SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS: PART 4

THE PEOPLE OF THE STATE OF NEW YORK

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

Defendant.

__________________________________________________________

MEMORANDUM OF LAW IN SUPPORT OF JERMAINE

COX’S C.P.L. § 440.10 MOTION TO VACATE HIS
JUDGMENT OF CONVICTION
__________________________________________________________

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 Defendant Jermaine Cox

 TABLE OF CONTENTS

TABLE OF AUTHORITIES................................................................................................. ii
PRELIMINARY STATEMENT ........................................................................................1
INTRODUCTION .....................................................................................................................2
ARGUMENT.................................................................................................................................5
COX’S CONVICTION SHOULD BE VACATED BECAUSE
NICOLAZZI’S SUPRESSION OF BRADY MATERIAL AND HER
FALSE REPRESENTATIONS VIOLATED COX’S RIGHT TO DUE
PROCESS........................................................................................................................................5

A. The Applicable Law................................................................................................5

B. The Photographs Of Cox, Contrera DD5s And Vasquez
Notes Were Favorable To Cox...........................................................................7
C. Nicolazzi Intentionally Suppressed Brady Material And
Intentionally Misled Cox, The Court And The Jury..........................11
D. The Suppressed Evidence Was Material..................................................14
1. The Reasonable Possibility Standard Applies .........................14
2. The Cumulative Impact Of The Due Process
Violations Was Material Under The Reasonable
Possibility Standard................................................................................14
E. The Indictment Should Be Dismissed Due To Nicolazzi’s
Intentional Misconduct......................................................................................18

CONCLUSION...........................................................................................................................20

i
 TABLE OF AUTHORITIES

Cases

Brady v. Maryland, 373 U.S. 83 (1963) .........................................................................5

Kyles v. Whitley, 514 U.S. 419 (1995)...........................................................6, 10, 14, 17
Matter of James H., 34 N.Y.2d 814 (1974) .................................................................8n
People v. Chipp, 75 N.Y.2d 327 (1990) .................................................................3, 8, 17
People v. Colon, 13 N.Y.3d 343 (2009) ............................................................................7
People v. Fuentes, 12 N.Y.3d 259 (2009) ........................................................................5
People v. Geaslen, 54 N.Y.2d 510 (1981) ...........................................................7, 10, 17
People v. Giuca, 33 N.Y.3d 462 (2019) ..........................................................5, 7, 14, 18
People v. Holley, 26 N.Y.3d 514 (2015) ........................................................................8n
People v. Jenkins, 98 N.Y.2d 280 (2002) .....................................................................18
People v. Marshall, 26 N.Y.3d 495 (2015) ....................................................................8
People v. Negron, 26 N.Y.3d 262 (2015) ...................................................................6, 17
People v. Ortiz, 90 N.Y.2d 533 (1997) ........................................................................8, 9
People v. Pierides, New York County Ind. No. 732/2018 (February 5, 2020)……...18-19
People v. Rodriguez, 79 N.Y.2d 495 F.3d 221 (1992) ...........................................8n
People v. Steadman, 82 N.Y.2d 1 (1993) ...................................................................5, 7
People v. Ulett, 33 N.Y.3d 512 (2019) ...................................................................5, 6, 17
People v. Vilardi, 76 N.Y.2d 67 (1990) ..................................................................................6, 14
Smith v. Cain, 565 U.S. 73 (2012) ................................................................................................6
United States v. Bagley, 473 U.S. 667 (1985) .............................................................5

ii
Statutes and Rules

C.P.L. § 245.80..............................................................................................................................18n
C.P.L. § 440.10 ..................................................................................................................................1
C.P.L. § 710.30................................................................................................................................8n
New York Rule of Professional Conduct 3.3..............................................................................7
New York Rule of Professional Conduct 3.4..............................................................................7
New York Rule of Professional Conduct 3.8..............................................................................7

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

THE PEOPLE OF THE STATE OF NEW YORK

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

Defendant.

__________________________________________________________

MEMORANDUM OF LAW IN SUPPORT OF JERMAINE

COX’S C.P.L. § 440.10 MOTION TO VACATE HIS
JUDGMENT OF CONVICTION
__________________________________________________________

PRELIMINARY STATEMENT

This memorandum of law is submitted on behalf of Jermaine Cox,

in support of his accompanying motion to vacate his conviction, 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. The

facts are set forth in the June 1, 2020 affirmation of Mark A. Bederow

(“Bederow Aff.”) and are established by that affirmation and the exhibits

and transcripts which are submitted on the accompanying flash drive.

1
 INTRODUCTION

Jermaine Cox’s right to due process was violated by the toxic

combination of former prosecutor Anna-Sigga Nicolazzi’s suppression of

specifically requested Brady material and her intentionally misleading

representations about the evidence.

At a trial where identification was the critical issue, Nicolazzi

concealed evidence supporting Cox’s contention that April Vasquez was

shown a photograph of Cox immediately before she identified him in a

lineup, which would have resulted in the suppression of Vasquez’s lineup

identification and likely would have precluded her in-court identification

of Cox.

After Vasquez testified that an unnamed detective showed her a

photograph of Cox before she viewed the lineup, Nicolazzi falsely assured

the court that neither Vasquez nor any other prosecution witness was

shown photographs of Cox when, in fact, Diosado Peralta failed to

identify Cox in a photo array shown to him by Detective Frank Contrera,

who also brought Vasquez to the precinct a few hours before she viewed

the lineup.

2
 But rather than call Contrera at the Wade hearing, which was re-

opened after Vasquez’s sworn admission, Nicolazzi concealed all evidence

of Contrera’s significance to Vasquez’s and Peralta’s photographic

identifications and falsely told the court that every detective who

encountered Vasquez before the lineup testified at the hearing.

Nicolazzi’s duplicity severely prejudiced Cox. Unaware that

Contrera was a necessary hearing witness in order for Nicolazzi to satisfy

her initial burden of going forward to demonstrate that the lineup was

not rendered unduly suggestive by police conduct, see People v. Chipp, 75

N.Y.2d 327, 335 (1990), the court unwittingly held that Vasquez’s lineup

could not have been tainted by an unduly suggestive photograph because

every detective who encountered her before the lineup testified that she

was not shown a photograph.

Nicolazzi made a mockery of Cox’s right to a fair trial. Her false

representations at the Wade hearing entirely contradicted two prior

sworn statements where she acknowledged possessing the evidence she

suppressed and now denied existed. Her decision to mislead Cox and the

court rather than call Contrera as a witness was no oversight. In addition

to prejudicing Cox at the Wade hearing, it enabled her to argue with

3
impunity that Vasquez’s identifications of Cox were reliable and that

Peralta’s unassailable description of the man he saw with a knife meant

that the man he saw had to be Cox.

If the defense had access to the suppressed Brady material, there

was a reasonable possibility that the outcome of the trial might have been

different because its cumulative impact would have severely undermined

Vasquez’s and Peralta’s testimony and the remaining evidence against

Cox was weak.

Accordingly, the court should vacate Cox’s conviction and dismiss

the indictment due to Nicolazzi’s deliberate Brady violations and her

intentionally misleading representations. Alternatively, the court should

vacate Cox’s conviction, suppress Vasquez’s lineup identification, and

preclude her from making and in-court identification, or if the People

dispute the evidence with relevant sworn statements, order a hearing on

the issues raised herein.

4
 ARGUMENT

COX’S CONVICTION SHOULD BE VACATED

BECAUSE NICOLAZZI’S SUPRESSION OF BRADY
MATERIAL AND HER FALSE REPRESENTATIONS
VIOLATED COX’S RIGHT TO DUE PROCESS

A. The Applicable Law

The United States Constitution and the New York Constitution

guarantee a criminal defendant the right to discover favorable evidence

in the People’s possession material to guilt. Brady v. Maryland, 373 U.S.

83, 87-88 (1963); People v. Fuentes, 12 N.Y.3d 259, 263 (2009). To

establish a Brady violation, the defense must show that (1) the evidence

is favorable (exculpatory or impeaching in nature), (2) the evidence was

suppressed, and (3) the defense was prejudiced because the evidence was

material. People v. Giuca, 33 N.Y.3d 462, 473 (2019). Whether the People

acted in good faith is irrelevant to establishing a Brady violation. People

v. Ulett, 33 N.Y.3d 512, 515 (2019); Giuca, 33 N.Y.3d at 473; People v.

Steadman, 82 N.Y.2d 1, 7-8 (1993).

Under federal law, materiality is established when there is a

reasonable probability that had the evidence been disclosed to the

defense, the result of the trial would have been different. United States

v. Bagley, 473 U.S. 667, 682 (1985). A defendant need not show it was
5
more likely than not that he would have been acquitted if the evidence

had been admitted, Smith v. Cain, 565 U.S. 73, 75 (2012); the standard

is met when the suppressed evidence “undermines confidence” in the

outcome of the trial. Kyles v. Whitley, 514 U.S. 419, 435 (1995). New York

courts apply the federal materiality standard where the defense did not

specifically request the information. Ulett, 33 N.Y.3d at 519.

Where, as here, the defense made a specific request for the

suppressed evidence, the failure to disclose that evidence is “seldom, if

ever” excusable and reversal is required if there is any reasonable

possibility that the evidence would have changed the result of the trial.

People v. Vilardi, 76 N.Y.2d 67, 77 (1990). If the withheld evidence

“would have added a little more doubt to the jury’s view of the evidence”

and it is reasonably possible that a little more doubt would have been

enough,” this standard has been satisfied. People v. Negron, 26 N.Y.3d

262, 271 (2015). When analyzing the materiality of multiple items of

suppressed evidence, the court must consider its cumulative impact.

Kyles, 514 U.S. at 436-37.

Brady is applicable to a pre-trial suppression hearing. Thus, the

People’s failure to disclose material evidence which could have affected

6
the determination of a suppression motion violates a defendant’s right to

due process. People v. Geaslen, 54 N.Y.2d 510, 516 (1981).

A prosecutor’s duty “to deal fairly with the accused and be candid

with the courts,” Steadman, 82 N.Y.2d at 7, requires a prosecutor to

correct misleading evidence if she becomes aware of it. People v. Colon,

13 N.Y.3d 343, 349 (2009); see also, New York Rules of Professional

Conduct 3.3(a)(1) and (3); 3.4(a)(1) and (3); 3.8(b). The failure to correct

inaccurate evidence requires reversal unless there is no reasonable

possibility that the error contributed to the conviction. Giuca, 33 N.Y.3d

at 473; Colon, 13 N.Y.3d at 349.

B. The Photographs Of Cox, Contrera DD5s And Vasquez Notes

Were Favorable To Cox

The photographs of Cox which were shown to Vasquez and Peralta,

the Contrera DD5s (exhibits A and B) and the Vasquez notes (exhibit C)

were favorable to Cox because they established that (a) Contrera “picked

up” Vasquez and brought her to the precinct a few hours before she

viewed the lineup, (b) Vasquez may have been shown photographs of Cox,

and (c) shortly after the crime Contrera showed a photo array to Peralta,

who failed to identify Cox (Bederow Aff., ¶ 16).

7
 The suppressed evidence proves that Nicolazzi falsely represented

that “every” relevant detective testified at the Wade hearing (id. at ¶¶

105-06, 114) and it would have established that she failed to meet her

initial burden of going forward to demonstrate that detectives did not

taint the lineup. See Chipp, 75 N.Y.2d at 335.

Vasquez’s unequivocal testimony that she was shown a photograph

of Cox (Bederow Aff., ¶¶ 92, 102-03, 111) made Contrera a necessary

witness in order for Nicolazzi to meet her “threshold responsibility” of

demonstrating that Vasquez was not shown a photograph of Cox before

she viewed the lineup. See People v. Ortiz, 90 N.Y.2d 533, 538 (1997).

Consequently, Nicolazzi’s failure to establish that the detective who

brought Vasquez to the precinct did not show her a photograph of Cox

required the suppression of Vasquez’s lineup identification of Cox and

almost certainly would have precluded her in-court identification of him.

See People v. Marshall, 26 N.Y.3d 495, 506 (2015).1

1
In addition to failing to serve C.P.L. § 710.30(1)(b) notice, it is extremely unlikely
that the People could have demonstrated by clear and convincing evidence an
independent source for Vasquez’s in-court identification. Single-photo identifications
are unduly suggestive, see Marshall, 26 N.Y.3d at 506; People v. Rodriguez, 79 N.Y.2d
445, 453 (1992); Matter of James H., 34 N.Y.2d 814, 816 (1974), and Nicolazzi’s failure
to produce the photograph or detective who showed it to her would have strengthened
the presumption that the procedure was unduly suggestive. See People v. Holley, 26
N.Y.3d 514, 524 (2015). Vasquez could not provide a detailed physical description of
8
 But Nicolazzi’s deception led the court to deny Cox’s motion to

suppress while it operated under the mistaken impression that “the only

people who would be able to taint the lineup” did not show Vasquez

any photographs (Bederow Aff. ¶ 115).

The suppressed evidence also was favorable because had he been

aware of it, Stewart Orden would have subpoenaed Contrera and

presented evidence that corroborated Vasquez’s admission that she was

shown a photograph of Cox before the lineup (exhibit I, ¶¶ 9, 11-12, 16).

Orden also could have further explored Detective Baker’s ambiguous

concession that he “might have” possessed photographs other than the

lineup photograph (Bederow Aff., ¶ 110).

The bottom line is that Nicolazzi’s failure to call Contrera, her

concealment of favorable evidence and her misleading representations

made it impossible for the court to know whether or not a detective

tainted Vasquez’s lineup. In these circumstances, the court cannot

assume that Contrera did not taint the lineup because “in the complete

absence of such proof, the People failed to meet their burden.” See Ortiz,

Cox (T124, 144-46) because she was focused on the weapons but when the detective
showed her Cox’s photograph, he suggestively asked her if he was “the guy with the
knives” (see Bederow Aff., ¶ 102).
9
90 N.Y.2d at 538. Consequently, because Cox’s possession of the withheld

evidence could have led to the suppression of Vasquez’s lineup, the

evidence was favorable and its nondisclosure violated Cox’s right to due

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

Even if Vasquez’s identifications of Cox were admissible at trial, the

photographs, Contrera DD5s and Vasquez notes still were favorable to

Cox because they would have supported the defense argument that

Vasquez’s identification of Cox was the result of overreaching by the

police (Bederow Aff., ¶¶ 133-34); see Kyles, 514 U.S. at 445-47.

Moreover, if Orden had been provided the suppressed evidence, he

would have called Contrera as a defense witness to discredit Peralta

(exhibit I, ¶ 17). At Nicolazzi’s urging (see Bederow Aff., ¶ 121), Peralta

testified that in the span of seven seconds he specifically recalled the

“particularly wavy” hair of the man he saw with a knife 18 months earlier

(id. at ¶¶ 119-20). Peralta testified that he did not recognize anyone in a

photo array shown to him (T457-58), but Nicolazzi’s suppression of the

photo array and Contrera DD5s and her representation that Peralta did

not view a photograph of Cox (see Bederow Aff., ¶¶ 53, 95-97) left Orden

powerless to prove that Cox’s photograph was included in the array.

10
 Orden could have introduced the photo array through Contrera and

destroyed whatever value the jury placed on Peralta’s purported

recollection of the perpetrator’s unique hair by proving that shortly after

the crime2 he failed to identify Cox despite being shown a photograph

that depicted Cox exactly as he appeared at the same time Peralta saw

the man with the knife (see exhibit R). This would have exposed the

falsity of Nicolazzi’s assertion that there was “no evidence” Peralta

viewed photographs shortly after the crime and destroyed her argument

that the jury “knew” the man Peralta saw with the knife was Cox (see

Bederow Aff., ¶ 143-45).

C. Nicolazzi Intentionally Suppressed Brady Material And

Intentionally Misled Cox, The Court And The Jury

Nicolazzi denied knowledge of any evidence that Vasquez and

Peralta were shown photographs of Cox or made photographic

identifications of him (Bederow Aff., ¶¶ 53, 95-97, 105-06, 114). If

Nicolazzi’s representations were truthful, she could not have disclosed

what she did not know existed. The defense was not provided any

2
Peralta testified that he viewed the photographs on the evening of the murder
(T458). Contrera wrote that he showed Peralta the array on the following evening
(exhibit B).
11
photographs of Cox which were shown to witnesses, the Contrera DD5s

or the Vasquez notes (exhibit I, ¶¶ 6-9, 11-12, 14-18).

Nicolazzi’s conduct at the Wade hearing strongly suggests that she

intentionally suppressed the evidence and then lied about it. Before the

hearing started she told Orden that there were no photographic

identifications (see Bederow Aff., ¶ 53; Exhibit I, ¶ 8). She then citied

Chipp and accurately summarized her burden of going forward (Bederow

Aff., ¶ 108; H8-9) but did not call Contrera, an obvious and necessary

witness (Bederow Aff., ¶¶ 58, 108) who just happened to possess evidence

that would have helped the defense discredit Vasquez and Peralta (id. at

¶ 16).

In June 2005, Nicolazzi was an experienced senior assistant district

attorney in the homicide bureau who had been prosecuting Cox since

November 26, 2003 (see id. at ¶ 40). She interviewed Vasquez and Peralta

shortly after they were shown photographs of Cox and then examined

them in the grand jury in late 2003 (see id. at ¶¶ 41, 43). She spoke

regularly with the case detective and reviewed the case file (id. at ¶¶ 45-

46). Her self-serving claim that she first learned detectives showed

12
photographs of Cox to witnesses was during Vasquez’s cross-examination

was absurd (id. at ¶¶ 95-97; T92).

Nicolazzi’s pre-trial sworn representations make the absurd

virtually impossible. She twice affirmed under penalty of perjury that

witnesses were shown photographs of Cox (exhibits G and H). Her March

2004 sworn claim that she intended to offer an in-court identification of

a witness who previously identified Cox in a photographic procedure

(exhibit G) must have referred to Vasquez—the only witness who

identified a photograph of Cox and made an in-court identification

(Bederow Aff., ¶ 98). Her July 2004 sworn representation that she

possessed a DD5 describing a photo array of Cox (exhibit H) must have

referred to the Contrera’s DD5 documenting Peralta’s failed

identification of Cox (exhibit B; Bederow Aff., ¶ 99).

Nicolazzi’s pattern of suppressing evidence and then feigning

ignorance of its existence after being challenged on her nondisclosure (see

Bederow Aff., ¶¶ 177-83) further proves that she intentionally misled

Cox, the court, and the jury.

Put bluntly, the evidence that Nicolazzi must have lied to Cox and

the court to further conceal her suppression of favorable evidence is

13
overwhelming. The only alternative—that from November 2003 to June

2005 Nicolazzi exhibited a stunning and incomprehensible degree of

incompetence and ignorance about her case—is extremely unlikely.3

D. The Suppressed Evidence Was Material

1. The Reasonable Possibility Standard Applies

The cumulative impact of the suppressed evidence and Nicolazzi’s

inaccurate representations must be analyzed under the reasonable

possibility standard of materiality because the defense made specific

requests for the evidence (Bederow Aff., ¶¶ 50-52); Vilardi, 76 N.Y.2d at

76-77; Giuca, 33 N.Y.3d at 473; Kyles, 514 U.S. at 436-37.

2. The Cumulative Impact Of The Due Process Violations

Was Material Under The Reasonable Possibility
Standard

There is a reasonable possibility that the cumulative impact of the

suppressed evidence would have changed the outcome of the trial because

of the devastating impact it would have had on Vasquez’s testimony and

credibility. As the only witness who identified Cox with any weapons,

3
A 2014 article noted Nicolazzi’s reputation as a “meticulous prosecutor” and
described her as Brooklyn’s “top trial prosecutor” and a “leading homicide
prosecutor…who has never lost a trial in at least 36 tries.” See New York Daily News,
January 23, 2014 “Brooklyn DA’s Office Top Prosecutor Joins Controversial Sex
Abuse Case.”
14
Vasquez unquestionably was the prosecution’s key witness. Nicolazzi’s

description of her as a “credible” witness who made “unshakable” and

reliable identifications of Cox illustrates the point perfectly (Bederow

Aff., ¶ 141-42).

But the suppressed evidence, if known to Cox and the court, would

have resulted in the suppression of Vasquez’s lineup identification and

the likely preclusion of her in-court identification of Cox (see supra, pp.

8-10). Without Vasquez’s identification of Cox, there would not have been

any evidence that Cox was the man Vasquez saw in the passenger seat

of a car with weapons (id. at ¶¶ 81, 83). Given the strong evidence that

the passenger was co-defendant Harry Wilson (id. at ¶¶ 85-90) and

Vasquez’s inability to provide physical descriptions of either man (id. at

¶ 82), her testimony would have been virtually meaningless.

Without more, the absence of strong identification evidence from

Vasquez would have made it reasonably possible that the verdict might

have been more favorable to Cox because none of the remaining

witnesses identified him with a weapon or as the man who stabbed Knox

(id. at ¶¶ 4-8).

15
 Alkhadir Anderson’s identification of Cox accomplished little

because he did not see Cox with a knife or see him stab Knox, but he did

identify Wilson with a knife and as the man who stabbed Knox (id. at ¶

118). In any event, Anderson had no credibility. He freely admitted that

he lied under oath for both sides and testified as a prosecution witness

after he was subpoenaed and met with a detective who “made sure he

knew how to testify” (id. at ¶¶ 117, 139). Nicolazzi conceded that

Anderson was “mixed up,” told multiple “versions” of what happened,

committed perjury and that she threatened him with perjury charges

when he appeared as a defense witness (id. at ¶¶ 69, 116-17, 138-40).

Whatever weight the jury gave Nicolazzi’s assertion that Peralta’s

18 month after-the-fact “specific recollection” that the man with the knife

had wavy hair meant that Peralta saw Cox with the knife (see id. at ¶

144) would have been severely undermined if the jury knew that shortly

after the crime Peralta failed to identify Cox in a photo array which

included a photograph depicting Cox exactly as he appeared when

Peralta purportedly saw at the crime scene.

Finally, the suppressed evidence would have provided the defense

with investigative leads and favorable evidence supportive of its

16
argument that the identification evidence was the product of shoddy

police work (id. at ¶¶ 133-34). This evidence also would have contradicted

Nicolazzi’s vigorous defense of the police, who she claimed went “the

extra mile” to make sure that the witness’ identifications of Cox weren’t

unduly suggestive (see id. at ¶ 142); see Kyles, 514 U.S. at 445-47

(undisclosed Brady material could have been used by defendant to attack

the “thoroughness and even the good faith of the investigation”); see also,

Ulett, 512 N.Y.3d at 521.

The undisclosed evidence could have led to the suppression and

preclusion of Vasquez’s identifications, see Chipp, 75 N.Y.2d at 335;

Geaslen, 54 N.Y.2d at 516, and would have undermined Vasquez’s

identification of Cox and Peralta’s description of the man with the knife.

Weighed against the remaining weak identification evidence and the lack

of any direct evidence linking Cox to the stabbing , the cumulative impact

of the suppressed evidence “would have added a little more doubt to the

jury’s view” of the evidence and it was reasonably possible that “a little

more doubt would have been enough.” Negron, 26 N.Y.3d at 270.

17
E. The Indictment Should Be Dismissed Due To Nicolazzi’s
Intentional Misconduct

Cox is not required to prove that Nicolazzi intentionally suppressed

evidence or purposefully misled him, see Giuca, 33 N.Y.3d at 473, but the

court should not avert its eyes to the fact that Nicolazzi’s intentional and

pervasive misconduct denied Cox a right to a fair trial and that she has

previously engaged in similar misconduct.

The appropriate sanction for the nondisclosure of evidence that

severely prejudices a defendant is left to the sound discretion of the trial

court.4 People v. Jenkins, 98 N.Y.2d 280 (2002).

One court recently dismissed an indictment due to unintentional

discovery violations that caused the defendant much less prejudice than

Nicolazzi intentionally caused Cox . In People v. Pierides,5 New York

County Ind. No. 732/2018 (February 5, 2020), the defendant (who was at

liberty) was prejudiced by the prosecution’s “troubling” and “staggering”

untimely disclosure of Brady material and other evidence. The court held

that dismissal of the indictment was the only appropriate sanction

4
C.P.L. § 245.80(2), which took effect in January 2020, specifically authorizes a court
to dismiss an indictment where a defendant has been prejudiced by the late disclosure
of evidence.
5
A copy of this unpublished case is included on the accompanying flash drive.
18
because the People’s failure to comply with repeated defense requests for

the evidence and the court’s previous instructions to disclose the evidence

prejudiced the defendant’s employment prospects.

Nicolazzi’s intentional misconduct was much worse than the

prosecutor’s conduct in Pierides and the prejudice she caused Cox is

incalculable: he has been incarcerated more than 16 years without

having received a fair trial. Cox’s conviction should be vacated and the

indictment dismissed.

19
 CONCLUSION

The Court should vacate Cox’s judgment of conviction and dismiss

the indictment. Alternatively, the court should vacate Cox’s conviction,

suppress April Vasquez’s lineup identification of Cox and preclude her

in-court identification of Cox, or if the People dispute the evidence with

relevant sworn statements, order a hearing on the issues raised herein.

Respectfully submitted,

/s/ Mark A. Bederow

______________________
MARK A. BEDEROW
Attorney for Jermaine Cox
Carnegie Hall Tower
152 West 57th Street
8th Floor
New York, New York 10019
212.803.1293
mark@bederowlaw.com

Dated: Marlboro, New Jersey

June 1, 2020

20