SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: PART 4 THE PEOPLE OF THE STATE OF NEW YORK -against- Indictment No. 8451/2008 JERMAINE COX, Defendant. REPLY MEMORANDUM OF LAW IN SUPPORT OF JERMAINE CONX’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 57% Street 8% Floor New York, New York 10019 212.803.1293 (phone) 917.591.8827 (fax) mark@bederowlaw.com Attorney for Defendant Jermaine CoxTABLE OF CO) Ss TABLE OF AUTHORITIES... INTRODUCTION... THE PEOPLE HAVE NOT CREDIBLY REFUTED COX'S CLAIMS THAT NICOLAZZI SUPPRESSED FAVORABLE EVIDENCE AND INTENTIONALLY MISLED THE COURT, DEFENSE, AND JURY... POINT IT IT IS REASONABLY POSSIBLE THAT DISCLOSURE OF THE SUPPRESSED EVIDENCE WOULD HAVE CHANGED THE OUTCOME OF THE TRIAL. CONCLUSION..TABLE OF AUTHORITIES Ryles v. Whitley, 514 U.S. 419 (1995). 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) People v. Ortiz, 90 N.Y.2d 533 (1997) . People v. Vilardi, 16 N.Y.2d 67 (199).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. REPLY MEMORANDUM OF LAW IN SUPPORT OF JERMAINE COX’S C.P.L. § 440.10 MOTION TO VACATE HIS JUDGMENT OF CONVICTION INTRODUCTIO. ‘The People’s response conspicuously lacks sworn statements from Anna-Sigga Nicolazzi and Frank Contrera, the only witnesses capable of disputing Jermaine Cox’s proof that Nicolazzi suppressed favorable evidence of Contrera’s pre-lineup contact with April Vasquez and Diosado Peralta’s failure to identify Cox in a photo array shown to him by Contrera, which has inexplicably “disappeared.”The People eschew sworn statements from cooperative firsthand witnesses (see exhibit JJ, Povazhuk letter, July 28, 2020; Olaniyan aff, | 6) in favor of specious “proof” that Nicolazzi disclosed the evidence because another prosecutor who joined the DA’s Office years after Cox’s trial recently observed some of it in the file (Povazhuk aff., § 5; Olaniyan aff., |] 2-3). Nicolazzi’s and Contrera’s silence leaves unexplained why Nicolazzi adamantly denied the existence of favorable evidence she previously swore she disclosed (Bederow aff., {| 95-97 cf. exhibit H) and how the People “lost” an exculpatory photo array prepared by Contrera (see Olaniyan aff., |] 2-4; see also, exhibits A, B and Z). The People’s failure to submit an affirmation from Nicolazzi is astonishing given their stated need for her to review the file as justification for seeking additional time to respond to Cox’s motion (exhibit JJ). It is also noteworthy because the People have not challenged compelling proof of Nicolazzi’s virtually identical misconduct in Cox’s case and the John Giuca case,! even though she publicly promotes herself as a “decorated Brooklyn prosecutor who never lost a murder case” and ‘In December 2020, for the second time in five years, Nicolazzi's suppression of exculpatory evidence will require her testimony at an evidentiary hearing on Giuca’s C.P.L. § 440.10 motion. 2markets her “prosecutorial style” to establish her bona fides as the host of the television show True Conviction. ‘The People’s flimsy response compels the Court to conclude that Nicolazzi's and Contrera’s statements would have supported Cox's claims, which remain unchallenged by any credible evidence. Accordingly, the Court should vacate Cox’s conviction and dismiss the indictment or, at a minimum, order an evidentiary hearing. ARGUMENT POINT I THE PEOPLE HAVE NOT CREDIBLY REFUTED COX’S CLAIMS THAT NICOLAZZI SUPPRESSED FAVORABLE EVIDENCE AND INTENTIONALLY MISLED THE COURT, DEFENSE, AND JURY Cox’s claims are premised on his post-trial discovery that Nicolazzi concealed evidence and intentionally misled the Court, defense, and jury about Contrera’s contacts with Vasquez and Peralta (see Bederow aff., 4] 151-57; exhibit I, 6-9, 11-18) and thus are not procedurally barred (see People’s memo, pp. 2-3). > See hitps://www.investigationdiscovery.com/tu-shows/true-conviction/about and 2/ /www.i fiondis 1.com /tu-show's /true-convis ios /anna- sigga-nicolazzi, 3The People’s assertion that the presence of the Contrera DDSs and Detective John Hafner's notes? in their file, Nicolazzi’s pre-trial sworn disclosure statement (exhibit H), and a comment by trial counsel Stewart Orden demonstrates Nicolazzi’s disclosure of the evidence and that her contradictory representations were “simple mistakes” (Povazhuk aff., 14 5, 78; People’s memo, pp. 17-19) is rendered toothless by their failure to provide an affirmation from Nicolazzi detailing her disclosure of the evidence, explaining her contradictory representations and denying that she engaged in a pattern of misconduct. By virtue of their silence (see Povazhuk aff., $ 5), the People concede suppression of the “lost” favorable photo array Contrera showed Peralta (Olaniyan aff., {| 2, 4; exhibit Z) which Nicolazzi denied existed (Bederow aff., {] 95-97). Visual evidence of Cox’s appearance when Peralta failed * Cox's motion refers to Hafner’s notes as the “Vasquez notes.” Hafner worked with Contrera, maintained custody of the file, and frequently discussed the case with Nicolazzi (Bederow aff., { 33-34, 44-45). The People interviewed Hafner (Olaniyan aff., 1/3, n. 1) but did not include an affidavit from him detailing his interactions with Contrera and Nicolazzi, including whether he gave his notes to Nicolazzi, whether Contrera gave him the missing photo array and/or his DD5s, and why he prepared DD5s memorializing interviews of every witness who viewed Cox in a lineup excep! Vasquez (see Bederow aff., 37). Although intent is irrelevant to Brady claims, see People v. Giuca, 33 N.Y.3d 462, 473 (2019), the defense has moved for the rare sanction of dismissal of the indictment due to Nicolazzi’s intentional misconduct (opening memo, pp. 11-14, 18-19). 4to identify him one day after the murder was critical to the jury’s assessment of Peralta’s credibility because more than 18 months later, he testified about the stabber’s “particularly wavy” hair and unique skin complexion (Bederow aff., {{ 119-21) and Nicolazzi assured jurors that the man Peralta saw stab Cody Knox was Cox (see id. at § 144-45). Nicolazzi knew Peralta failed to identify Cox in a photo array shortly after the crime (see exhibit H; Bederow aff., [{§ 43-46, 53) but adamantly denied that any witnesses were shown photographs of Cox after Vasquez testified that she was shown a picture of him (Bederow aff., {{ 95-97). Her crafty examination of Peralta demonstrates that her patently false representations were hardly “simple mistakes” (see People’s memo, p. 17). She did not ask Peralta to identify Cox in court or elicit his failure to identify Cox, as she did with Sharif Howard (id. at 1 127). Even after Peralta admitted on cross that he viewed photographs (without any evidence that Cox’s image was among them) (see T457-60), Nicolazzi falsely implied to the jury that Peralta viewed photographs much later than he actually did (T641) and then lied to the Court that an identification procedure she knew occurred on November 26 (see exhibits oB and H) could not have taken place until December 1 at the earliest (1650). Nicolazzi also suppressed favorable evidence of Contrera’s pre- lineup contact with Vasquez. She swore that a witness who identified Cox in a “photographic procedure” would identify him in court (exhibit G). The only witness who viewed a photograph of Cox and identified him in court was Vasquez—who unequivocally swore to this sequence of events (Bederow aff., {{] 92, 102-03) until she spoke privately with Nicolazzi, after which Vasquez conveniently “forgot” when she was shown Cox’s photograph (id. at 111). Nicolazzi’s curious representation to Orden immediately before the Wade hearing that no witnesses viewed photographs of Cox (exhibit I, § 8) demonstrated her acute awareness of the significance of Vasquez’s photographic identification to the admissibility of her lineup identification. Even after Vasquez testified that she was shown a photograph of Cox before the lineup, Nicolazzi doubled-down and sacrificed Vasquez’s credibility to continue her ruse (see Bederow aff., 1 95-98), which she never would have done if Orden was aware of her duplicity.The People’s self-serving assumption that Nicolazzi disclosed the Contrera DD5s and Hafner’s notes because another prosecutor without first-hand knowledge of Nicolazzi’s conduct observed them in the file 15 years later (Povazhuk aff., § 5, 78) ignores that there is no dispute this evidence was provided to Cox several years after the trial pursuant to a FOIL request (Bederow aff., | 151-56). The lack of Nicolazzi’s sworn statement leaves the Court without a basis to conclude the evidence was disclosed before trial. The context of Orden’s offhand reference to a photo array (T150) disposes of the People’s conjecture that it proves Nicolazzi disclosed the Contrera DD5s (see People’s memo, pp. 19-20). Understandably exasperated by Nicolazzi’s gamesmanship, Orden challenged her false claims and mentioned a photo array after she twice had sworn it existed (exhibits G and H) then informed him there were no photo identifications of Cox (exhibit I, { 8) after which Vasquez testified she was shown a photograph of Cox before she viewed a lineup (T148-49) but Nicolazzi still denied that Cox had been the subject of any photographic identifications (1148-51). Orden, a highly regarded and experienced trial attorney (see exhibit I, {| 1) would not have withdrawn a Wade motion relating to 7photographic identifications if he knew that witnesses had been shown photographs of Cox (see id. at §{ 6-9). Similarly, after Nicolazzi had the gall to question him about evidence she suppressed and lied about, Orden said that he did not know the circumstances or timing of the array (T150-51), which demonstrated his unfamiliarity with the Contrera DD5s or its contents. Finally, if Orden had known about the specifics of Peralta’s failure to identify Cox, he would have used this evidence to discredit Peralta, which would have enhanced his existing argument that Peralta’s testimony was influenced by the same suggestive tactics the police employed with Vasquez (Bederow aff., {| 133-34; see exhibit I, 4 16-17). The People’s complaint that reference to the Giuca case constitutes “baseless ad hominem attacks” on Nicolazzi (People’s memo, p. 16) is a transparent attempt to divert the Court’s attention from the obvious conclusion that their glaring failure to dispute relevant and detailed allegations of Nicolazzi’s similar misconduct in another case demolishes their reliance on her pre-trial sworn claim (exhibit H) as proof that she disclosed the Contrera DD5s (see Povazhuk aff., [ 5, 78).Irrefutable evidence proves that in Giuca’s case—just as she did here—Nicolazzi ostensibly demonstrated her disclosure of evidence in writing when, in fact, she withheld (a) grand jury testimony of a key prosecution witness, (b) two sworn recordings of prosecution witnesses and (c) a sworn exculpatory recording (Bederow aff., {{ 179-83). Moreover—just as she did here—when confronted about a withheld recording of a witness she prepped to testify, Nicolazzi absurdly pleaded ignorance about Rosario material a few weeks earlier she memorialized her intent to disclose and which was described in a detective’s notes and homicide investigative report maintained in the file (id.; see exhibit II, defense reply memo, pp. 6-8). It is telling that the People complain about purportedly unfair attacks on Nicolazzi rather than dispute overwhelming proof that in the span of three months she suppressed evidence from Cox and Giuca in a strikingly similar manner (Bederow aff., {{| 179-83), that every appellate judge who considered Giuca’s appeal of a prior C.P.L. § 440.10 motion concluded that she failed to disclose favorable evidence (id. at | 177), and that in 2019 a judge of the Court of Appeals excoriated her for intentionally suppressing favorable evidence and for misleading the 9court, defense, and jury about its existence (id. at | 178)—which is exactly what Cox alleges here. Cox’s motion and supporting documentation could not be more detailed. The People’s indefensible failure to include sworn statements from Nicolazzi and Contrera after they interviewed both and requested time for Nicolazzi to review the file (Olaniyan aff., § 6; exhibit JJ) should result in the Court concluding that the People did not provide their sworn statements because they would have supported Cox. Put simply, the People have not produced any credible evidence that Nicolazzi disclosed the Contrera DD5s, Hafner notes or the photo array shown to Peralta or that she did not intentionally mislead the Court, defense, and jury regarding its existence. POINT IT IT IS REASONABLY POSSIBLE THAT DISCLOSURE OF THE SUPPRESSED EVIDENCE WOULD HAVE CHANGED THE OUTCOME OF THE TRIAL The People concede that materiality must be analyzed under the “reasonable possibility” standard (People’s memo, pp. 1-2), under which the suppression of specifically requested evidence is “seldom, if ever” 10excusable. People v. Vilardi, 76 N.Y.2d 67, 77 (1990). The sum of the People’s argument is that Cox cannot meet this low threshold because of independent “overwhelming proof” of his guilt (People’s memo, pp. 3-15). Inacase where no witnesses identified Cox as a person who stabbed Knox (Bederow aff., { 4), Vasquez and Peralta were the key witnesses. Vasquez was the only witness who identified Cox in possession of knives (id. at | 9) and Nicolazzi exploited Peralta’s description of the man he saw stab Knox into a de facto identification of Cox (see id. at {4 120, 144). Hafner's notes contained evidence essential to determining whether the People satisfied their burden of going forward at the Wade hearing to allow the admission of Vasquez’s lineup identification of Cox. ‘There was a plethora of evidence obligating the People to explain Contrera’s interactions with Vasquez in order to satisfy their burden (see People’s memo, pp. 12-18). Hafner’s notes revealed that Contrera met Vasquez two and one- half hours after Cox was arrested and two hours before Vasquez viewed the lineup (see exhibit C; Bederow aff., 44] 36, 38). Until Nicolazzi spoke with her privately (Bederow aff., 111), Vasquez had “no doubt” that she was shown a photograph of Cox before the lineup (T151-52). Most uimportantly, Nicolazzi falsely represented that no witnesses were shown photographs of Cox and that every detective who encountered Vasquez before the lineup testified at the Wade hearing. In these circumstances, evidence of Contrera’s interaction with Vasquez was critical to determine whether the People satisfied their initial burden of going forward. See People v. Ortiz, 90 N.Y.2d 533, 538 (1997); People v. Chipp, 75 N.Y.2d 327, 835 (1990). Had the defense been aware of Hafner’s notes, it is reasonably possible, if not likely, that the Court would have suppressed Vasquez’s lineup identification because the defense would have demonstrated the People’s failure to establish that Contrera did not show Vasquez a photograph or do anything else that could have rendered her identification unduly suggestive. Similarly, the defense would have exposed the blatant falsity of Nicolazzi’s assertion that “every detective [who] would have reason to have contact” with Vasquez credibly testified that he could not have tainted the lineup (T209; Bederow aff., {4 105-08, 114-15) which would have prevented the Court from relying on Nicolazzi’s false premise as the basis for its inaccurate conclusion that 12“the only people who would be able to taint the lineup” credibly testified that they did not do so (T211). Thus, suppression of Hafner’s favorable notes violated Brady because the Court's knowledge of Contrera’s unexplained pre-lineup contact with Vasquez could have impacted its ruling on the admissibility of her lineup identification. See People v. Geaslen, 54 N.Y.2d 510, 516 (1981) (‘where...there is possession of [material evidence] which if disclosed could affect the ultimate decision on a suppression motion, and that evidence is not disclosed, such nondisclosure denies the defendant due process of law”). The People’s backward-looking assumption that even if the lineup had been suppressed they would have demonstrated by clear and convincing evidence an independent source warranting Vasquez’s in- court identification (People’s memo, pp. 8-9), urges the Court to engage in an impossible and speculative exercise 15 years too late. In any event, Vasquez, a lifelong heroin addict and drug dealer, was hardly a reliable witness. She could not remember when she got out of prison a few years earlier (1138-42). She first testified that did not see the man who existed the driver's seat clearly (T125), then said the two men had similar skin 13tone (1145-46) before claiming that the other man was “much darker” than Cox (T146, 154). She almost assuredly misidentified Cox as the passenger rather than the driver (see Bederow aff., {4 85-90), which meant that she likely saw co-defendant Harry Wilson with knives. Finally, Vasquez viewed the lineup on November 25, 2003 and identified Cox in court on June 1, 2005—a period of more than 18 months, which makes it doubtful that the People could have established an independent source for her identification by clear and convincing evidence. If the jury had known about—and more importantly seen—evidence that Peralta failed to identify Cox in a photograph depicting him exactly as he appeared at the time of the crime (Bederow aff., 124; Hafner: T417-20) before Peralta described the stabber’s “particularly wavy” hair and unique complexion, it is possible that one or more jurors would have afforded little, if any, weight to his testimony. Peralta’s acknowledgement that he was shown photographs and did not identify anyone does not render suppression of the photo array harmless (sce People's memo, p. 6, n. 7). The jury was never told that Cox's image was included in the photographs (see Peralta: T457-60). Jurors were denied the opportunity to see how Cox's hair and skin tone appeared in the uphotograph shown Peralta, whether Cox “stuck out” or resembled others depicted in the photographs, and to intelligently weigh his 2003 failure to identify Cox against his 2005 testimony before Nicolazzi exacerbated the prejudice caused by her suppression of the photo array by twice assuring jurors that “you know” Peralta saw Cox stab Knox (T611-12). The remaining evidence against Cox was weak. Alkhadir Anderson’s disgraceful testimony was riddled with perjury on behalf of both sides (see Bederow aff., {J 59-62, 69, 117, 138-40). In any event, the only person Anderson saw armed with a knife and stab Knox was Wilson (id. at { 118). Sharif Howard failed to identify Cox, gave inaccurate descriptions of Cox and Wilson, and said the “dark-skinned man” (Wilson) was the main aggressor (id. at {| 127-28). Juan Rodriguez heard about a stabbing, could not identify the perpetrators, and provided inaccurate descriptions of Cox and Wilson (id. at {| 75-76). The presence of feathers from Knox's jacket on Cox after the crime did not prove that Cox murdered Knox (People's memo, p. 5); they merely demonstrated Cox's close proximity to the crime. In sum, had the suppressed Contrera DD5s, Hafner's notes and photo array containing Cox’s image been disclosed, the cumulative 15impact of that evidence, see Kyles v. Whitley, 514 U.S. 419 (1995), would have created a reasonable possibility that the verdict might have been more favorable to Cox. CONCLUSION For the reasons stated herein and in Cox’s prior submissions, the Court should vacate Cox’s judgment of conviction and dismiss the indictment, or in the alternative, grant an evidentiary hearing on the motion. Respectfully submitted, /s/ Mark A. Bederow MARK A. BEDEROW Aitorney for Jermaine Cox Carnegie Hall Tower 152 West 57% Street 8% Floor New York, New York 10019 212.803.1293 mark@bederowlaw.com Dated: Marlboro, New Jersey September 21, 2020 16