Taylor, 26 N.Y.3d at 226; Cwikla, 46 N.Y.2d at 442; see Napue, 360 U.S. at 269-71; Colon, 13 N.Y.3d at 348-50; Davis v. Alaska, 415 U.S. 308, 317 (1974) (“jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on [the witness’s] testimony...”). POINT IE NICOLAZZI CONSCIOUSLY AVOIDED FAVORABLE IMPEACHMENT EVIDENCE AND FAILED TO EXERCISE DUE DILIGENCE BEFORE MAKING FALSE ARGUMENT ABOUT AVITTO’S CREDIBILITY The People claim they had no duty to review Avitto’s EAC records because he didn’t exhibit obvious symptoms of mental illness. Opposition Br. 67. However, Nicolazzi consciously avoided learning about the favorable impeachment evidence in them. From June 13, 2005, until Avitto testified, Nicolazzi, other prosecutors (including two with expertise in mental health and drug court) and EAC personnel were in regular contact with Avitto and each other regarding his mental illness and drug abuse. Opening Br. 38-40.Avitto’s right to privacy does not excuse the People’s failure to review his EAC records. Opposition Br. 66-67. He volunteered to be a witness, freely discussed his mental health and drug problems with Nicolazzi, and executed a HIPAA waiver before he testified. A. 480, 509-12, 1730-31, 1759-60, 2548. Giuca’s fundamental right to confront Avitto about his possible bias was “paramount” to Avitto’s right to privacy. Davis, 415 U.S. at 319. If the prosecution was so concerned about Avitto’s privacy," they shouldn’t have used him as a witness. Id. at 320. Assuming, arguendo, Nicolazzi wasn’t required to review Avitto’s EAC records, such a duty arose before she made demonstrably false statements while pervasively vouching for the credibility of a lifelong criminal she knew previously lied to authorities to avoid jail, and who was exposed to a lengthy prison sentence when he volunteered to help her case against Giuca. A. 1728. Nicolazzi asserted there was “no evidence” Avitto was lying or that he was “willing to say anything because he’s trying to help himself,” there was “absolutely no evidence, no evidence at all [that Avitto received consideration] and “no corroboration” to the defense claim Avitto was self-interested, She assured the jury “everything” the “truthful” Avitto said was credible, and she implored the jury to “trust” him. Nicolazzi vouched for Avitto’s candor; he was “very honest about his ® Nicolazzi placed Avitto’s drug abuse, mental illness, need for medication and his childhood sexual abuse into issue. A. 1725, 1731, 1759-60, 15problems and criminal past. He freely admitted things he clearly isn’t proud of,” which demonstrated his good credibility. A. 1956-57, 1966-69. At the same time Nicolazzi vouched for Avitto’s eamestness, she chastised the defense for speculating about Avitto’s self-interest and “condemning” him for his sincerity. She outrageously argued that in order to believe the “uncorroborated” defense claim that Avitto was self-interested, the jury had to find the existence of a conspiracy involving the prosecution, police and the court. As if reading from a Katka novel, Nicolazzi ridiculed the defense for failing to produce the very evidence she suppressed and denied existed. A. 1966-69. Now, more than a decade into Giuca’s life sentence, the People admit what Nicolazzi adamantly denied: Avitto was a self-interested liar. Opposition Br. 68- 69 (Avitto’s EAC records “indicated that Avitto was willing to feign a mental disorder. ..to achieve a benefit for himself. ..”); see id. 38, 45; see also, A. 2289 (less than three months before he sought to cooperate against Giuca, Avitto rationalized lying to get out of jail: “I had to do what I had to do to change my situation”). Nicolazzi’s failure to make “obvious” and “appropriate” inquiries about the credibility of a self-interested jailhouse informant before she misled the jury about his credibility was a flagrant due process violation. Novoa, 70 N.Y.2d at 497-98; see also, People v. Conlan, 146 A.D.2d 319, 331 (1* Dept. 1989) (“t is certainly not reasonable to conclude that a career criminal...would agree to assist the prosecution 16merely as a sign of good will or because he had taken an aversion to defendant’s boasting in prison. ..it required the trial prosecutor almost willfully refuse to confront reality to have imagined [the jailhouse informant] was taking the stand simply out of a concern for the public welfare”); Su v. Filion, 335 F.3d 119, 127 (24 Cir. 2003) (prosecutor has a “fundamental obligation to determine” facts before making inaccurate summation); Valentin v. Mazzuca, 2011 WL 65759 at 17-18 (WDNY 2011) (“[o]strich-like behavior on the part of the prosecution is not tolerated by Brady and its progeny”). POINT UL THE CONVICTION SHOULD BE VACATED UNDER’ THE “REASONABLE POSSIBILITY” STANDARD Reversal is “virtually automatic” because the People’s “two case” strategy makes it at least reasonably possible jurors deemed Avitto’s inaccurate testimony essential to the conviction. Opening Br. 5-13, 42-47; People v. Vilardi, 76 N.Y.2d 67 (1990); United States v. Wallach, 935 F.2d 445, 456 (2™ Cir. 1991). Lauren Calciano and Albert Cleary contradicted each other regarding every critical detail of Giuca’s purported confession, other than alleging Giuca was home when Fisher was killed—which Nicolazzi claimed didn’t make sense. A. 1531-33, 1962-63. Calciano’s and Cleary’s sparring from the witness stand over whether Calciano tampered with evidence proved at least one of them committed perjury. A. 1255 of 7A. 1513, 1528, 1552, Both lied to the police for more than one year before they succumbed to extensive pressure and alleged (inconsistently) that Giuca confessed to his role in the crime. A. 1251-53, 1262-63, 1521-27, 1585. Avitto, on the other hand, was portrayed by Nicolazzi as an honest man who testified out of sympathy for Fisher. She described Avitto as Giuca’s “confidante” and the one person Giuca told the truth: Giuca was a direct participant in the crime. Nicolazzi’s rejection of the theory that Antonio Russo killed Fisher alone (“it didn’t even make sense”) in favor of Avitto’s version (which “ma[de] much more sense”) demonstrates the impact Avitto’s testimony must have had on the jury. A. 1962-63. The cumulative impact of the withheld evidence severely prejudiced Giuca."! ‘A. 1966-69, Had the jury known of Nicolazzi’s complicity in misleading the jury about Avitto’s obvious motive to falsely accuse Giuca, it would have had a “devastating” impact on the jury. Su, 335 F.3d at 129 n, 6; see Jenkins, 294 F.3d at 295 (there is a “heightened opportunity for prejudice when the prosecutor, by action or inaction, is complicit in the untruthful testimony”); see also, Cwikla, 46 N.Y.2d at 442 (misleading and obstructive tactics by a prosecutor strengthen the inference that the witness expected leniency). Because the undisclosed evidence, at the very “The People argue Giuca was not prejudiced by the nondisclosure of the favorable impeachment material because Avitto was cross examined extensively about his criminal background and drug use. Opposition Br. 45-46. Avitto’s criminal background was not in dispute; the critical issue was his possible bias. See Davis, 415 U.S. at 316 (credibility attack on a witness’ criminal record is less impactful on a witness’ credibility than an attack that exposes possible bias). 18least, would have shown Avitto was hardly a disinterested witness who volunteered to testify against Giuca “for once, to do something right,” reversal is “virtually automatic.” See Napue, 360 U.S. at 269; Kyles, 514 U.S. at 436-37; Colon, 13 N.Y.3d at 349-50; Vilardi, 76 N.Y.2d at 77; People v. Vielman, 31 A.D.3d 674, 675 (2 Dept. 2006); Wallach, 935 F.2d at 456. POINT IV THE EAC RECORDS CONSTITUTE NEWLY DISCOVERED EVIDENCE The People claim that because Avitto’s EAC records prove he was a self- interested liar rather than that he suffered from severe mental illness, they are merely impeaching and not newly discovered evidence. Opposition Br. 77-79. The irony of their argument encapsulates the serious flaws with this case. Avitto’s EAC records contain numerous observations of doctors regarding his serious and persistent mental illness, which the defense could have used to challenge Avitto’s ability to perceive or recall events, including but not limited to, his disorientation to time, his severely impaired judgment, that he suffered from mania, his limited insight, his poor short term memory, and that he frequently was prescribed Seroquel, a psychotropic drug that treats schizophrenia, mania andhallucinations, for his mental illness. Opening Br. 20-21, 49-51; A. 2256, 2259- 66, 2275-76, 2284-87, 2314, 2369, 2501. CONCLUSION For the foregoing reasons, the order of the court below denying John Giuca’s C.PLL. § 440.10 motion should be reversed, the motion should be granted, Giuca’s judgment of conviction should be vacated, and a new trial should be ordered. Respectfully submitted, [ARK A. BEDEROW 260 Madison Avenue ‘New York, New York 10016 212.803.1293 917.591.8827 (fax) mark@bederowlaw.com Andrew M. Stengel Of Counsel DATED: New York, New York May 5, 2017 ® Avitto perjured himself when he claimed he was prescribed Seroquel as a sleeping pill. A. 1751- 53. Rather than correct this false testimony, Nicolazzi exploited it. A. 1759-60. 20CERTIFICATE OF COMPLIANCE This brief was prepared in compliance with the Supreme Court of the State of New York, Appellate Division, Second Judicial Department’s Rules of Procedure § 670.10.3. This brief was prepared on a computer in Times new Roman typeface, point size 14, double line spacing, and has a word count of 4,764. Dated: New York, New York May 5, 2017 A A. CM Esq.