1

1 SUPREME COURT OF THE STATE OF NEW YORK

c COUNTY OF KINGS: CRIMINAL TERM : PART 19

3 THE PEOPLB OF THE STATE OF NEW YORK

INDICT. NO.
4 against 8L66 / 2004

5 JOHN GrUCA/

6
_:::::31i1:_____ ______x
1 320 Jay Street
BrookJ-yn, New York
R
February 20, 2078
9
BEFORE HONORABLE DANNY K. CHUN
10 Justice of the Supreme Court
11

T2 APPEARANCES
13
ERIC GONZALEZ, ESQ.
I4 DTSTRICT ATTORNEY - KINGS COUNTY
for the People
15 350 Jay Street
Brooklyn, New York 1720I
16
BY: JOSEPH ALEXIS, ESQ.
I7 LEONARD JOBLOVE, ESQ.
And MELISSA CARVAJAL, ESQ.
1B Assistant District Attorneys
1,9
MARK BBDEROW/ ESQ.
20 Attorney for the Defendant
752 west 57th Street
2L New York, New York

22 BY: MARK BEDEROW, ESQ.

And ANDREW STENGBL, ESQ., of Counsel_
23

aA
LA Dell- Ashby
Official Court Reporter
25
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1 THE COURT CLERK: Calling number three on the part

2 L9 calendar, indictment 8166 of 2004, John Giuca.
3 Appearances, please.
4 THE COURT: One second.
q (Whereupon, there was a pause in the proceedings. )

6 MR. ALEXIS: Joseph Alexis, Leonard Joblove and

1 Melissa Carvajal for the Office of the District

o Attorney. Good afternoon.

9 THE COURT: Good afternoon.

10 MR. BEDEROW: For Mr. Gi-uca, Mark Bederow,

11 B-E-D-E-R-O-W, I52 West 57th Street. Good afternoon,

L2 your Honor.
\
,f
13 THE COURT: Good afternoon.
L4 MR. STENGEL: Andrew Stengel, S-T-E-N-G-E-L, of
15 counsel. Good afternoon, your Honor.
T6 THE COURT: Good afternoon.
I1 Before the defendant is brought out, there has been

18 a request from the press to be al-l-owed to photograph the

79 proceedj-ngs. At this point, dt this juncture, the case
20 has been remanded for trial so the presumption of
2L innocence applies and itts up to defense counsel in this
22 courtroom and the defendant.
23 So, what is your pos ition?
24 MR. BEDEROW: We dontt oppose it.
tq THE COURT: Okay Then you can photograph the
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1 proceedings.
2 Al-1 right. Defendant is present and if he prefers
3 he may be seated. You can uncuff him.
4 Awhil-e back, I held a hearing on defendant's motion
J
tr
to set aside the judgment and I denied that motion with
6 my decision. And defendant appealed that decision and

7 the Appellate Division having heard the appeal reversed

8 this court and granted the application to set aside the
9 judgment and put the matter back here for a new trial_.
10 People.
11 MR. ALEXIS: May I approach, your Honor?
1"2 THE COURT: Yes.

13 MR. ALBXIS: I mean the I didnrt mean the bench,

14 f meant the (Indicating)
15 THE COURT: Yes.

L6 MR. ALEXIS: Good afternoon, everybody.

71 Your Honor, I would like to address two matters
1B today. The first is to inform this court and counsel
L9 pardon my back that we filed an application for l_eave

20 t.o the Court of Appeals from the order of the Appellate

2t Division that vacated the judgment of conviction in this
22 case.
23 The second matter is to ask this court to continue
24 remand with respect to the defendant at this time
25 pendlng further proceedings. Now, we're making this
 4

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1 request for remand in light of the particular

2 circumstances of this case. So, I wil-I say a bit more

3 to explain the reason for our request.

4 This court l-s completely familiar with the facts
5 and the history of this case so I won't bel-abor them.
6 But, I will- start with the Appel-l-ate Division's recent
1 order.
8 By vacating the conviction, the Second Department
9 ordered that this matter be sent back here for a new

10 trial. The indictment still stands. There has been no

11 finding of j-nnocence so defendant stands as a man
T2 charged with Murder 2 before trial-.
13 The defendant faces the prospect of conviction of
I4 Murder 2 and a prison sentence of twenty-five years to
15 l1fe in one of two ways:
L6 Firstr w€fre pursuing an application for permission
I1 to appeal to the Court of Appea1s. If werre successful
1B in the Court of Appeals, the defendant's conviction
19 woul-d be reinstated and the defendant would continue
20 serving his sentence.
2L But, second, even if we're unsuccessful in the
22 Court of Appeals, then in that event the defendant would
ZJ still face the prospect of murder in the second degree
24 at a new trial-.
25 The defendant shoul-d be remanded in light of the
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.\
1 significant prison sentence that he faces either as a
2 result of the Peop1e's appeal to the Court of Appeals or
3 as a result of conviction and a retrial.
4 Now, we know that there is a chance that the Court
5 of Appeals may decl-ine to hear the case. Or, the Court
6 of Appeals may decide to hear the case and uphold the
7 Second Departmentfs ruling. So, in addition to pursuing
I
an appeal to the Court of Appeals were presently
9 assessing the viability of a retrial-.
10 We ask to be given a reasonable amount of time to
11 evaluate where we stand with witnesses and evidence, and
L2 we ask to return in four months to update the court and
13 the defense as to the viabllity of a retrial.
T4 By that time, it's al-so possible that our
15 application for permission to appeal to the Court of
L6 Appeals will- have been decided. At that time, the court
I1 can reassess whether ball- shoul-d be appropriate in liqht
18 of both the status of our application for permission to
I9 appeal and our report to this court regarding the
20 viability of the case for retrial.
2I This is a matter that has been before several_
22 different courts that have issued several- different
23 rulings, which is why we find it prudent to be pursuing
24 our appeal to the Court of Appeals.
,q Thank you very much, your Honor.
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1 THE COURT: Counsel.

2 MR. BEDEROW: Good afternoon, your Honor. Today is

3 day 4r806 of John Giucats incarceration. And the
4 circumstances have changed dramatically since he was
q
remanded for trial- on December 2L, 2004. The case
6 against him has been reduced to rubble and he stands
7 before this court presumed innocent.
B Mr. Al-exis has indicated the two options that the
9 People are going to try to salvage this case, by arguing
10 that they hope to successfully appeal or retry the case.
11 But, j-t's important that we discuss a tittle bit the
L2 viabil-ity of those options. And with al_l due respect to
)
13 them, itrs virtual-ly certain theyrre going to fail_ if
T4 they even get leave granted in the Court of Appeals.
15 And I don't bel-ieve they ever will retry this case for a

1,6 couple of reasons which f 'm goj_ng to get into.

T7 First, regarding the appeal. They have di_scussed
1B nothing to your Honor about why they believe that their
I9 Iuck in the Court of Appeals wil_l be any different than
20 it was in the Appellate Division. The first matter is
2I the opinion of the Appell-ate Division was unanimous and
22 j-t was unequivocal. They concluded, deliberately or
23 not, that the former prosecutor on this case, Nicolazzi,
24 el-icited false testimony; she faited to correct fal_se
25 testimony; she exploited false testimony in her
 1

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1 summation; and she suppressed numerous items of Brady

2 material.
3 The opinion was so strong, conclusive and supported
4 by binding Court of Appeals precedent that the Appellate
5 Divisi-on did not even consider some of the other matters
6 that the court may recall rel-ated to John Avittors
1 psychiatric records and newly-discovered evidence, and

B didnrt need to because they unanimously concluded that

9 they used fal-se testimony and they violated Mr. Giuca's
10 due process rights to Brady.
11 Al-1 of the authority in the Appell-ate Division
L2 decision is unanimous Court of Appeals precedent which
\
13 specifically addresses the prosecutorrs obligation to
L4 use accurate testj-mony, to correct false testimony, to
15 disclose impeachment evidence, and also regarding a

I6 prosecutorrs obligations when he or she appears on a

t1 witness's case and they are released pending trial-.

1B The case law is cl-ear. It was Colon, CwJ-kla,
1,9 Steadman, Novoa and Taylor. That is all- unanimous Court
20 of Appeals precedent. There is literally not a

2I dissenting opinion of any of those that is going to

22 support what they're going to do.
23 Now, there are some critical- points of the ruling
24 which I think they conveniently fail-ed to menti-on, as

25 wel-1. Critical arguments that were made before your

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1 Honor and by the People in the Appellate Division

Z relating to the lack of an express agreement between the
3 district attorney and John Avitto. And they as part of
4 that argued that Avittors hearing testimony was
q
critical.
6 The Appell-ate Division has made it clear, the lack
7 of an express agreement doesntt matter. John Avi-tto' s

o hearing testimony which I said to your Honor back in

9 2016 was not credible, we understand that, doesnrt
10 matter. They accepted Your Honor's credibility findings
11 regarding the testj-mony of every witness in the case and
I2 they still ruled unanimously that Mr. Giucafs due

13 process rights were violated.

L4 The second critical point of the opinion is that
15 reversal was on the facts and the l-aw. And that is
16 significant in terms of the likelihood that. this case is
L1 ever going to make it to the Court of Appeals.
1B The factua1 findings made by the Appell-ate Division
I9 must be accepted. And they made factual- conclusions
20 that undermine many of the central- tenets, excuse me/
2I that they argued before your Honor.
22 For example, they concluded that John Avitto
23 violated his program on June 9, 2005, and that evening
24 immediately went to cal-1 the police to cooperate against
25 Mr. Giuca. They argued adamantly at the hearing and in
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l
the Appel-late Division that that wasnrt the case. The

Appellate Division found to the contrary. That issue is

out of the case.
They also found that prior to appearj-ng on the case
and notifying Judge Parker at the time of Avitto's
cooperation, that Nicolazzi dj-scussed with Avittors
counsel-or speci fically the possibility of staying with
his mother and seeking a program rather than going to
jail. That issue is out of the case.
They conclusively determined that Avitto was

performing poorly in his program and that every time he

viol-ated that he was let go. And that on at least one

J
occasion after June 13, 2005, which was the day
Nicol-Iazi appeared with Avitto, that the court was told
about his upcoming testimony.
So, the issue in the l-ower court with respect about
people getting second chances and thatrs not benefit
because everybody gets rel-eased, that issue is
foreclosed to them.
The other thing that they found is that executives
at the D.A. rs office specifically instructed Avitto's
counselor to mark him for special attention and keep
them informed about Avittots progress in the program.
That was somet.hing else that they ignored. And most
importantly, the Appel-l-ate Division found every fact
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1 that f have just described to your none of them were

2 disclosed to the defense.
3 These conclusive facts undermine everything they
4 possibly coul-d say on appeal. This was all litigated in
5 the Appel-l-ate Division and they swiftly returned an
6 unanimous reversaf.
1 Finally, regarding their chances of getting Ieave,
o we have to consider the climate that their feave
9 application is going to be in regarding seeking a

10 reversal. Itrs only been a couple of months since the

11 chief judge of the Court of Appeals issued a standing
1,2 Order that every trial judge now specifically tell the
13 prosecutor on every case that you have to be diligent
T4 about Brady and due process, including evidence that
15 "impeaches" the credibility of witnesses, that it ought
1,6 to be discl-osed.
t1 That Order by the chief judge of the Court of
18 Appeals is precisely what Nicol-Iazt did not do at Mr.
I9 Giucars original trial- and testified at the hearing that
20 she had no obligation to do. I don't think with respect
2L that the Court of Appeal-s will l-ook favorably upon a

22 re-litigation of that l_ssue.

z5 Now, regarding a possible retrial, there are a

24 couple of issues right out of the gate which the court

25 shoul-d consider. And the first is they're going to have
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1 a double jeopardy problem on a very important

t consideration in this case and that goes to an

3 intentional- theory of murder. And that count was

4 dismissed by Justice Marrus after an application for a
q
trial- order of dismissal- and during the charge
6 conference. He never submitted an intentional_ theory of
1 murder to the jury after a motion was made by
o Mr. Giuca's trial counsel and over the ob;ection of the
9 prosecutor.
10 And this is significant because under CPL 300.40,
11 subdivision -l I every count not submj-tted to the jury is
I2 deemed to have been dismissed.
13 Now, why does it matter that they canrt try Mr.
L4 Giuca for an intentional- murder? It's because in order
15 to prove a felony murder, which is what they're stuck
L6 with, theyrre going to have to prove that Mr. Giuca was
I7 apparently involved in a robbery. And the question
18 becomes how are they going to do that in light of the
I9 status of the case which is as fol-lows:
z.u At trial-, a witness, Laurie Cal-ciano (Phonetic)
2T testified that Mr. Giuca said somethj-ng about a robbery.
22 As the prosecution knows, she recanted under oath with
23 the assistance of counsel.
24 The only other witness who made some kind of
25 argument that Mr. Giuca acknowl-edged anything to do with
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1 the robbery was John Avitto. And I don't think that any
2 of us need to discuss any further the l-ikel-ihood that
3 John Avitto will ever testify in this courtroom ever
4 again.
5 So, the witness they're l-eft with is somebody named

6 Albert Cleary and thatts all- they have. And the problem
7 is Justice Marrus disnissed a murder case based on his
o testimony which only supported an intentional theory of
9 murder.
10 Albert Cleary, as the court may recall, alleged any

11 number of things. That Mr. Giuca gave Antonio Russo a

I2 gun and ordered him to show Mark Fisher what's up.
13 That's got nothing to do with a robbery or a felony
L4 murder.
15 He al-so made some kind of testimony about we need
t6 gang credibility and we need to kilI someone in order to
T7 boost. street credibility. That has nothing to do with a

1B robbery. If that were bel-ieved, which it didn't even

T9 make it to the jury, that would have supported an

20 intentional theory of murder.

2I And the last thlng that Albert Cleary testified was

22 about Mr. Giuca apparently being so angry that Mark

23 Fisher sat on a table in his house that he disrespected
24 him. None of this has anything to do with a robbery.
z-J So, theyrre going to be attempting to put a square
 13

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1 peg in a round hole if they proceed only with Albert

2 Cleary because his testimony unless he should change it
3 agaj-n, which I want to get into in a minute, regarding
4 his credibility, it simply does not support the charge
5 before the court.
6 Now, Clearyrs credibility if they somehow get past
7 this and are willing to retry the case, this is a guy

B who denied knowing anything about this homicide over the

9 course of several police interviews for more than a year
10 until- he was threat.ened by the prosecutors as he said at
11 trial and relented, and then claimed that Mr. Giuca told
I2 him he did this, which was a simil-ar theme with every
13 witness in the case other than Avitto.
L4 But, C1eary did something different that no one
15 el-se did and it speaks to his l-evel- of deviousness, and
L6 if he's a witness at a retrial- wil-1 absolutely destroy
11 his credibility. In the summer of 2004 when he was
18 denying knowing anything about this case, he and his
L9 Iawyer went out on their own and sought a polygraph
20 examination on his own. And he apparently "passed" a

2L polygraph test saying I dontt know anything about the

22 murder of Mark Fisher and Itve told the police the truth
23 about this murder. And this actually came out at trial
24 but without the resul-ts of the polygraph.
25 The prosecutor actually brought out the fact and
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misled the jury in the first trj-al that he had taken a

polygraph. But, the poi-nt is it demonstrates how

devious a l-iar this man possibly is. And f don't

believe that this prosecutor's office is going to take a

witness like that given everything that has already

happened in this sorry case, and put him on the stand,
and say that after going through al-I of that, after
being threatened, he somehow told the truth.
He also regarding his credibility
-- and this is
extremely damaging directly to the important part of his
testimony, it out at the first trial that he
came

testified in the grand jury that somebody other than

)
Mr. Giuca had told Mark Fisher to get off the table and

had disrespected him. And at trial, fo and behold, he

claimed that he remembered the night before he

testified, he remembered that in fact it was Mr. Giuca.

And you know when he remembered that? When he met with
Nicol-Iazi the night before trial. I dontt believe in
Iight of everything that has happened in this case that
theyrre going to proceed to use that witness to try to
fit the square peg into a round hole.
The other thing is he repeatedly changed testimony
about other things and this is going to be proven at a

retrial through phone records, through witnesses, and

"J
it's going to establish that he and another witness that
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1 the prosecution cal-l-ed in order to support critical

2 portions of his testimony lied to the police and misl-ed
3 the jury in a manner designed to harm Mr. Giuca.
4 That witness, her name is Angel DiPietro. She is
5 currently an assistant district attorney in the D.A.'s
6 office. When she testified at trial the first time,
1 none of this came out about problems with her testi-mony,
H problems with what she told the police, and how it's all
9 contradicted by witnesses, phone records and other
10 evidence. And I don't bel-ieve the Brooklyn District
11 Attorneyrs office is going to put their own employee

72 that they've known about these facts for several years

)
13 as a witness in this case
I4 FinalIy, with respect to Cleary, the trial
15 prosecutor for reasons perhaps we'l-l- never know ignored
76 significant evidence from which she was personally aware
L7 that does not jibe with Albert Cleary's testimony and
18 will be fatal to a ret.rial. And that involved witnesses
79 who live near the murder scene.
20 At the first trial-, very curiously, the only
2T witness from that neighborhood that Nicol-azzi cal-l-ed was

22 a man who cal-l-ed 9LI but saw nothi-ng else and heard
23 nothing else. What she ignored were several other
24 witnesses who spoke to the police who lived in the house
25 where Mark was found and the next door neighbor.
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I And what they the combined effect of their

testimony makes it clear that a young woman was present
at this murder scene; that other men were at this scene;
and that a car was used as part of this homicide.
Several people heard car doors open and close, and go
down the street. A next door neighbor claimed they saw

the car come right out of the driveway where Mark was
found.
Now, there is going to be evidence at a retrial-
that Cleary and DiPietro claim that they were at Albert.
Cleary's house when thi s murder happened which happens
to be right across the street from where Mark was shot.
)
Not across from Gj-ucaf s house, across from Clearyts
house. And they cl-aim that they heard nothing because

they were sleeping, even though they repeatedly changed

the time they had l-eft Mr. Giucars house and arrived
home.

The evidence is going to show at a retrial if they

pursue this that the next morning several- hours after
the murder, that Cleary and DiPietro for some reason
decided to cl-ean Albert Clearyrs garage and then spend
the day in Long Island with DiPietrots father who is a

weII-known criminal- defense attorney before coming back

j to Brooklyn.
The evidence will show that she and Cleary were not
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1 truthfu1 and that they were not cooperative with the

2 police. And that's all going to come out.
3 Now, a reasonable inference can be drawn based upon
4 the presence of a young woman and other people at this
5 scene, and the car being heard and seen by the neighbors
6 that that probably happened even though that's not what
1 Albert Cleary would say -- will say.
I Furthermore, this murder was five shots. Thatts
9 forensic testimony. Nobody is going to dispute that.
10 Itrs al-so been proven that the police arrived and
11 secured the crime scene within two minutes, but they
L2 only found two shell casings. There are three missing
)
13 shell casings. And this was just one of those facts
14 which apparently disappeared during the first trial-.
15 They had to have gone somewhere in a few minutes and I
T6 think a reasonable inference witl be drawn by any finder
11 of fact that theyrre in a vehicle and Albert Cleary' s

1B testimony would just not make any sense.

19 AIl of this contradicts Cleary's emphatic cl-aim
20 that Mr. Giuca told him, allegedly, that Antonio Russo

2L on his own laid in ambush for Mark Fisher and shot him
22 by himself.
z3 The last point about switching to Cleary, there
24 just has to be a sense of fairness about this. In
25 Mr. Giuca's first trial-, they pulled Avitto like a
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rabbit out of the hat at the last minute. They never

talked about him during the trial- until_ everything fell
apart.
And then in the summation what the trial prosecutor
saj-d, it didn't even make sense that Mark Fisher coul-d
have been murdered by one person by himself. She l_ooked
at the jury and told them it didnrt even make sense and

Mr. Giuca had to have been there.

And I think it's disgraceful if they're going to
come back before this court and retry the case and say
oor flor flor because Albert C1eary told us that he was

1
alone that thatrs really what happened. There has to be
I
a sense of fairness here and I think that shoul-d factor
into the courtrs decision.
The bottom line is a case that is going to be
centered on Al-bert C1eary and Angel DiPietro is a loser;
there is no question about that.
Finally, in the early stages of this investigation,
your Honor, from October of 2003, until the wlnter of
2004, this was a high profile investigation.
Mr. Giuca's name was in the newspaper al-I the time.
Everybody knew where he lived. He was even arrested in
October of 2003 before they had to let him go because
\
I
they had no basis to arrest him then either.
The bottom lj-ne is what did he do? He got up, he
 I9
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1 hung around and everyday he went home. He never fled.

2 He never tried to leave. And he has no incentive to do

3 that anymore because we bel-ieve in a short period of

4 time hets gonna be free anyway. And he has every
6 incentive to fight this case.
6 Now, thatrs in contrast to the codefendant, Antonio
7 Russo. What did he do in October of 2003?

B THE COURT: Confine yourself to your cl_ient.

9 MR. BEDEROW: Judge, he has no incentive to fl_ee.
10 This has been a thirteen-year odyssey. There is no

11 reason that he should be held.

t2 And the prosecutor, frankly, has offered no reason
13 other than, well, it's a murder case. As if the
1_4 reversal- didntt happen. As if the unanimous opinion was

15 not a strong one. As if the evidence against Mr. Giuca

1,6 is somehow overwhel-ming. They just want to reverse the
11 clock like this is a bail argument in 2004. This man

18 has been in prison over thirteen years based on this.

L9 There is no path to victory for the D.A. here and

20 this is a critical- point. They've come in here and

2t asked you to remand him and have asked for a reasonable

22 time. And they're telling you four months of remand on
23 this case with where it stands right now is reasonabl_e?

24 This man is going to be free in the near future.

25 And to kick the can down the road for four months
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1 because they figure the Court of Appeals is going to

2 take some time to deny leave, and then come back here
3 and say we want -- we need more ti-me to consider a

4 retrial-, it's not just, it's not just.

5 Bail- should be reasonable. The circumstances have
6 changed dramatically. And quite frankly, they're not
7 enti-tl-ed to the benefit of the doubt anymore. They had
B the benefit of the doubt in 2004 when they saw his
9 remand. They had the benefit of the doubt at the
10 hearing before your Honor. And they had the benefit of
11 the doubt at the Appell-ate Division.
72 But, the circumstances have changed. We have the
13 high ground. And itrs virtually certain that werre
L4 going to prevail.
15 I woul-d certainly ask that the court rel-ease
16 Mr. Giuca on his own recognizance with an ankl-e
!1 bracelet. Or, in the alternati-ve, if the court believes
1B some bail- is appropriate here, I would ask for a

1,9 reasonable bond fully secured in the amount of a hundred

on
z-w f if ty thousand doll-ars and an ankl-e bracelet.
2L And in any event, this case should not be adjourned
22 four months. What f urge the court to recognize is the
23 current state of events and grant Mr. Giuca the chance
24 to help us fight this case from the outside.
25 There is simply -- it's extremel-y unlikely that
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1 theyrre going to prevail. And the only bail argument

2 theyrre asking for today is we just want to kick the can
3 down the road. And that's not acceptable and thatrs not
4 a reason to keep him remanded.
tr
Thank you.
6 THE COURT: As Mr. Bederow says, this case has

1 taken over four thousand days, thirteen years. There

o are many reasons for that, but the most important reason
9 until- this reversal had been that the defendant was
10 convicted by an unanimous verdict of twelve j urors .

11 That. was the most important reason why this case has
L2 taken over four thousand days.
13 He was found guilty of murder, after which he
I4 appealed his conviction. That appeal was denied which
15 is the second reason why it took so long.
L6 Now, I completely respect the Appellate Division's
I1 decision and Irm bound by it. But, I have to remark at
1B one thing, that both my decision which denied
I9 defendantrs application to set aside the judgment and
20 the Appell-ate Divisionrs order relies on the same exact

27 line of cases. We cited the same cases and we came to a

22 dif f erent conc]usion.

23 But, I also have to note that at this defendant's
24 trial it was amply clarified to the 1ury, the jury knew

25 that Avitto was failing the drug treatment program and

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1 that he was not in jail. So, those facts were not

2 hidden from the jury.
3 The Appel-l-ate Division's order is based on t.he D.A
4 not completely disclosing every si-ngle thing about how
q
the assistant D.A. accompanied Avitto into the
6 courtroom, or not correcting that wi-tness when he

1 testified that he call-ed his counsel-or rather than the

B detective or police. That checkk has to be corrected.
9 And the decision turns on those principles because
10 it is true that Brady is of the most and utmost
11 importance if it favors the defendant. And the
I2 Appellate Division found that there was clearly
13 favorable information t.hat shoul-d have been disclosed
I4 that was not.
15 But, both decisj-ons relied on the same line of
16 cases. And at this point because the defendant was

l1 convicted unanimously and the appeal was denied until-

1B this reversal, I find no reason to rel-ease the defendant
T9 nor to grant bail in this case.
20 I note that the Appellate Division did not reverse
2I and dismiss, they remanded for a new trial-. So, I'm not
22 going to give this case this four-month adjournment for
23 nothing. I'm going to put this case on for trial- and at
24 the same time see what the Court of Appeals does for
25 applications for leave.
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PROCEBDINGS

1 So, I'm going to put this case on in early May for

2 trial. Irl-l- give it about ten weeks, anywhere from ten
3 to twel-ve weeks, and the People shoul-d know whether this
4 case is retriabl-e whil-e al-so waiting for the order
5 the decision from the Court of Appea1s.
6 So, first week in May, whatrs the best date?
7 MR. BBDEROW: May 1st. We want the quickest day
I possibJ-e.
9 THE COURT: May 1st? May 1st for trial. Remand

10 continued.
11 Thank you.
L2 (Whereupon, the record was closed. )

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L4 REPORTERI S CERTIFICATION
15

L6 I hereby certify that the foregoing is a true and

1a
tl accurate transcript of the within proceedings.

9w
1B

I9
DELL ASHBY
20 Official Court Reporter
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