SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS: PART 4

THE PEOPLE OF THE STATE OF NEW YORK

NOTICE OF C.P.L.
§ 440.10 MOTION
-against-
Indictment No.
8451/2003
JERMAINE COX,

Defendant.

PLEASE TAKE NOTICE that upon the annexed affirmation of

MARK A. BEDEROW, the accompanying exhibits on the included flash

drive, and the accompanying memorandum of law, and upon all prior

proceedings had herein, the undersigned will move the Supreme Court of

the State of New York, Part 4, County of Kings, 320 Jay Street, Brooklyn,

New York, on the 7th day of July 2020 at 9:30 in the forenoon of that day,

or as soon as counsel can be heard, for an Order, pursuant to C.P.L. §

440.10(1)(b), (c), (d), (f), (g) and (h), and the Due Process Clauses of the

New York State and United States Constitutions, (1) vacating defendant

Jermaine Cox’s June 16, 2005 conviction herein and dismissing the

indictment, (2) vacating the conviction and ordering a new trial,

1
suppressing and precluding identification evidence, or (3) granting an

evidentiary hearing to determine this motion.

Yours etc.,

By: /s/ Mark A. Bederow

_____________________________
Mark A. Bederow
Law Office of Mark A. Bederow, P.C.
Carnegie Hall Tower
152 West 57th Street
8th Floor
New York, New York 10019
212.803.1293 (phone)
917.591.8827 (fax)
mark@bederowlaw.com

Attorney for Jermaine Cox

Dated: Marlboro, New Jersey

June 1, 2020

TO: Clerk of Court

Criminal Term
Supreme Court, Kings County
320 Jay Street
Brooklyn, New York 11201

Eric Gonzalez
District Attorney of Kings County
350 Jay Street
Brooklyn, New York 11201

2
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS: PART 4

THE PEOPLE OF THE STATE OF NEW YORK

AFFIRMATION
-against-
Indictment No.
8451/2003
JERMAINE COX,

Defendant.

MARK A. BEDEROW, an attorney admitted to practice law before

the Courts of this State, affirms under penalty of perjury, as follows:

1. I am the attorney of record for the defendant, JERMAINE

COX. I am familiar with the facts and circumstances herein, and make

this affirmation in support of Cox’s motion seeking an order, pursuant to

CPL § 440.10 (1)(b), (c) (d) (f), (g) and (h), and the Due Process Clauses of

the United States and New York State Constitutions, vacating his

judgment of conviction entered June 16, 2005, for murder in the second

degree, P.L. § 125.25(1) and dismissing the indictment, based upon the

People’s violation of Cox’s right to due process under Brady v. Maryland,

373 U.S. 83 (1963), People v. Chipp, 75 N.Y.2d 327 (1990), People v.

Geaslen, 54 N.Y.2d 510 (1981), People v. Giuca, 33 N.Y.3d 462 (2019) and

1
People v. Colon, 13 N.Y.3d 343 (2009), and newly discovered evidence, or

in the alternative, (a) vacating the conviction, ordering a new trial and

suppressing and precluding identification evidence or (b) granting an

evidentiary hearing on this motion.

2. Prior to making this affirmation on Cox’s behalf, I have

reviewed transcripts of the Wade hearing and trial and other documents

provided to me by Cox, his trial attorney Stewart Orden and Cox’s other

prior attorneys.

3. The exhibits and the memorandum of law accompanying this

motion are incorporated by reference into this affirmation. The exhibits

and copies of the hearing and trial transcripts are contained on a flash

drive accompanying this affirmation.

INTRODUCTION

4. Identification was the critical issue at Cox’s trial, where he

was accused of stabbing Cody Knox to death in broad daylight on a

downtown Brooklyn street. Four prosecution witnesses testified that

they witnessed the crime but none of them identified Cox with a knife or

as the person who stabbed Knox.

2
 5. Within 11 hours of the murder, Sharif Howard failed to

identify Cox in a lineup.

6. That same evening or the next day, Diosado Peralta failed to

identify Cox in a photo array which contained a photograph of Cox as he

appeared at the time of the murder.

7. Juan Rodriguez (whose testimony about the stabbing

amounted to hearsay) could not identify Cox.

8. Alkhadir Anderson, an admitted serial perjurer, identified

Cox but did not see him with a knife and did not see him stab Knox.

9. April Vasquez, a lifelong heroin addict and convicted felon on

parole, identified Cox as the man she saw with two cutting instruments

shortly before and after the crime a few blocks away from the crime scene.

Vasquez did not see Knox get stabbed and was the only witness who

identified Cox with any weapons.

10. As detailed herein, former prosecutor Anna-Sigga Nicolazzi

intentionally suppressed specifically requested Brady material and too

many times to count intentionally misled the defense and the court about

the existence of identification evidence that favored Cox.

3
 11. Prior to the hearing and trial, Nicolazzi affirmed under

penalty of perjury that (a) at least one witness who would identify Cox

at trial previously identified him in a photograph shown to the witness

by a detective and (b) she possessed a document described as “DD5-photo

array Cox.”

12. But immediately before testimony started at the Wade

hearing, Nicolazzi, in direct contradiction to her prior sworn statements,

told Orden that none of the witnesses viewed photographs of Cox. As a

result of Nicolazzi’s representation, Orden withdrew his portion of the

Wade related to photographic identifications of Cox.

13. On the third day of trial testimony, Vasquez admitted on cross

that a detective showed her a single photograph of Cox immediately

before she identified him in a lineup.

14. Notwithstanding Vasquez’s unambiguous testimony,

Nicolazzi steadfastly maintained that neither Vasquez nor any other

witness was ever shown a photograph of Cox.1

1
Two days after Vasquez testified that she was shown a photograph of Cox, Peralta
testified that he was shown photographs by detectives shortly after the crime.
4
 15. Vasquez’s testimony led the court to reopen the Wade hearing.

Nicolazzi assured the court that every detective who encountered

Vasquez before she viewed the lineup denied showing her a photograph

of Cox.

16. Nicolazzi’s representation was patently false. In fact, she

possessed material and favorable evidence that she did not disclose to

Cox before the hearing or trial, including

• photographs of Cox which were shown to at

least one witness

• DD5s from Detective Frank Contrera (who did

not testify at the hearing or trial) which
memorialized his preparation of a photo array
with Cox’s image which he showed Peralta, who
failed to identify Cox (exhibits A and B)

• notes from an unnamed detective marked

“April” which documented that hours before
Vasquez viewed the lineup, Contrera and
another detective “picked up” Vasquez and
brought her to the precinct, and which
referenced “photo array no. 78828” (exhibit C,
“Vasquez notes”)

17. Kept ignorant of the fact that Contrera spent considerable

time with Vasquez before the lineup and that he showed at least one

other witness a photograph of Cox by Nicolazzi’s false representation that

“every” relevant detective testified, the court unwittingly concluded that

5
because the only possible detectives who could have tainted the lineup

did not show Vasquez a photograph of Cox, there was no basis to suppress

the lineup as unduly suggestive.

18. Nicolazzi’s misleading presentation of the evidence at the

reopened Wade hearing meant that the court did not know Nicolazzi

failed to meet her initial burden of going forward to establish a lack of

undue suggestiveness, see Chipp, 75 N.Y.2d at 335, which required that

Vasquez’s lineup identification be suppressed and almost certainly would

have precluded her from making an in-court identification of Cox. See

People v. Marshall, 26 N.Y.3d 495, 506 (2015); People v. Ortiz, 90 N.Y.2d

533 (1997).

19. Nicolazzi’s suppression of material evidence, including the

photographs of Cox, the Contrera DD5s and the Vasquez notes prevented

Cox from introducing evidence which could have affected the court’s

decision at the Wade hearing and therefore violated Cox’s right to due

process. See Geaslen, 54 N.Y.2d at 516.

20. Nicolazzi’s concealment of the photographs, the Contrera

DD5s and the Vasquez notes deprived Cox from introducing evidence at

6
trial that would have undermined the reliability of Vasquez’s

identification of Cox.

21. Nicolazzi exploited her suppression of evidence that on

November 25 or 26, 2003, Peralta failed to identify Cox in a photo array

by misleading the jury about the reliability of Peralta’s description of the

man he saw with a knife.

22. At trial, Peralta claimed for the first time that he “specifically

recalled” the man with a knife had “particularly wavy” hair, which

Nicolazzi told the jury meant that the man Peralta saw with the knife

was Cox. However, Nicolazzi’s suppression of the photo array and the

Contrera DD5s left the jury without any proof that Cox’s November 26,

2003 mug shot (which depicted him exactly as he appeared at the time of

the crime) was in the array and that shortly after the crime Peralta

failed to identify Cox as the man with the “particularly wavy” hair

but “specifically recalled” his hair when asked by Nicolazzi 18 months

later.

23. Had the defense been aware of the suppressed evidence and

not been repeatedly misled by Nicolazzi, Vasquez’s lineup identification

likely would have been suppressed and her in-court identification

7
precluded, and the jury would have given less weight to Vasquez’s and

Peralta’s testimony, which would have made it reasonably possible that

the outcome at trial would have been different.

24. Nicolazzi made a mockery of Cox’s right to a fair trial. The

severe prejudice she caused Cox is not an isolated incident.2 Cox’s due

process claims are bolstered by Nicolazzi’s documented record of

suppressing favorable evidence and materially misleading the defense

and court. See People v. Giuca, 33 N.Y.3d 462 (2019); People v. Giuca, 158

A.D.3d 642 (2nd Dept. 2018).

PROCEDURAL HISTORY

25. A Wade hearing was held from May 18 to 26, 2005. After the

court initially denied Cox’s motion to suppress identification evidence,

the trial started on May 27, 2005.3

26. On June 1, 2005, the court reopened the Wade hearing after

Vasquez testified that she viewed a single photograph of Cox before she

identified him in a lineup. That same day, the court again denied Cox’s

2
Nicolazzi’s conduct likely violated New York Rules of Professional Conduct 3.1(b)(3),
3.3(a)(1) and (3), 3.4(a)((1) and (3) and 3.8(b).
3
Co-defendant Harry Wilson was tried for Knox’s murder in August 2005. He was
convicted of manslaughter in the first degree and sentenced to 25 years in prison.
8
motions to suppress or preclude any identification evidence and denied

his motions to strike Vasquez’s testimony and for a mistrial.

27. On June 7, 2005, Cox was found guilty of murder in the second

degree.

28. On June 16, 2005, Cox was sentenced to 25 years to life in

prison. At sentencing, Cox, who had no criminal history prior to this case,

maintained his innocence (S12)4 as he continues to do to this day.

29. Cox has been in jail or prison on the instant case since

November 25, 2003.

30. Cox’s direct appeal was denied. People v. Cox, 54 A.D.3d 684

(2nd Dept. 2008), lv. denied, 11 N.Y.3d 896 (2008). At the time of his

appeal, Cox was unaware of the Contrera DD5s (exhibits A and B) and

the Vasquez notes (exhibit C).

31. Cox has not filed any previous C.P.L. § 440.10 motions to

vacate his conviction.

4
References to the hearing, trial and sentencing transcripts will be cited as “H,” “T”
and “S” followed by the page number(s) of the transcript. The trial transcript is
missing a few pages and due to an apparent transcription problem select pages
overlap.
9
 STATEMENT OF FACTS

32. At 1:30 p.m. on November 25, 2003, Cody Knox was stabbed

to death outside of the Fulton Grill at Flatbush Avenue and Nevins Street

in Brooklyn.

33. On November 25, 2003, Detective Jon Hafner of the 84th

precinct detective squad was appointed the case detective (Hafner: T391).

34. On November 25, 2003, Frank Contrera and Robert Burke

were detectives in the 84th precinct detective squad (exhibits A and B).

On information and belief, Detective Marino (first name unknown) also

worked at the 84th precinct (see exhibit C).

35. At 8:10 p.m. on November 25, 2003, Cox was arrested and

brought directly to the 84th precinct (Savarese: T515-16).

36. At 10:30 p.m. on November 25, 2003, Contrera and Marino

“picked up” Vasquez and brought her to the 84th precinct (exhibit C).

37. Sometime between 10:30 p.m. on November 25 and 12:25 a.m.

on November 26, 2003, Hafner interviewed Vasquez at the 84th precinct5

(Hafner: T179).

5
Hafner prepared DD5s of his November 25, 2003 pre-lineup interviews of Anderson
(exhibit D) and Howard (exhibit E), but on information and belief, he did not prepare
a DD5 of his pre-lineup interview of Vasquez.
10
 38. From approximately 12:25 a.m. to 12:30 a.m. on November 26,

2003, Cox was placed in three successive lineups. Vasquez and Anderson

identified Cox. Howard failed to identify him (Johnson: H55-59).

39. At 1:50 a.m. on November 26, 2003, Hafner and Marino

“delivered Vasquez back” to wherever Contrera and Marino had “picked

her up” a few hours earlier (exhibit C).

40. On November 26, 2003, Nicolazzi, a senior assistant district

attorney in the homicide bureau, was assigned Cox’s case.

41. On November 26, 2003, Nicolazzi interviewed Vasquez at the

DA’s Office (Vasquez: T133). On information and belief, she interviewed

Vasquez numerous other times before trial (see T149-50) but did not take

any notes in order to avoid providing Cox with Rosario material.

42. On November 26, 2003, Contrera and Burke interviewed

Peralta and showed him a photo array which on information and belief

included Cox’s November 25 or 26, 2003 mug shot. Peralta failed to

identify Cox (exhibit B).

43. Within days of Cox’s arrest, Nicolazzi examined Vasquez

(T133) and Peralta (T450) before the grand jury.

11
 44. As the lead detective, Hafner maintained the NYPD case

folder, which was stored in a box and contained hundreds of pages of

documents, including his and other detectives’ DD5s (see Hafner: T406,

421-22, 433-34).

45. As the lead prosecutor and lead detective, Nicolazzi and

Hafner communicated regularly about Cox’s case from November 2003 to

June 2005 (see T149-50).

46. Nicolazzi personally reviewed the case file (T150).

47. At the time of Cox’s trial, Nicolazzi had been in charge of the

prosecution for more than 18 months.

48. On information and belief, Nicolazzi knew before Cox’s

hearing and trial that Contrera, Burke and Marino interviewed

important witnesses and performed other investigative tasks in

connection with Cox’s case on November 25 and 26, 2003.

49. On information and belief, prior to Cox’s hearing and trial

Nicolazzi and Hafner knew that Contrera and Marino brought Vasquez

to the precinct before she viewed the lineup and that Peralta failed to

identify Cox in a photo array presented to him by Contrera and Burke on

November 25 or 26, 2003.

12
 Pre-Trial Discovery Demands and Responses

50. On February 18, 2004, Cox filed omnibus motions (exhibit F),

which included specific demands for

the time, date, place, and manner in which [Cox]

was identified and whether [Cox] was subjected to
any out of court identification procedure,
including….a photo identification (id. at ¶6)

…the date, time, location and nature of such

procedure, the names, shield numbers and
commands of any law enforcement officials
involved…whether or not [Cox] was identified and
who identified him or failed to do so…copies of any
police department forms, documents [and]
photographs…in connection with any such
identification procedure (id. at ¶7)

…all New York City Police Department…forms

and documents prepared in connection with the
alleged criminal incident, including but not
limited to…complaint follow-up reports
[DD5s]…and memo book entries…(id. at ¶ 10)

any photographs of [Cox which] were exhibited to

any witness or potential witness in this case
during the investigation (id. at ¶34).

51. On March 4, 2004, Nicolazzi affirmed under penalty of perjury

that she “intend[ed] to offer at trial identification testimony of witnesses

who previously identified [Cox]…in pre-trial photographic and lineup

procedures…” (exhibit G, ¶11) (emphasis added).

13
 52. On July 28, 2004, Nicolazzi affirmed under penalty of perjury

that a large document production that same day included one “DD5-

photo array Cox” (exhibit H, item no. 22) (emphasis added).

The Wade Hearing

53. On May 18, 2005, immediately before the Wade hearing

started, Nicolazzi directly contradicted her prior sworn statements

(exhibits G and H) and assured Orden that Cox’s photograph was not

shown to any witnesses (exhibit I, Orden Affirmation, ¶ 8).

54. Relying upon Nicolazzi’s representation, Orden withdrew the

portion of his motion alleging that photographic identifications rendered

lineups unduly suggestive (id.; see H2).

55. Before the hearing started, Nicolazzi provided Orden with

limited information indicating that witnesses previously unknown to the

defense gave descriptions of the perpetrator that did not match Cox.

Nicolazzi did not include contact information, which left Orden without

a reasonable opportunity to locate and interview possibly exculpatory

witnesses before trial (H2-5, 7, 14-18).

14
 56. Orden requested time to locate and interview the possibly

exculpatory witnesses. Nicolazzi gallingly accused Orden of using “delay

tactics” (H5).6

57. At the Wade hearing, detectives Baker and Johnson testified

that Anderson, Howard, and Vasquez were separated (Baker: H30-31)

before they viewed “double-blind” lineups of Cox (Johnson: H54-58).

58. Nicolazzi did not call Contrera or Marino at the hearing. None

of the testifying detectives mentioned Contrera or Marino or explained

Vasquez’s interactions with other detectives before they encountered her

at the 84th precinct.

59. After Orden stated his intent to call Anderson as a defense

witness, Nicolazzi requested that the court assign him counsel because

she expected him to contradict prior sworn statements he made which

favored the prosecution (H78-82).

60. Nicolazzi informed the court that if Anderson testified, she

might prosecute him for perjury. She noted that she presently “had

someone” under indictment for perjury and “this is something we do in

6
Today, this gamesmanship would violate Brady. See People v. Rong He, 34 N.Y.3d
956, 959 (2019).
15
the DA’s Office.” The court declined to advise Anderson of his right to

counsel (H78-83).

61. Anderson testified that he identified Cox in a lineup after a

detective prompted him to identify Cox (H85-86).

62. The court found Anderson’s testimony “totally incredible, at

least as far as the direct examination was concerned” and discredited the

entirety of his testimony (H151).

63. The court denied the defense motion (H151).

The Trial of Jermaine Cox

64. The People’s witness list consisted of approximately 34

“potential witnesses or names that may be mentioned during the course

of the trial,” 16 of whom were police officers or detectives (exhibit J).

65. Contrera, Marino and Burke were not included on the

People’s witness list.

The People’s Opening

66. Nicolazzi alleged that Cox and Wilson “hunted down” Knox

and stabbed him “over and over again” (T5).

67. Acutely aware of the shaky identification evidence against

Cox, Nicolazzi warned the jury that the witnesses had

16
 different abilities to remember various details,
whether it is faces, descriptions, heights, what
they saw and where. Each one of them will tell you
as best they can what they saw, in the best light
they can. Some are good with faces and details and
some aren’t (T8).

68. Nicolazzi propped up the troubled Vasquez as a woman who

embraced the opportunity “to finally do something right to show her good

citizenship” (T9). In contrast to the other witnesses, Nicolazzi said

Vasquez clearly identified Cox as the man she saw with weapons

immediately before and after the stabbing (T9-10).

69. Nicolazzi braced the jury for Anderson’s upcoming cornucopia

of lies, conceding that ”it was an understatement to say that he is a little

bit mixed up” (T10).

The Defense Opening

70. Orden previewed his defense that Wilson alone stabbed Knox

(T13), pounced upon Nicolazzi’s preemptive concession that Anderson

was “mixed up” and emphasized the weakness of the identification

evidence (T14-16).

71. Ignorant to the fact that Vasquez and Peralta had viewed

photographs of Cox (see exhibit I, ¶¶ 6-9, 11-12, 15-17), Orden did not

mention that Vasquez’s identification was tainted by a detective showing

17
her a photograph or that Peralta had failed to identify Cox in a photo

array with Cox’s image.

The People’s Case

72. Cox is 5’-9,” light-skinned, and weighed 240 lbs. on November

25, 2003 (Baker: H44; Hafner: T420). He was 26-years-old in November

2003. Put bluntly, Cox was average height and fat.

73. Wilson is 6’-0,” dark-skinned, and weighed 225 lbs. on

November 25, 2003. He was 33-years-old in November 2003. He is so

dark-skinned that his nickname was “Black” (Hafner: T420, 437).

74. In other words, on November 25, 2003, Cox and Wilson did

not physically resemble each other at all. Cox had a noticeably lighter

complexion (Vasquez: T146, 154), was three inches shorter, 15 lbs.

heavier , and seven years younger than Wilson.

Juan Rodriguez

75. Rodriguez claimed that he saw two men chase Knox and one

of them stab him (T20-21) before he backpedaled and admitted that he

heard Knox had been stabbed (T31-32, 34-35, 39-40).

18
 76. Rodriguez could not identify either man (T25-26) and

inaccurately described the taller man (in fact, Wilson) as 30 pounds

heavier than the shorter man (in fact, Cox) (T26, 33).

April Vasquez

77. On November 25, 2003, Vasquez, was a lifelong addict who for

years used heroin every day, was on parole for selling heroin and was

currently enrolled in a methadone program (T133-36, 142).

78. From 1987 to 2003, Vasquez amassed seven federal and state

convictions for drug dealing and possession (exhibit K).

79. Vasquez completed her parole in January 2005, a few months

before she testified at trial (T134).

80. Vasquez struggled to recall when she got out of prison, when

she switched from heroin to methadone, and when she entered a

methadone program (T138-41).

81. Vasquez testified that while she was waiting to meet her

parole officer, from a distance of five to six feet, she saw Cox exit the front

passenger seat of a car with what appeared to be yellow-handled sheers

19
and a “small sword,” which he placed up his sleeve as he moved towards

Nevins Street7 (T122-26).

82. Vasquez said that she also saw a man exit the driver’s seat

but she could not see him clearly and did not know if he had anything in

his hands (T125).

83. According to Vasquez, five to seven minutes after she first saw

the men, they returned and Cox again concealed the weapons under his

sleeve and reentered the passenger seat before the other man drove away

as a traffic agent was ticketing the car. (T127-28, 153-54).

84. Vasquez initially claimed that the two men had similar skin

tone, with one being “a little darker” (T145-46) but minutes later

admitted that the other man was “much darker” than Cox (T146, 154).

85. Other compelling evidence strongly suggested that Vasquez

misidentified Cox as the passenger and that Wilson was the passenger

and man she saw with weapons.

86. The car Vasquez saw was Cox’s livery cab, which he leased in

March 2003 (Wentz: H66-68; Osei: T66-70, 72).

7
In a sworn statement made to a prosecutor in Hafner’s presence one hour after she
identified Cox in a lineup (T162) Vasquez twice said that both weapons had yellow
handles (exhibit L).
20
 87. Charlemaine Watson, the traffic enforcement agent who

ticketed Cox’s car on November 25, 2003, did not see the passenger but

described the driver as 5’-9” or 5’-10” and “stocky” (T261, 265) which

accurately described Cox8 (see supra, ¶ 72).

88. Vasquez had a “clear view” of Cox and she was sure that he

was not bleeding (T147-48).

89. Cox was arrested less than seven hours after Knox was

murdered (see Savarese: T515-16). Wilson’s blood was discovered on

the front passenger armrest of Cox’s car (T464).

90. In a sworn statement made to a prosecutor in Hafner’s

presence, Anthony Watts said that the day after the murder “Black” (who

was Wilson; see supra, ¶ 73) showed him the “yellow metal object” (cf.

supra, ¶ 81) he used to stab Knox (exhibit M).9

91. On the evening of the murder, Vasquez “was picked up” by an

unnamed detective and brought to the 84th precinct, where she was

8
Watson described the driver as “dark” (T260) but admitted that she did not get a
good luck at his face (T261). Since she could not describe the passenger, she was
unable to compare the driver’s complexion to the passenger’s skin tone.
9
Three days after Wilson was convicted, Nicolazzi wrote a favorable letter on behalf
of Watts to a colleague in her office who was prosecuting Watts (exhibit N).
21
interviewed by a detective before she identified Cox in a lineup10 (T130-

33).

92. On cross, Vasquez admitted that an unnamed detective

showed her a single photograph of Cox before she identified Cox in the

lineup (T148-49).

93. Orden immediately moved to strike Vasquez’ testimony due

to Nicolazzi’s false representation immediately before the Wade hearing

that none of the witnesses were shown photographs of Cox (T149).

94. Nicolazzi twice affirmed under penalty of perjury that

witnesses were shown photographs of Cox (exhibits G and H) before

she told Orden the exact opposite immediately before the Wade hearing

(see H2; exhibit I, ¶ 8).

95. Caught red-handed, Nicolazzi discredited Vasquez, claiming

that “as far as she was aware” witnesses were never shown photographs

of Cox and that Vasquez never mentioned being shown a photograph of

Cox in any of their previous conversations (T149-50).

10
Vasquez’s parole officer told her to cooperate with police and that she would let
detectives know “what kind of setting [Vasquez] was in and stuff” (exhibit L).
22
 96. Nicolazzi stated that she had spoken with the detectives

“several times” and gone “through the case file” herself and she had

never heard of any photographic identifications being conducted in Cox’s

case (T150).

97. Nicolazzi could not have been any clearer that no prosecution

witnesses were shown photographs of Cox. She represented:

• “there is no photo array ever done of [Cox]”

(T150)

• “I don’t believe there was any photographic

identification done at all” (T150)

• “I don’t recall” if a photo array of Cox existed

(T151)

• “I know there was never any photographs

shown of [Cox] to any witness” (T151)

• “I remember paperwork…every one of those

procedures” [photographic identifications] was
about Wilson (T151)

98. As evidenced by her contradictory prior sworn statements

(exhibits G and H), Nicolazzi’s unambiguous representations to the court

were patently false (exhibits G and H). Nicolazzi’s March 2004 sworn

representation that she intended to offer an in-court identification by a

witness who identified Cox in a photographic identification (exhibit G)

23
must have referred to Vasquez because she was the only witness who

viewed a photograph of Cox (T148-49) and made an in-court

identification of him (T130-33).

99. Equally damning was Nicolazzi’s July 28, 2004 sworn

affirmation, in which she specifically stated that she had possession of a

DD5 regarding a photo array of Cox (exhibit H), which must have been

Contrera’s DD5 documenting Peralta’s failure to identify Cox (exhibit

B).

100. If Nicolazzi’s representations to the court after Vasquez

admitted being shown a photograph of Cox were true, then she twice

perjured herself (exhibits G and H cf. T149-50; see P.L. §§ 210.10, 210.05).

101. The court allowed Vasquez’s examination to continue,

preferring to “see what happens” before deciding what, if any, action to

take (T150-51).

102. The falsity of Nicolazzi’s representations to the court became

more apparent as Vasquez’s examination continued. Vasquez swore that

there was “no doubt in her mind” that she was shown Cox’s photograph

prior to viewing the lineup (T151-53). She specifically recalled that the

detective asked her if the photograph depicted “the guy you saw with

24
knives” and that the detective in the lineup room asked her the same

question11 (T155, 166-67, 170).

103. On redirect, Vasquez reiterated that the detective showed her

the photograph of Cox (which she believed was a Polaroid) and asked her

“if that was him” before she viewed the lineup (T160-61).

The Reopened Wade Hearing

104. At the conclusion of Vasquez’s testimony, Orden again moved

to preclude her identification testimony and moved for a mistrial (T171-

72).

105. Nicolazzi assured the court that she would “look into this” and

“get to the bottom” of it (T173) by speaking to Vasquez (over Orden’s

objection) and “every single detective” who had access to her before she

viewed the lineup (T172).

106. Instead, Nicolazzi continued to materially mislead Cox and

the court, stating that she would call “every one of them” (detectives

who encountered Vasquez before the lineup) (T175).

11
Detective Johnson, who conducted a “double-blind” lineup (H53-54, 59), testified
that Vasquez identified Cox as “the guy who stabbed him and got out of the car,”
which he documented in the lineup report (H58-59; T233-37; exhibit O). Vasquez’s
description of her identification (T155, 166) was similar to Johnson’s even though she
did not see the incident (Vasquez: T126-27, 144, 159), which suggests that she was
unduly influenced before she viewed the lineup.
25
 107. The court reopened the Wade hearing in order to determine

whether or not the lineup was tainted by any detective showing Vasquez

a photograph of Cox before she viewed the lineup (T178). Nicolazzi knew

that this required testimony regarding Contrera’s and Marino’s

interactions with Vasquez before the lineup (see exhibit C) but she did

not call Contrera or Marino and none of the testifying detectives

described their interactions with them or provided any information about

Vasquez’s interactions with detectives before she arrived at the precinct.

108. Nicolazzi did not call Contrera or Marino even though clearly

understood her initial burden of going forward at the hearing required

her to do so, as evidenced by her citing Chipp before the hearing started

and accurately summarizing it

First of all, it’s the People’s burden to show—to

meet our burden. Then if the court finds based on
what the People put forth that there is no undue
suggestiveness…(H8-9)

109. Detectives Hafner, Baker, Johnson and Kelly all testified that

they did not show Vasquez any photographs (Hafner: T180; Baker: T182-

83; Johnson: T186; Kelly: T188-90).

110. Hafner acknowledged that there was a Polaroid camera at the

84th precinct (T181). At the earlier portion of the Wade hearing, Baker
26
admitted that he “might have” taken or possessed individual photographs

other than the lineup photographs (H52). When Orden specifically

requested production of any such photographs, the court said his request

was “too speculative” (H52).

111. After privately speaking to Nicolazzi before she took the stand

at the reopened hearing, Vasquez predictably changed her testimony and

now claimed that she could not remember when she was shown a

photograph of Cox (T202-05).

112. In her trial testimony, Vasquez said that before she viewed

the lineup, she was “picked up” by an unnamed detective and brought to

the precinct to be interviewed (T130-31). But at the reopened Wade

hearing, Nicolazzi did not introduce evidence that Vasquez was brought

to the precinct by Contrera and Marino or of their interactions before

Vasquez viewed the lineup.

113. The gaping evidentiary hole left by Nicolazzi’s failure to call

Contrera and Marino at the Wade hearing meant that she failed to satisfy

her initial burden of going forward to establish that the lineup was not

unduly suggestive. See Chipp, 75 N.Y.2d at 335; Ortiz, 90 N.Y.2d at 538.

27
 114. Notwithstanding her failure to “put forth” evidence “that

there is no undue suggestiveness” (see supra, ¶ 108) Nicolazzi falsely

claimed that the lineup could not have been tainted because “every

detective [who] would have had reason to have contact with her”

testified that they didn’t possess Cox’s photograph or show her a

photograph (T209).

115. Unaware that Contrera and Marino brought Vasquez to the

precinct and under the false impression that “every” detective who

encountered Vasquez testified, the court denied Cox relief, explaining

I believe the officers. And I am going to leave it at

that. At least I am going to leave it at that. I think
Ms. Vasquez, her testimony is what it is and I
think—in other words, on her testimony I can’t
suppress the identification and I can’t strike her
testimony because I believe she’s confused, maybe
mistaken. And you know, based upon the
strength of the testimony of detectives who
would be the only people who would be able to
taint the lineup (T211).

The Trial Continues

Alkhadir Anderson

116. Nicolazzi called Anderson as a witness, even though just a few

weeks earlier, she accused him of perjury, urged the court to assign him

28
an attorney and indirectly threatened him with perjury charges (see

supra, ¶¶ 59-60; H98, 115).

117. Anderson’s chameleonlike performance on the stand included

frequent admissions that he lied to the police and lied under oath as a

prosecution and defense witness (see T299-302, 304-27, 330, 339-41, 345-

46, 354, 359, 363, 365-67, 369).

118. Anderson correctly identified Cox as the “light-skinned” man

and Wilson as the “dark-skinned” man (T272-73, 289-90). When he left

the stand, the sum total of Anderson’s “current” testimony was that the

only person he saw with a knife and the only person he saw stab Knox

was Wilson (T300, 329, 331, 351-53, 356, 366-67, 369).

Diosado Peralta

119. Peralta testified that within the span of seven seconds (T456-

57) he saw two men pin another man down and he “couldn’t see anything”

until one of the men made a stabbing motion with a rusty, makeshift

knife (T445-47).

120. Peralta claimed that he “specifically noticed” the “particularly

wavy” hair and “very dark tan” complexion of the man with the knife

(T447-48, 459). He oddly claimed that he remembered the man’s

29
“particularly wavy” hair because he “expected most black men would

have kinky or more curly hair” (T448). Peralta was clear that the man

did not have any headgear “or anything on his head” (T447-48).

121. Peralta acknowledged that he had never been asked to

describe the man’s hair as “wavy” until Nicolazzi asked him in front of

the jury (T463).

122. The jury did not know that less than three hours after the

murder, Peralta’s description of the man he saw with a knife did not

mention anything about his hair (exhibit P).

123. The jury did not know that when Contrera and Burke showed

Peralta a photo array on November 25 or 26, 2003 and he failed to

recognize “the man with the particularly wavy hair” (T457-60), he merely

described the man’s hair as “black” with “no further information”12

(exhibit Q).

124. Nicolazzi’s suppression of the photo array kept the jury

ignorant of the fact that Cox’s November 26, 2003 mug shot (exhibit R),

which depicted Cox as he actually appeared at the time Peralta

12
Burke’s DD5 (exhibit Q) and Contrera’s DD5 (exhibit B) memorialized the same
interview of Peralta. Burke’s report did not reference Peralta’s failure to identify Cox
in a photo array.
30
“specifically recalled” seeing the man’s “wavy” hair hours earlier (see

Hafner: T417-20) must have been included in the array shown Peralta

(see T150).

125. If Nicolazzi had not suppressed the specifically requested

photo array,13 Orden could have used it to devastating effect. Had the

jury known that shortly after the murder Peralta viewed a photograph of

Cox which depicted his hair exactly as it appeared when Peralta saw

Knox get stabbed and he failed to identify Cox, but 18 months later for

the first time—in response to Nicolazzi’s questions—he "specifically

recalled” the man’s “particularly wavy hair,” the jury likely would have

given little weight to Peralta’s description of the man with the knife.

Sharif Howard

126. Howard equivocally testified that he saw two men grab Knox

near the Fulton Grill and “what looked like to me” stab him with “what I

thought to be a knife” (T542-44).

13
After Vasquez testified that she was shown a photograph of Cox, Nicolazzi vowed
to “get to the bottom of this” and speak to “every detective” who had access to her (see
supra, ¶ 105). This included Contrera (see exhibit C). It is incomprehensible that after
telling the court that she spoke to every detective about whether witnesses were
shown photographs of Cox (see supra, ¶¶ 106, 114) she still did not disclose the
photo array shown to Peralta, which was prepared by Contrera (exhibit B).
31
 127. Several hours after the incident Howard failed to identify Cox

in a lineup. He later failed to identify Wilson in a lineup (T547-49).

128. Howard inaccurately testified that the taller, thinner man (in

fact, Wilson) had a lighter complexion (in fact, Cox) and that the “shorter,

huskier” man (in fact, Cox) had the dark complexion (in fact, Wilson)

(T555-56). Howard claimed that the dark-skinned man (Wilson) was the

“main aggressor” (T557).

129. Howard claimed that he “never” told Hafner the taller man

was about 6’-0” with a light complexion (T555). On November 25, 2003,

at approximately 8:00 p.m., Hafner wrote that Howard “states one about

6’ ft lite complexion” (exhibit E).

The Defense Case

130. The defense rested without presenting any evidence (T558).

The Defense Summation

131. Orden reviewed the several inconsistencies between the

witnesses’ identifications, including their inaccurate and contradictory

physical identifications of Cox and Wilson (T562-70).

32
 132. Orden argued that Vasquez misidentified Cox as the

passenger of his own car, emphasizing that Wilson’s blood was found on

the passenger armrest of Cox’s car (T576-78, 582, 586-87, 598).

133. Expanding upon Vasquez’s misidentification of Cox as the

passenger, Orden argued that Vasquez’s unambiguous testimony

conclusively established14 that her identification was tainted because

after she was shown a photograph of Cox and asked if that was the man

with the knives, the parolee “agreed” with police (T579-82, 586).

134. Orden argued that Peralta’s “curious” seven-second

recollection of the stabber’s “wavy” hair” and “dark tan” complexion

(which he described as “black” until the day he testified) was the result

of the same suggestive tactics the police used with Vasquez (T582-85).

135. Orden described Anderson as the “piece de resistance” who at

the end of his contradictory testimony identified Wilson as the only

person he saw with a knife and the only person he saw stab Knox (T587-

602).

The only evidence from Vasquez before the jury was that she was shown Cox’s
14

photograph before she viewed the lineup (see supra, ¶¶ 92, 102-03).
33
 136. Orden argued evidence that Cox punched Knox did not

establish his shared intent to kill him (T604-05).

The People’s Summation

137. The majority of Nicolazzi’s 40-plus page summation

addressed Anderson and Vasquez.

138. Nicolazzi conceded that Anderson was threatened with

perjury when he lied “back then” (T632) but claimed that he testified for

the prosecution because he was “ready to tell the truth” (T632-33).

139. Nicolazzi’s defense of Anderson’s purportedly pure motive

ignored that one week after he testified as a defense witness (and she

threatened him with perjury) she subpoenaed him and had him brought

to her office, where he was “made sure he knew how to testify” (Anderson:

T297-98, 315-17, 320, 325-26, 346-47).

140. Notwithstanding Anderson’s testimony that he only saw

Wilson possess a knife and stab Knox (see supra, ¶ 118), Nicolazzi told

the jury that “whether [or not] you want to go with his version that they

both had knives,” Anderson described Cox making stabbing motions

(T624-26).

34
 141. Nicolazzi emphasized the reliability of Vasquez’s

identification of Cox, describing her as a “credible” witness who was “sure

of things that she did and did not see” (T621). According to Nicolazzi,

Vasquez, who like Anderson “decided to do something right,” made an

“unshakable” lineup identification of Cox as the man with the knives

(T623-24).

142. Nicolazzi defended the integrity of the identification

procedures, claiming that detectives “went the extra yard” by conducting

double-blind lineups (T628-29, 640) and that it made “no sense” for them

to show Vasquez a photo before a lineup (T641).

143. Aware that she had to minimize Vasquez’s claim that she was

shown a photograph of Cox before the lineup without discrediting her,

Nicolazzi artfully suggested that Vasquez might have seen a photograph

of the lineup after she identified Cox, which didn’t matter because “we

know for sure…in no uncertain terms” that she identified Cox as the man

with the weapons (T640-41).

144. Even though Peralta did not identify Cox at trial, Nicolazzi

assured the jury that “you know” Peralta saw Cox stab Knox (T611-13).

35
 145. In order to dilute any impact from Peralta’s testimony that he

did not recognize the man with the knife in the photo array without

damaging his credibility, Nicolazzi misleadingly argued that there was

“no evidence” Peralta was shown photographs on the evening of the

murder, but even if he viewed photographs “at some point,” the “only

thing distinctive” to [Peralta] about the person he saw was the wavy

hairstyle” (T641-42).

146. Nicolazzi argued that Cox was guilty of murder even if he did

not stab Knox because he chased Knox and threw him to the ground

(T647-48).

Post-Summation Colloquy

147. At the conclusion of Nicolazzi’s summation, Orden objected to

her misleading characterization of Peralta’s testimony regarding when

photographs shown to him (T649).

148. Yet again, Nicolazzi defended herself by misleading the court.

She claimed that her argument that Peralta did not view photographs on

the night of the murder was fair comment on the evidence because

Peralta could not have viewed photographs until he was interviewed by

detectives on December 1, 2003 (T649-50).

36
 149. This was patently false (see exhibit H). Nicolazzi must have

known that Peralta was interviewed by Detective Genna on November

25, 2003, less than three hours after the murder (exhibit P) and by

Contrera and Burke on November 26, 2003, when according to the DD5

she originally swore she possessed (see exhibit H) before she claimed

ignorance of its existence and suppressed it (see supra, ¶ 97), Peralta

viewed the array (exhibits B and Q)

Verdict and Sentence

150. Cox was convicted of murder in the second degree and

sentenced to 25 years to life in state prison.

POST-TRIAL AND POST-APPEAL EVENTS

151. On June 17, 2012, Cox’s mother, Mary Van Osten Cox,

received documents related to his case from an unknown source,

including copies of Contrera’s DD5s (see exhibit S; Mary Van Osten Cox

affidavit, dated July 30, 2013; exhibits A and B).

152. On August 12, 2012, Cox sent a FOIL request to the NYPD

which tracked the unredacted portion of Contrera’s DD5 (exhibit B) and

sought copies of “all photo arrays” and “memo book notes” (exhibit T).

37
 153. On November 20, 2012, Cox sent a FOIL request to the DA’s

Office seeking copies of “police notes, memo books,” “witness’

statements,” “photo arrays, photos, line up forms” and “all information

complied [sic] and filed pursuant to CPL 240.20 [a-j]” (exhibit U).

154. Almost one year later, the DA’s Office provided Cox

documents in response to his FOIL request, including some DD5s and

memo book entries (exhibit V). The production did not include any photo

arrays or photographs of Cox other than his mugshot (exhibit R), which

was introduced into evidence at trial (T417).

155. On May 15, 2014, Cox sent another FOIL request to the DA’s

Office, again seeking “photo arrays and photos” and adding a request for

“any offers/deals made by the District Attorney’s Office to any witnesses”

(exhibit W).

156. On October 3, 2014, Benjamin Greenwald sent identical FOIL

requests to the DA’s Office and NYPD on behalf of Cox seeking “any and

all reports in connection with this matter that were turned over” from

one agency to the other (exhibits X and Y).

38
 157. On April 28, 2015, in response to Greenwald’s letter, the DA’s

FOIL Records Access Officer confirmed that the DA’s office did not

possess any photo arrays related to Cox in its files (exhibit Z).

158. I am informed by Raymond Sprowls, an attorney who

previously represented Cox, that on or about February 5, 2016, he

contacted the DA’s Conviction Review Unit (“CRU”) on behalf of Cox,

which took no action as a result.

159. On January 17, 2018, Cox’s wife submitted Cox’s written

request for a review of his conviction to the CRU and the Attorney

General’s Office (exhibit AA).

160. On February 8, 2018, the CRU acknowledged receipt of Cox’s

letter and replied that it would update him after reviewing the materials

he sent (exhibit BB).

161. On March 30, 2018, the Attorney General’s Office deferred

any review and forwarded his letter to the DA’s Office (exhibit CC).

162. On May 16, 2018, the CRU informed Cox that it still had not

reviewed his materials but assured him that it would be in touch with

him “once preliminary matters concerning your case are finished”

(exhibit DD).

39
 163. On December 19, 2018, Cox sent another FOIL request to the

NYPD (exhibit EE), explaining that the NYPD had ignored his FOIL

demands for years. The NYPD has never answered this letter or provided

Cox with any documents in response to any of his FOIL demands.

164. From April 22 to June 18, 2019, Justin Bonus, an attorney

who previously represented Cox, contacted Mark Hale, the Chief of the

CRU, several times seeking the name of the prosecutor reviewing Cox’s

matter (exhibit FF).

165. On April 24, 2019, in an email to Bonus, Hale declined to

answer Bonus (exhibit GG). Hale also did not return Bonus’ phone calls

seeking the same basic information (see exhibit FF).

166. On information and belief, more than two years after the CRU

assured Cox it would provide him with an update (see exhibit DD), the

CRU has not taken any meaningful steps to investigate Cox’s claims and

has not notified him of what, if any, action it intends to take with respect

to his 2018 submission.

167. I was engaged by Cox on May 9, 2020. On May 15, 2020, I

wrote Chief Assistant District Attorney Nancy Hoppock demanding

favorable and undisclosed evidence (exhibit HH).

40
 168. On May 18, 2020, Hoppock emailed me that the DA’s Office

would be in touch after the file was located.

169. As of June 1, 2020, I have not heard back from the DA’s Office

or received any evidence in response to my demand.

FACTS RELATED TO THE PRESENT MOTION

170. On information and belief, the sources of which are Orden’s

affirmation (exhibit I), my review of the hearing and trial transcripts and

other case documents provided to me by Cox and his prior attorneys, and

my conversations with Cox and his prior attorneys, the Contrera DD5s

(exhibits A and B), Vasquez notes (exhibit C) and photographs of Cox

which were shown to witnesses were not disclosed to Cox prior to the

Wade hearing or trial.

171. The Contrera DD5s, Vasquez notes and photographs of Cox

which were shown to witnesses were all created and maintained by the

NYPD. As such, these documents have been in the prosecution’s

possession, custody, or control since on or about November 25, 2003,

irrespective of Nicolazzi’s actual knowledge or possession. See People v.

Garrett, 23 N.Y.3d 878, 887 (2014).

41
 172. Cox’s specific pre-trial demand encompassed the Contrera

DD5s, the Vasquez notes and any photographs of Cox (see exhibit F).

Therefore, the cumulative impact of his due process claims must be

considered under the less stringent “reasonable possibility” standard of

materiality. See People v. Vilardi, 76 N.Y.2d 67 (1990); see also, Kyles v.

Whitley, 514 U.S. 419, 436-37 (1995).

173. The Contrera DD5s, Vasquez notes and photographs of Cox

which were shown to witnesses constitute favorable and material

evidence that would have supported Cox’s defense at the Wade hearing

and trial.

174. On information and belief (see supra, ¶¶ 11-24, 40-49, 51-53,

94-103, 105-14, 141-45, 148-49 and infra, ¶¶ 176-83), Nicolazzi

intentionally suppressed favorable evidence from Cox and intentionally

misled Cox, the court and the jury through her frequent materially

inaccurate representations, the cumulative impact of which severely

prejudiced Cox’s right to a fair trial.

175. If Nicolazzi had disclosed the specifically requested evidence

and avoided misleading Cox, the court and jury, it is reasonably possible

that the outcome of the trial would have been different.

42
 NICOLAZZI’S PATTERN OF MISCONDUCT

176. Nicolazzi has a documented record of suppressing evidence

that is favorable to the defense and of making false and/or misleading

statements about the state of the evidence.

177. A few months after Cox’s June 2005 trial, Nicolazzi tried and

convicted John Giuca in a high-profile murder case. Every appellate

judge (10 in total) who considered Giuca’s appeal in connection with his

2015 motion to vacate his conviction15 concluded that Nicolazzi

suppressed specifically requested favorable evidence from Giuca and

failed to correct inaccurate and misleading testimony, some of which she

elicited herself. See People v. Giuca, 33 N.Y.3d 462 (2019); People v.

Giuca, 158 A.D.3d 642 (2nd Dept. 2018).

178. Judge Jenny Rivera of the Court of Appeals, writing in dissent

from the Court’s reinstatement of Giuca’s conviction, severely criticized

Nicolazzi for her unethical and intentional misconduct, which was

strikingly similar to her conduct in Cox’s case:

15
The Appellate Division unanimously reversed Giuca’s conviction due to Nicolazzi’s
suppression of Brady material and because of her failure to correct false and
misleading testimony. The Court of Appeals reversed the Appellate Division solely
on materiality grounds.
43
 As the majority acknowledges, [Nicolazzi]
withheld information about the relationship
between [a] key witness and the District
Attorney’s Office and also failed to correct the
informant’s inaccurate and misleading
statements, including one [she] brought out on
redirect…[Nicolazzi], for her part was able to take
full advantage of [the witness’] testimony during
summation…

* * *

In violation of her duty…to deal fairly with the

accused and be candid with the courts, [Nicolazzi]
also misled the court, the jury and defense counsel
by failing to correct [the witness’ false testimony]
or disclose that she was “the DA” who appeared at
the sidebar with the court and that it was she who
told the judge in [the witness’] case drug case that
he was providing information in a murder
investigation. The latter is particularly troubling
conduct as [Nicolazzi] drew out the misleading
statement on her redirect…to offset any possible
damage to his credibility…This was not a mistake
or misstep…this was an attempt to recover ground
by bolstering the credibility of the witness after
defense counsel’s cross examination—a
particularly egregious violation of our law and the
prosecutor’s ethical obligations

Giuca, 33 N.Y.3d at 479-83.16

16
Two months after the Court of Appeals reinstated his conviction, Giuca filed another
C.P.L. § 440.10 motion based upon Nicolazzi’s suppression of a sworn and recorded
exculpatory statement made to her by Joseph Ingram. (See exhibit II). That motion
is pending in Part 19 and Justice Chun is expected to issue a decision or order a
hearing on Giuca’ motion in July 2020.
44
 179. In a disturbingly similar example, just as she did after her

suppression of evidence from Cox was exposed by Vasquez’s testimony,

in Giuca’s case, Nicolazzi feigned ignorance when confronted about her

suppression of evidence that she previously represented was in her

possession and/or had been disclosed.

180. Nicolazzi memorialized her purported disclosure of the

Rosario material to Giuca and represented that she would soon provide

copies of 15 recordings (which included the exculpatory Ingram recording

and one of Meredith Denihan, a witness Nicolazzi prepped and examined

at trial) (see exhibit II, Nicolazzi Affirmation, November 25, 2019, ¶¶ 8-

10, which is included in the People’s response).

181. During the trial, the co-defendant’s attorney realized that

notwithstanding her prior representation, Nicolazzi did not disclose the

Denihan recording to the defense, which was a clear Rosario violation.

182. When the court confronted Nicolazzi about her nondisclosure

of Denihan’s recording, Nicolazzi blatantly lied to the court. Despite

acknowledging in writing just three weeks earlier that she possessed

exactly 15 recordings, the existence of other evidence in the file

documenting the Denihan recording, and the fact that Nicolazzi prepped

45
Denihan to testify, Nicolazzi told the court “she didn’t know it existed”

(exhibit II, defense reply brief, pp. 6-8).

183. Nicolazzi also failed to disclose two other recordings (one of

which was Rosario material and the other the exculpatory Ingram

recording) and she “forgot” to disclose the grand jury testimony of a key

witness (who at that time17 alleged that Giuca implicated himself in a

murder) until his attorney noticed the nondisclosure after the witness

completed her testimony (exhibit II, defense reply brief, p. 6).

GROUNDS FOR MOTION AND RELIEF REQUESTED

184. Cox is entitled to vacatur of his conviction and a new trial,

pursuant to C.P.L. § 440.10 (1) (b), (c), (d) (f), (g) and (h), and the Due

Process Clauses of the United States and New York State Constitutions.

185. The cumulative impact of Nicolazzi’s intentional suppression

of evidence favorable to Cox and her intentionally false and misleading

representations at the Wade hearing and trial violated Cox’s right to due

process under Brady v. Maryland, 373 U.S. 83 (1963), People v. Chipp, 75

17
Years later, this witness recanted her testimony in a sworn affidavit, in which she
alleged that Nicolazzi improperly pressured and threatened her into implicating
Giuca.
46
N.Y.2d 327 (1990), People v. Geaslen, 54 N.Y.2d 510 (1981), People v.

Giuca, 33 N.Y.3d 462 (2019) and People v. Colon, 13 N.Y.3d 343 (2009).

186. Cox’s conviction should be vacated because the Contrera

DD5s and Vasquez notes constitute newly discovered evidence, which if

available to him at the Wade hearing and trial, would have created a

reasonable probability that the verdict would have been more favorable

to Cox.

187. Alternatively, in the event that the court finds that the People

did not suppress photographs of Cox, the Contrera DD5s and/or the

Vasquez notes, Cox’s conviction should be vacated due to ineffective

assistance of trial and appellate counsel because in those circumstances

there was no strategic or legitimate reason for counsel to avoid

introducing evidence that could have led to the suppression and

preclusion of evidence and severely undermined the credibility of key

prosecution witnesses at trial or for appellate counsel to avoid raising

trial counsel’s deficiencies on appeal.

47
 WHEREFORE, upon this affirmation and the accompanying

exhibits, for the reasons set forth above and in the accompanying

Memorandum of Law, which I incorporate by reference herein, the

conviction should be vacated and the indictment dismissed.

Alternatively, the conviction should be vacated, Vasquez’s lineup

identification suppressed, her in-court identification precluded or if the

People dispute the evidence with relevant sworn statements, an

evidentiary hearing held on this motion. I request the opportunity to

submit a reply brief in the event that the People contest this motion.

By: /s/ Mark A. Bederow

_________________
MARK A. BEDEROW

AFFIRMED: Marlboro, New Jersey

June 1, 2020

48