SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS: PART 19

THE PEOPLE OF THE STATE OF NEW YORK

-against-
Indictment No.
8166/2004
JOHN GIUCA,

Defendant.

________________________________________________________________

DEFENDANT JOHN GIUCA’S POST C.P.L. § 440.10

HEARING REPLY MEMORANDUM OF LAW
________________________________________________________________

MARK A. BEDEROW
DANIEL L. BIBB
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

Attorneys for Defendant John Giuca

 TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................................................................... ii
INTRODUCTION......................................................................................................................1
ARGUMENT.................................................................................................................................4
POINT I
THE DEFENSE HAS PROVEN BY A PREPONDERANCE OF THE
EVIDENCE THAT THE PEOPLE DID NOT DISCLOSE THE
INGRAM RECORDING TO GIUCA BEFORE TRIAL........................................4
POINT II
THERE IS A REASONABLE POSSIBILITY THAT THE
CUMULATIVE IMPACT OF RUSSO’S ADMISSION TO INGRAM
AND THE SUPPRESSED AVITTO IMPEACHMENT EVIDENCE, IF
KNOWN BY THE JURY, WOULD HAVE RESULTED IN A MORE
FAVORABLE OUTCOME FOR GIUCA.....................................................................20

A. Russo’s Statement That Giuca Refused to Take the Murder

Weapon From Him Was Admissible As a Declaration Against
His Penal Interest.................................................................................................20
B. There Is No Basis to Conclude That Ingram Would Not Have
Testified As a Defense Witness......................................................................30
C. The Cumulative Impact of Ingram’s Testimony And Evidence
of Nicolazzi’s Involvement in Avitto’s Criminal Case, If
Known By the Jury, Would Have Been Material Under the
Reasonable Possibility Standard..................................................................36

CONCLUSION...........................................................................................................................42

i
 TABLE OF AUTHORITIES

Cases

Chambers v. Mississippi, 410 U.S. 284 (1973) ........................................................20

Cone v. Bell, 556 U.S. 449 (2009) ................................................................................................38
People v. Addimando, 197 A.D.3d 106 (2nd Dept. 2021) ..................................1, 9
People v. Brensic, 70 N.Y.2d 9 (1987) ..........................................................2, 22, 23, 30
People v. Bussey, 6 A.D.3d 621 (2nd Dept. 2004) ......................................................8n
People v. Deacon, 96 A.D.3d 965 (2nd Dept. 2012) ...................................................20
People v. DiPippo, 27 N.Y.3d 127 (2016) .......................................................................2
People v. Ennis, 11 N.Y.3d 403 (2008) ....................................................................22-23
People v. Fogle, 10 A.D.3d 618 (2nd Dept. 2004) .......................................................8n
People v. Giuca, 33 N.Y.3d 462 (2019) .................................................................passim
People v. Giuca, 158 A.D.3d 642 (2nd Dept. 2018) ...........................................9n, 18
People v. Nau, 21 A.D.3d 568 (2nd Dept. 2005) .........................................................8n
People v. Paperno, 54 N.Y.2d 294 (1984) .....................................................................41
People v. Rong He, 34 N.Y.3d 956 (2019) .........................................................2, 30, 35
People v. Settles, 46 N.Y.2d 154 (1978) ..................................................................21, 23
People v. Soto, 26 N.Y.3d 455 (2015) .......................................................................21-22
People v. Ulett, 33 N.Y.3d 512 (2019) ............................................................................33

Statutes
C.P.L. § 440.30(6) .............................................................................................................................1

ii
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS: PART 19

THE PEOPLE OF THE STATE OF NEW YORK

-against-
Indictment No.
8166/2004
JOHN GIUCA,

Defendant.

__________________________________________________________

DEFENDANT JOHN GIUCA’S POST C.P.L. § 440.10

HEARING REPLY MEMORANDUM OF LAW
__________________________________________________________

INTRODUCTION

Constrained by Nicolazzi’s failure to offer any proof that she

disclosed the Ingram recording, the People grasp at straws by arguing

that her intent to disclose it, and the “faulty” memories of two attorneys

who unequivocally testified that she did not, demonstrate the defense’s

failure to establish a “reasonable belief” the Ingram recording was not

disclosed before trial. See C.P.L. § 440.30(6); People v. Addimando, 197

A.D.3d 106 (2nd Dept. 2021).

1
 This desperate argument ignores the “pink elephant” in the

courtroom: Nicolazzi’s pattern of withholding significant Brady and

Rosario material from Giuca, which includes, at a minimum, evidence of

her personal involvement in Avitto’s case immediately after he offered to

cooperate with the prosecution, People v. Giuca, 33 N.Y.3d 462, 476-78

(2019), and the Denihan recording, a sworn statement of a “crucial”

prosecution witness (Nicolazzi: 6/3/21, p. 89).

The People also disregard Nicolazzi’s failure to provide the defense

with “meaningful access” to Ingram, People v. Rong He, 34 N.Y.3d 956,

958 (2019), which prevented the defense from interviewing Ingram and

deprived Giuca of his right to present evidence at a pretrial hearing

regarding the admissibility of his testimony. People v. Brensic, 70 N.Y.2d

9, 16 (1987).

Instead, the People substitute their judgment in place of the trial

court and 16 years after-the-fact decree that Ingram’s testimony would

have been unreliable as a matter of law. Ironically, they urge this Court

to condone Nicolazzi’s denial of Giuca’s right to “a meaningful

opportunity to present a complete defense,” People v. DiPippo, 27 N.Y.3d

127, 136 (2016), including his right to introduce Russo’s exculpatory

2
admission and to argue about the statement’s reliability, even though

they introduced several of Russo’s other statements at his trial, where

Nicolazzi was able to argue which of them were reliable and which were

not.

Giuca’s motion, its exhibits and the hearing evidence easily

establish by a preponderance of the evidence that Nicolazzi suppressed

Russo’s admission to Ingram that Giuca refused to take the murder

weapon from him after he shot Fisher. If the jury had known about that

evidence and that Nicolazzi directly intervened in Avitto’s case

immediately after he offered to cooperate against Giuca, its cumulative

impact would have substantially undermined the “strong evidence” of

Giuca’s guilt, including his purported disposal of the murder weapon and

his allegedly incriminating statements, Giuca, 33 N.Y.3d at 478, and

created a reasonable possibility of a more favorable outcome for him at

trial.

Accordingly, the Court should grant Giuca’s C.P.L. § 440.10 motion,

vacate his conviction, and order a new trial.

3
 ARGUMENT

POINT I

THE DEFENSE HAS PROVEN BY A PREPONDERANCE OF THE

EVIDENCE THAT THE PEOPLE DID NOT DISCLOSE THE
INGRAM RECORDING TO GIUCA BEFORE TRIAL

Nicolazzi provided Gregory and Fink with the same materials

before trial (Nicolazzi: 6/2/21, p. 95). Both defense attorneys are virtually

certain they first learned about Russo’s admission to Ingram when they

were provided the Ingram recording in 2018 (Gregory: 6/14/21, p. 121;

Fink: 5/11/21, pp. 191-94).

Fink reviewed all of the material provided to him by Nicolazzi

(5/11/21, pp. 181-82). His careful review of the Rosario material led him

to recognize that Nicolazzi did not disclose the Denihan recording before

trial (T114-15, 120). He attempted to interview critical witnesses against

Russo (5/11/21, pp. 183-85; T505, 689). If he had been aware of a witness

whose testimony incriminated Russo while exculpating Giuca—such as

Ingram—he would have attempted to locate and interview that witness.

But Fink did not pursue Ingram before trial because he was unaware of

Russo’s admission to him (5/11/21, pp.189-94).

4
 Fink’s reasoning for why he is confident that he did not receive the

Ingram recording before trial made him a credible and reliable witness.

There is no reason for this Court to discredit Fink’s testimony simply

because he did not recall every detail from every cross-examination of

every witness to whom Russo made statements at a 2005 trial (see

People’s post-hearing memo, August 23, 2021, “People’s memo,” p. 53).

Gregory is equally confident and his testimony could not have been

any clearer. If he had received the Ingram recording before trial, he

“100%” would have listened to it. If he knew Russo admitted murdering

Fisher but that Giuca refused to take the murder weapon from him

immediately after the crime, he would have pursued Ingram to determine

his viability as a defense witness (6/14/21, pp. 40-41, 58, 68, 121). And

like Fink, Gregory did not even attempt to locate Ingram because he did

not know about his interaction with Russo (id. at 36, 50, 58).

Given the People’s concession that there is no proof that Nicolazzi

disclosed Ingram’s statement (People’s memo, p. 49), Fink’s and

Gregory’s testimony easily demonstrates by a preponderance of the

evidence that Nicolazzi did not disclose Russo’s favorable admission to

Ingram before trial.

5
 Nevertheless, the People stubbornly maintain Gregory (and Fink)

must have “forgotten” that he received the Ingram recording before trial.

They speciously cite Gregory’s failure to recall Bethune’s testimony as

proof that he must have similarly forgotten Ingram (People’s memo, p.

53) even though Russo’s statement to Bethune did not mention Giuca. In

contrast, Russo’s admission to Ingram contradicted key witnesses

against Giuca and undermined Nicolazzi’s two inconsistent theories of

Giuca’s guilt: (1) he took the murder weapon from Russo and gave it to

Beharry (T1004-06, 1021-22) and (2) he attacked Fisher with the murder

weapon before Russo (and possibly Giuca) shot him to death (T1015-18).

The People posit that Gregory probably dismissed Ingram

immediately after he heard the recording because Russo “lied” about the

caliber of the murder weapon (People’s memo, p. 54). The idea that

Gregory immediately discounted Ingram because an unstable and violent

thug who kept a shrine to his crime on his bedroom wall (T726-27, 732)

initially bragged to another inmate that he used a more powerful

handgun than he did is preposterous. In any event, Russo did eventually

acknowledge to Ingram that he shot Fisher with a .22 (joint ex. 2, pp. 13-

14).

6
 The People similarly assume that Gregory concluded Ingram would

not have been a helpful witness to the defense because Russo “lied” when

he told Ingram that he called Giuca after the murder (People’s memo, p.

54). Gregory stipulated that a 911 call was received at 6:40 a.m. (T861).

His knowledge that Russo called Giuca at approximately 6:38 a.m.

indicates he did not know that Russo told Ingram he called Giuca after

he murdered Fisher. Gregory would not have stipulated to evidence that

placed Russo’s call to Giuca before the 911 call if he had known that Russo

told Ingram he called Giuca after the murder.

Gregory’s trial conduct demonstrates the lack of significance he

attached to the exact time of the murder and further suggests that he did

not have the Ingram recording. He did not cross-examine the 911 caller

about how long he waited to call 911 after he heard gunshots even though

the witness acknowledged that he hid under the table before he called

the police (T129, 133-38). Gregory did not ask any questions of a police

officer who testified that “around 6:30 a.m.” he responded to a radio call

for “shots fired” (T736-40).

It is not believable that Gregory listened to the Ingram recording

and abandoned his obligation to investigate a source of favorable

7
evidence1 because he immediately concluded that Russo lied to Ingram.

To the contrary, Gregory is adamant that he would have investigated

Ingram if he had been aware of Russo’s admission to him and that it

would have been “on his conscience” if he had not done so (6/14/21, p. 68).

The People’s belief that Gregory’s opening statement “possibly”

demonstrated his possession of the Ingram recording is wishful thinking

(People’s memo, pp. 57-59). They conveniently discard Matthew Giuliano

as a possible source of Gregory’s description of the post-murder encounter

between Giuca and Russo even though Gregory spoke to him before trial

(6/14/21, p. 100) and stated to the jury that Giuca told Giuliano about his

argument with Russo immediately after it occurred (T50). Notably, at the

conclusion of Gregory’s opening statement, Nicolazzi inquired whether

Giuliano was a possible defense witness, but not whether Ingram was a

possible defense witness.

The People’s favorable interpretation of privileged attorney-client

conversations to divine that Giuca could not have been a source of

1
The People’s argument implies that Gregory deprived Giuca of meaningful
representation. See People v. Fogle, 10 A.D.3d 618, 618-19 (2nd Dept. 2004); see also,
People v. Nau, 21 A.D.3d 568, 569 (2nd Dept. 2005); People v. Bussey, 6 A.D.3d 621,
623 (2nd Dept. 2004).
8
Gregory’s opening remarks about Giuca’s argument with Russo is

reminiscent of Carnac the Magnificent’s ability to provide answers to

unseen questions. The Court should reject their wild speculation that

Gregory would not have mentioned the incident in his opening if he was

not committed to calling Giuca as a witness (People’s memo, p. 58).

In contrast to Gregory’s and Fink’s unequivocal testimony that they

did not receive the Ingram recording, Nicolazzi’s inability to provide any

evidence of its disclosure (6/2/21, pp. 60-61, 71) and her documented

record of withholding favorable evidence from Giuca, Giuca, 33 N.Y.3d at

476-78, makes it “reasonable to believe” that she did not disclose Russo’s

favorable admission to Giuca. See Addimando, 197 A.D.3d at 112.

Nicolazzi, formerly styled as a prosecutor “who never lost a murder

case”2 for her career in media, was organized, meticulous and careful

(Nicolazzi: 6/2/21, p. 45, 95-102; Carvajal: 5/20/21, p. 90). A “list-maker”

who “paid as much attention to detail as she could,” she maintained an

2
After the Appellate Division reversed Giuca’s conviction due to Nicolazzi’s
suppression of Giglio material and her failure to correct Avitto’s false testimony,
People v. Giuca, 158 A.D.3d 642, 646-47 (2nd Dept. 2018), she scrubbed reference to
her “perfect” record from her promotional materials and she removed the Fisher case
from her “notable” convictions, which, prior to the reversal, had been listed first
(6/2/21, pp. 101-02).
9
exact reproduction of the materials she provided to Giuca and Russo

(6/2/21, pp. 45, 49; 6/3/21, p. 59).

Nicolazzi received extensive training in Brady, understood her

professional obligation to disclose favorable evidence and “erred on the

side of caution” when disclosing evidence (6/2/21, pp. 106-07). She

supervised Carvajal for years, who unlike Nicolazzi, methodically

documented her disclosure of Brady material, which included providing

Giuca and the Court with a 2018 statement from Russo that was

favorable to Giuca (5/20/21, pp. 99-101).

Nicolazzi recognized that Russo’s admission to Ingram was

favorable to Giuca (6/2/21, p. 131). She asked Ingram if he intended to

speak to Gregory regarding Russo’s statement to him. She knew that as

of July 21, 2005, Ingram had not spoken to Gregory (joint ex. 2, p. 23).

On July 25, 2005, Ingram was moved out of Rikers Island (joint ex. 11).

In these circumstances, it is incomprehensible that Nicolazzi disclosed

the Ingram recording but cannot present any “proof positive” that she did

(6/2/21, p. 60; def. ex. A, ¶ 7).

Nicolazzi’s inability to provide any evidence that she disclosed the

Ingram recording has left the People to weakly argue that her intent to

10
do so means that she likely did. Nicolazzi’s decision to record Ingram,

order a transcript and prepare a witness folder for him do not

demonstrate her intent to disclose the Ingram recording (People’s memo,

pp. 49-50). She testified that she believed Ingram was a “plant” sent by

Giuca who she immediately deemed unreliable. She admitted that she

thought Ingram might be a defense witness and that it was her practice

to “lock in” possible defense witnesses by recording them (6/2/21, pp. 127-

31). If Nicolazzi’s testimony is to be believed, her documentation of her

interview with Ingram and preparation of a witness folder demonstrates,

if anything, her intent to confront him as a defense witness.

Nicolazzi’s request for a transcript of the recording also is

meaningless in light of her testimony that she had no obligation to

disclose it under Rosario, that she knew it likely would not have been

created until the trial was over and that ordering a transcript was not a

priority because she knew that she was not going to call Ingram as a

witness (id. at 63-64).

The significance of Nicolazzi’s placement of Ingram on her witness

list, her disclosure of his convictions and her representation that she

intended to disclose 15 recordings in her Rosario cover letter as proof that

11
she disclosed the Ingram recording (People’s memo, p. 50) is eviscerated

by her nondisclosure of the Denihan recording, which constituted Rosario

material of “one of the most important witnesses in the case” (Nicolazzi:

6/3/21, p. 122).

Under the People’s reasoning, Nicolazzi presumably disclosed the

Denihan recording because she created a Denihan witness folder (6/3/21,

p. 144), included Denihan on her witness list (joint ex. 8), disclosed

Denihan’s date of birth (6/3/21, p. 131), disclosed Rosario material

referencing the Denihan recording (6/2/21, pp. 24, 28; 6/3/21, pp. 85-104;

def. exs. N, O, P) and pledged in writing to disclose all 15 recordings (joint

ex. 5).

But Nicolazzi “screwed up” and did not disclose the Denihan

recording before trial (id. at 122). The People offer no reason why this

Court should discount Gregory’s and Fink’s unequivocal testimony that

the Ingram recording was not disclosed before trial and instead assume

Nicolazzi disclosed an exculpatory recording of a non-testifying witness

she now claims was an unreliable defense “plant” (6/3/21, pp. 132-34)

when there is conclusive proof that she failed to disclose (1) the sworn

recording of a significant prosecution witness she personally prepped and

12
examined at trial (6/2/21, pp. 25-26) and (2) Giglio material that would

have exposed her direct involvement in Avitto’s criminal case. Giuca, 33

N.Y.3d at 478.

Nicolazzi’s ridiculous explanation—that she did not know the

Denihan recording existed—as the reason for its untimely disclosure,

combined with her documented history of suppressing favorable evidence

from Giuca, should lead this Court to reject all of her testimony regarding

her disclosure of evidence to Giuca.

Based upon her reference to all 15 recordings in her Rosario cover

letter (see Carvajal: 5/20/21, pp. 125-26), Nicolazzi knew that Denihan’s

recording was among the 15. Before she disclosed the Rosario material,

she reviewed “more than once” documents which documented Denihan’s

sworn recording and its substance (6/2/21, pp. 24, 28; 6/3/21, pp. 85-104)

including:

• Garbarino’s Bates-stamped DD5, titled “Audio

Interview of Meredith Denihan,” which
described her October 15, 2003, recorded
statement made to ADA Murphy in his presence
and identified the recording as “A03-0645” (def.
ex. N),

• Garbarino’s Bates-stamped spiral notes which

included a five-page summary of his interview
with Denihan and referenced “10/15/03 0340-
13
 0405 A03-0645 with ADA Stephen Murphy”
(def. ex. O),

• Dunne’s spiral notes3 which contained 11-pages

of notes describing an October 14 interview of
Denihan with Garbarino and at the end
reference “audio w/ADA Murphy, DA off…A03-
0645” (def. ex. P), and

• The HIR, which includes a full-page entry

summarizing “the sworn audiotaped statement
by Meredith Denihan taken by Stephen
Murphy on 10/15/03 at 350 Jay Street. Also
present Detective Garbarino. Audiotape A03-
0645” (joint ex. 21).

In March 2005, hearings were held regarding Denihan’s

identifications of Giuca and Russo. Nicolazzi redacted Denihan’s name

and her substantive statements from any documents she provided as

Rosario material for the hearing (6/2/21, pp. 34-35; 6/3/21, pp. 125-26).

She provided Giuca and Russo with a redacted copy of the HIR, which

concealed its reference to Denihan’s name and the substance of the

Denihan recording (6/3/21, pp.123-27).

Thus, five months before she represented her intent to disclose all

of the recordings, Nicolazzi obviously knew the Denihan recording

3
The People were unable to locate a Bates-stamped copy of Dunne’s notes. During the
discussion over the nondisclosure of the Denihan recording, Nicolazzi told the trial
court that “the defense has handwritten notes of Detective Dunne” (T121).
14
existed based upon her conscious decision to redact Denihan’s name and

the substance of her sworn statement from the HIR because that

information was not relevant to Denihan’s identifications of Giuca and

Russo (6/2/21, pp. 34-35; 6/3/21, p. 126).

Yet when confronted about her nondisclosure of the Denihan

recording during the trial, Nicolazzi professed complete ignorance to the

fact that Denihan had made a recorded statement (T114-16, 120). This

claim is absurd given that Nicolazzi prepped Denihan to testify, she

redacted the HIR, and she reviewed defense exhibits N, O and P “multiple

times” (6/2/21, pp. 24, 28, 34-38; 6/3/21, pp. 85-106). Simply put,

Nicolazzi’s explanation for her failure to disclose the Denihan recording

is not credible, if not deliberately false.

As if her nondisclosure of the Denihan recording and her dubious

explanation for it are not enough for the Court to reasonably conclude

that Nicolazzi probably did not disclose the Ingram recording, she also

failed to disclose the unredacted HIR (which included evidence of the

Denihan and Romero recordings), the Romero recording and Calciano’s

grand jury minutes as Rosario material before trial.

15
 One day after she disclosed the Denihan recording, Nicolazzi told

the trial court that she and McNeill

went back again, it was early on, scra[tch] we never

had so we provided [a] full copy of that to counsel
this morning and there was one other tape of Mr.
Romero…that I gave both defense [counsel] copies
this morning

(T174). The only reasonable interpretation of Nicolazzi’s statement is

that after she disclosed the Denihan recording, she located the

unredacted HIR (“the scratch”) and after she saw its reference to the

Romero recording, she disclosed the unredacted HIR and the Romero

recording for the first time.

There is no basis for the Court to dismiss Nicolazzi’s unequivocal

on-record statement in favor of the People’s assumption that her

September 15, 2005, disclosure of the Romero recording was duplicative4

(People’s memo, pp. 50-51). In order to square this self-serving claim with

Nicolazzi’s assertion that she did not know that the Denihan recording

existed, the Court must (1) dismiss the plain meaning of Nicolazzi’s on-

4
That the defense did not allege that the Romero recording was not disclosed before
trial (People’s memo, p. 50) is easily explained by Nicolazzi’s redaction of it from the
HIR in March 2005 and her “discovery” of the unredacted HIR during the trial. There
is no other document that references the Romero recording. Obviously, neither
attorney could have possibly stated that they did not receive a recording they did not
know existed.
16
representation about locating the unredacted HIR and Romero recording,

(2) credit Nicolazzi’s claim from the previous day that she did not know

the Denihan recording existed even though she previously redacted

reference to it from the HIR and reviewed several documents describing

it, (3) believe that she did know the Romero recording existed (reference

to which she also redacted from the HIR) before trial, (4) believe that she

disclosed the Romero recording, but not the Denihan recording, before

trial, and (5) conclude that after she discovered the unredacted HIR and

saw its reference to the Romero recording, without being prompted by the

defense, she disclosed a second copy of the Romero recording.

The trial record also demonstrates that Nicolazzi failed to disclose

Calciano’s grand jury minutes before trial. Once Calciano testified that

she had appeared before the grand jury, Gregory indicated that he had

been told she was not going to testify before the grand jury and that he

had not received a copy of her transcript (T622, 631).

Nicolazzi did not refute Gregory’s claims. She did not show the

court and counsel her Bates-stamped copy of the transcript, which

supposedly proves that she disclosed the transcript before trial (see

People’s memo, p. 51). She did not review her exact reproduction of the

17
materials she disclosed to the defense to confirm or dispel Gregory’s

allegation (see 6/3/21, pp. 79-80).

Instead, Nicolazzi remained silent as Justice Marrus placed her

nondisclosure of significant Rosario material on the record, considered a

defense motion for a mistrial and afforded the defense the right to recall

Calciano (T631-32, 744). It strains credulity that Nicolazzi, wrongfully

accused of failing to disclose the prior sworn testimony of a key witness

a few days after the fiasco surrounding her nondisclosure of the Denihan

recording, would not have conclusively demonstrated her disclosure of

such important Rosario material. Indeed, in 2015, Nicolazzi admitted

under oath that she did not disclose Calciano’s grand jury minutes until

Gregory demanded them during the trial (6/3/21, p. 85; 11/23/15, pp. 453-

54).

Finally, this Court should not ignore that 10 out of 10 appellate

judges who reviewed the record from Giuca’s 2015 C.P.L. § 440.10 motion

and hearing concluded that Nicolazzi withheld favorable impeachment

material and failed to correct Avitto’s misleading testimony. Giuca, 33

N.Y.3d at 476-78; Giuca, 158 A.D.3d at 646-47. Nor should this Court

dismiss Judge Rivera’s explanation of how Nicolazzi intentionally

18
suppressed favorable evidence and deliberately misled Giuca, the trial

court and the jury about her own involvement in Avitto’s case. Giuca, 33

N.Y.3d at 480-83.

In sum, Giuca’s motion, its exhibits and the hearing evidence have

established:

• Gregory’s and Fink’s virtual certainty that

neither the Ingram recording nor other
evidence of Russo’s admission to Ingram was
disclosed before trial,

• Nicolazzi cannot state that she disclosed the

Ingram recording,

• there is no direct proof that Nicolazzi disclosed

the Ingram recording,

• Nicolazzi did not disclose the Denihan

recording, which was Rosario material, before
trial,

• Nicolazzi did not disclose the unredacted HIR,

which was Rosario material, before trial,

• Nicolazzi did not disclose the Romero recording,

which was Rosario material, before trial,

• Nicolazzi did not disclose Calciano’s grand jury

minutes, which was Rosario material, before
trial,

• two appellate courts have concluded that

Nicolazzi previously suppressed favorable
impeachment material from Giuca, and
19
 • a judge of the Court of Appeals has expressly
concluded that Nicolazzi intentionally
suppressed evidence and deliberately misled
Giuca, the trial court and the jury by eliciting
materially misleading testimony from Avitto.

Accordingly, the defense has easily demonstrated by a

preponderance of the evidence that the People did not disclose before trial

evidence of Russo’s favorable admission to Ingram.

POINT II

THERE IS A REASONABLE POSSIBILITY THAT THE

CUMULATIVE IMPACT OF RUSSO’S ADMISSION TO INGRAM
AND THE SUPPRESSED AVITTO IMPEACHMENT EVIDENCE,
IF KNOWN BY THE JURY, WOULD HAVE RESULTED IN A
MORE FAVORABLE OUTCOME FOR GIUCA

A. Russo’s Statement That Giuca Refused to Take the

Murder Weapon From Him Was Admissible As a
Declaration Against His Penal Interest

Giuca’s “fundamental right to present a defense,” People v. Deacon,

96 A.D.3d 965, 968 (2nd Dept. 2012), may not be thwarted by a

“mechanical” application of the hearsay rule. Chambers v. Mississippi,

410 U.S. 284, 302 (1973). However, the People’s argument that Russo’s

admission that Giuca would not take the murder weapon from him after

the crime does not qualify as a declaration against his penal interest rests

20
upon a hypertechnical application of the hearsay rule (People’s memo,

pp. 66-82).

A statement is admissible as a declaration against penal interest

when (1) the declarant is unavailable, (2) the declarant knew at the time

he made the statement that it was against his penal interest, (3) the

declarant had competent knowledge of the facts underlying the

statement and (4) supporting circumstances independent of the

statement itself attest to its trustworthiness and reliability. People v.

Settles, 46 N.Y.2d 154, 167 (1978).

Satisfaction of the “trustworthiness and reliability” prong requires

some evidence other than the declaration which tends to support the facts

asserted in the statement. The standard is satisfied if there is a

reasonable possibility that the statement might be true, without regard

to whether the court believes the statement is true or the apparent

strength of the People’s case. Settles, 46 N.Y.2d at 168-70 (emphasis

added).

When the defendant seeks to introduce a statement as a declaration

against penal interest, the threshold for admissibility is less than when

it is offered by the prosecution. People v. Soto, 26 N.Y.3d 455, 462 (2015);

21
Brensic, 70 N.Y.2d at 15. A defendant is not required to demonstrate that

the penal consequences to the declarant “all but rule out a motive to

falsify.” Soto, 26 N.Y.3d at 462. Due process requires that where the

defendant demonstrates the possibility of trustworthiness, it is the role

of the jury to determine its evidentiary value. Id.

Relying upon a strained interpretation of People v. Ennis, 11 N.Y.3d

403 (2008), the People argue that Russo’s admission that Giuca refused

to take the murder weapon from him immediately after he shot Fisher

did not incriminate Russo because it was not relevant to whether Russo

robbed and killed Fisher (People’s memo, p. 67). In Ennis, the Court held

that the co-defendant/declarant’s statement that the defendant was not

present at the time of a shooting was not “directly inculpatory” of the

declarant.5 11 N.Y.3d at 413. In other words, the Court reasoned that

although the declarant’s statement established his presence at the scene

of the shooting, it did not directly implicate him in the actual shooting.

5
The declarant in Ennis may not have believed that his statement was incriminating
because it was made during a proffer session. 11 N.Y.3d at 413. Russo knew that he
incriminated himself by admitting to Ingram that he murdered Fisher and
unsuccessfully tried to have Giuca take the murder weapon from him.

22
 Conversely, it is hard to fathom how Russo’s statement to Ingram

could have been more harmful to him. Russo was charged with murder

and robbery under theories that he possessed and used an unrecovered

firearm and simple possession of a firearm (ex. AAAA to Bederow aff.,

August 5, 2019). His statement that Giuca refused to take the murder

weapon from him was an admission that he possessed and attempted to

dispose of the unrecovered firearm, which “disserved” and “directly

inculpated” him on any count alleging his use and/or possession of a

firearm. Ennis, 11 N.Y.3d at 413; Brensic, 70 N.Y.2d at 16. As Nicolazzi

explained, “if he’s handing him something, he’s possessing it, so that

piece would be inculpatory” (6/2/21, p. 144).

The circumstances surrounding Russo’s incriminating admission to

Ingram establish a reasonable possibility that it might have been true.

See Settles, 46 N.Y.2d at 168-70. Just as Ingram told Nicolazzi, his and

Russo’s DOC and Bellevue records prove that on July 19, 2005, they

travelled to and from Bellevue together in a manner that enabled them

to speak to each other on the bus and at Bellevue (see joint exs. 11, 12,

24, 25, 26, ¶ 1; Vasaturo: 5/20/21, pp. 158, 166-69, 174, 197). This

inconvenient fact has led the People to abandon a previous argument that

23
Ingram’s claim that he spoke to Giuca and Russo separately was

“implausible” (see People’s memo, November 26, 2019, p. 22).

The day after he met Russo, Ingram contacted his attorney and told

him that he wanted to speak to a prosecutor about a murder case (joint

ex. 26, ¶ 3). The next day, Ingram met with Nicolazzi and gave her a

sworn statement, which she agreed made his statement more reliable

than an unsworn statement (6/2/21, p. 125); see (T981-82) (Nicolazzi

argued to Russo’s jury that Ware’s sworn statement was more reliable

than his unsworn statement).

The substance of Russo’s admission to Ingram might have been true

because it was mostly consistent with the People’s case. Russo’s claims

that he left Giuca’s home with Fisher, robbed him, shot him after a

physical struggle and returned to Giuca’s home shortly after the crime

(joint ex. 2, pp. 11-12, 15) were consistent with Nicolazzi’s arguments to

Giuca’s jury (see T980, 982-83, 987, 989-90, 1006, 1015-17, 1019).

Boxed in by the fact that Ingram truthfully and accurately

described his chance encounter with Russo and that Russo’s admission

was mostly consistent with Nicolazzi’s theory of the case, the People

portray Ingram as a physically intimidating and menacing brute who

24
somehow coerced Russo into incriminating himself while falsely

exculpating Giuca (see People’s memo, p. 72).

It was Russo who started the conversation about his and Ingram’s

respective crimes (joint ex. 2, pp. 4-5). After he volunteered that he was

charged with murder, Russo began describing the circumstances of his

case before Ingram mentioned “snitching” (id. at 5). There is no evidence,

and it is not believable that Ingram bullied or otherwise coerced a violent

and unstable sociopath who frequently bragged that he murdered Fisher

into discussing the details of his case but falsely exculpating Giuca.6

Assuming, arguendo, that Giuca was involved in the crime, it still makes

no sense that Russo would accurately describe his role in Fisher’s murder

but claim that Giuca refused to take the murder weapon from him.

Given Russo’s volatile nature, it is essential that the Court has an

understanding of his demeanor when he spoke to Ingram before

concluding that his statements to Ingram were coerced. Nicolazzi knew

about Russo’s aggressive and unstable personality before she met Ingram

6
Nicolazzi argued to Russo’s jury that he bragged to Valentin “I did really do this, you
know I’m the one who shot the kid. Again, he wanted to make sure that she knew he
was the tough guy, he is so trying to portray himself. [He] was proud, proud by his
words of the devastation he caused” (T989).
25
(see joint ex 33, pp. 46-47), but for reasons known only to her, she did not

ask Ingram to describe Russo’s demeanor during their conversations.

Similarly, Nicolazzi’s imprecise questioning of Ingram makes it

impossible to determine whether any other inmates were on the bus

and/or at Bellevue with Russo and Ingram (see People’s memo, p. 72).

In these circumstances, there is no basis for the Court to credit the

People’s self-serving interpretation of events when there are unknown

material facts and the ambiguous record was caused by the perfect storm

resulting from Nicolazzi’s failure to clarify Ingram’s statement, her

suppression of the Ingram recording, and her failure to provide the

defense with meaningful access to Ingram.

Russo’s purported “lies” to Ingram about the caliber of the weapon

and the timing of a phone call to Giuca do not render Russo’s admission

to Ingram unreliable (People’s memo, pp. 73-74). As described, supra, pp.

6-8, Russo did tell Ingram that he used a .22 and the only evidence that

Russo’s call to Giuca might have preceded the murder was Gregory’s

unwitting stipulation to a 911 call being received at 6:40 a.m. Moreover,

given Nicolazzi’s argument that Giuca lied to Avitto before he told him

the truth (T1008), there is no reason why the same could not have been

26
true with respect to Russo’s statements to a different jailhouse

informant.

The People ignore that Russo’s description of the crime was

substantially similar to the available evidence and Nicolazzi’s theory of

the case, see, supra, P. 24; defense memo, August 5, 2019, pp. 23-27, and

unilaterally determine that Russo’s admission to Ingram was unreliable

as a matter of law because it contradicted statements he made to others

(People’s memo, pp. 74-79).

During Russo’s trial, the People conceded that many of his

statements—including those which incriminated Giuca—were “spin” and

self-serving “half-truths” designed to “shift the blame anywhere he could”

(T62-69). Nicolazzi acknowledged that he lied to Bethune, that he told

inconsistent stories to Ware about the originating source of the murder

weapon (including that it was not Giuca), that his statements to the

police were “concocted” to “avoid detection” and “shift blame away from

himself,” but that he truthfully “bragged” to Valentin that “he was the

one who did this…you know I’m the one who shot the kid” (T977-89).

It would have been unethical for Nicolazzi to argue the exact

opposite about the reliability of Russo’s statements in front of Giuca’s

27
jury. Thus, even if these statements were presented to Giuca’s jury for

the limited purpose of impeaching Russo’s credibility, the jury, with

Nicolazzi’s blessing, assuredly would have disregarded the majority of

them, which would have left Gregory well-positioned to impeach the

witnesses to whom Russo allegedly made statements that incriminated

Giuca.7

The stark difference between Giuca’s and Russo’s behavior after the

murder further demonstrates that Russo’s admission to Ingram might

have been true. Giuca did nothing out of the ordinary in the days after

the murder, whereas Russo’s nervousness, excitability, impulsiveness

and paranoia led him to (1) make a series of inconsistent statements that

oscillated between bragging committing the crime and shifting blame, (2)

radically change his physical appearance almost immediately after the

crime, (3) proudly display a newspaper article about his crime on his

7
Valentin and Ware both admitted that they lied to the police about Russo’s
statements (Valentin: T523-24; Ware: 683-84). Valentin testified that she had an
open case in which she was charged with dealing drugs in the presence of her young
child (T512-15). Ware was imprisoned for a shooting. In 2019, Ware executed a sworn
recantation (making him the fourth witness to do so) in which he alleged that
Nicolazzi offered to help move him to a prison closer to New York City if he cooperated
with her (ex. XX to Bederow aff., ¶ 6).
28
bedroom wall, and (4) flee to California after speaking to the police (T539-

41, 709-11, 726-27, 732, 861).

In contrast to Russo’s intense pre-arrest circumstances, Russo

spoke to Ingram eight months after his arrest, when he was settled into

his living situation and routine at Rikers Island. Gregory could have

borrowed the line of reasoning Nicolazzi used to bolster the reliability of

Giuca’s statements to Avitto and told jurors Russo’s pre-arrest

statements to his friends “danced around the truth” but Russo had no

reason to “hold back” or lie to a “similarly situated” inmate (T1008).

Finally, Russo’s admissions to Ingram were reliable enough for

Nicolazzi to represent that Ingram was a possible prosecution witness.8

It is obvious that if Ingram had testified as a prosecution witness, it

would have been against Russo and the subject matter of his testimony

would have been the same self-incriminating statements Russo made to

8
Nicolazzi’s sworn implications that she placed Ingram on her witness list because
she believed his name might be mentioned at trial (6/2/21, pp. 53, 82; def. ex. A, ¶ 11)
were disingenuous attempts to mislead this Court. As she did with every witness who
had a criminal record, Nicolazzi provided a list of Ingram’s convictions (joint ex. 9).
She referred to Ingram as “our witness” (T746). McNeill acknowledged that Ingram
was on the prosecution witness list because at all times during the trial he was a
potential prosecution witness (5/11/21, pp. 77, 159, 161, 172). Near the end of the
trial, the prosecution team discussed whether Ingram would be called as a witness
(McCafferty: 5/6/21, pp. 41-42, 50-51, 53, 59).
29
Ingram that the People now deem unreliable as a matter of law. It is

doubtful that Nicolazzi would have objected to Giuca calling Ingram by

arguing that her own witness’ testimony was unreliable.

The bottom line is that Giuca should have been provided the

Ingram recording, given meaningful access to Ingram, Rong He, 34

N.Y.3d at 958, and afforded the right to present evidence at an

admissibility hearing, Brensic, 70 N.Y.2d at 16. He should have been

allowed to introduce Russo’s admission to Ingram and do exactly as

Nicolazzi was able to do at Russo’s trial—argue which of Russo’s

statements were reliable and which were not so that the jury in 2005—

rather than the People in 2021—determined the impact of Russo’s

admission to Ingram. See Settles, 46 N.Y.2d at 168-70.

B. There Is No Basis to Conclude That Ingram Would Not

Have Testified As a Defense Witness

The People’s assumption that Ingram would not have testified as a

defense witness if Gregory had been aware of the Ingram recording

disregards that Nicolazzi also violated Brady by depriving the defense of

“meaningful access” to an exculpatory prosecution witness. Rong He, 34

N.Y.3d at 958. It is her fault that Gregory did not have the opportunity

to clarify what Ingram told her, let alone analyze the recording. Gregory’s
30
explanation that he needed to interview Ingram in 2005 before he could

state 16 years later whether he would have called him as a witness was

reasonable (6/14/21, p. 62).

As detailed, supra, pp. 27-30, there is no basis for the conclusion

that Gregory would have been deterred from introducing exculpatory

evidence that Russo admitted Giuca did not take the murder weapon

from him because it might have led Nicolazzi to introduce other

statements made by Russo. The People have mischaracterized the

circumstances surrounding Gregory’s severance motion (People’s memo,

pp. 86-87), which was filed in August 2005 (when Nicolazzi knew about

Russo’s admission to Ingram and Gregory did not) exclusively on the

basis of the defendants’ antagonistic defenses (ex. M to Bederow aff.).

In support of his severance motion, Gregory affirmed that he and

Fink recently had a “lengthy discussion” where it was determined that

the defendants intended to accuse each other of being solely responsible

for the crime (id. at ¶ 7). Gregory did not mention Ingram or either

attorney’s concern about a witness who spoke to both defendants and

incriminated Russo but exculpated Giuca, an obvious fact to address in a

severance motion based upon antagonistic defenses. Gregory’s silence on

31
this point indicates that both defense attorneys were unaware of Russo’s

statement to Ingram.

If Gregory was not aware of Russo’s admission to Ingram when he

moved for a severance, he obviously could not and did not contemplate

whether Ingram’s testimony would have opened the door to Russo’s other

statements. Thus, Gregory’s motion to sever, made while he was unaware

of Russo’s admission to Ingram, does not warrant the conclusion that he

likely would not have called Ingram to avoid the possible introduction of

Russo’s other statements.

Even if Gregory’s initial instinct was to keep out any of Russo’s

statements that were not favorable to Giuca (as any reasonably

competent attorney would try to do), it would have been reasonable for

him to reevaluate or think differently if he had been aware of favorable

evidence that Russo admitted Giuca did not take the gun from him after

the murder.

The People’s assertion that Gregory likely would not have called

Ingram as a witness because Russo’s admission to Ingram had “limited

value” to Giuca’s defense is delusional (People’s memo, pp. 88-89).

Ingram’s testimony would have directly contradicted Nicolazzi’s

32
argument that Giuca’s disposal of the murder weapon was “important

evidence” that proved his guilt (T1006, 1021-22). It would have given the

jury strong reason to doubt that Beharry’s pressured testimony, even if

true, established that the gun he took from Giuca (T649) was the murder

weapon, as opposed to the .380 Cleary claimed Giuca showed him shortly

before the murder (T267). It would have flatly contradicted Cleary’s

testimony that Giuca admitted that he took the murder weapon from

Russo after the crime (T463-64). It would have obliterated Avitto’s claim

that Giuca admitted he was with Russo when Fisher was killed, which

by the end of the trial, Nicolazzi argued was the only accurate description

of Fisher’s murder (T1015-18).

On a macro level, Ingram’s testimony would have given the jury

more reason to doubt the integrity of the entire case against Giuca. See

People v. Ulett, 33 N.Y.3d 512, 521 (2019). With the exception of Avitto,

a dishonest career criminal (T778-98) who delayed approaching the

prosecution until he was in legal peril but who Nicolazzi misleadingly

portrayed as altruistic and honest (T1010-11, 1020-23), every other

witness to whom Giuca purportedly made incriminating statements was

an admitted liar who denied any knowledge about his purported role in

33
the crime until they were pressured into cooperating against him more

than one year later (Cleary: T329-30, 335-39; Calciano: T587-88, 594-603;

Beharry: T651-53).

Ingram’s testimony, if considered alongside Cleary’s and Calciano’s

incompatible descriptions of their joint meeting with Giuca, which

included each accusing the other of lying (see defense opening post-

hearing memo, pp. 9-11) would have enhanced Gregory’s argument that

their pathetic credibility led Nicolazzi to abandon them in favor of Avitto

and an entirely different theory of Giuca’s guilt (T944-47, 961-63, 968,

973-76).

The People oddly suggest that Giuca’s statements to Ingram

demonstrate that Gregory would not have called Ingram as a witness

(People’s memo, pp. 89-90) even though Gregory unequivocally testified

to the exact opposite and explained that Giuca’s statements to Ingram

would have supported his defense (6/14/21, pp. 58-59). If anything, the

People’s cherry-picked summary of Ingram’s arguably ambiguous

description of his conversation with Giuca emphasizes the egregiousness

of Nicolazzi’s failure to provide Gregory with meaningful access to

34
Ingram so he could have clarified any ambiguity in Ingram’s statement.

Rong He, 33 N.Y.3d at 958-59.

Ingram described Giuca’s concern to Nicolazzi as follows:

we had numerous conversations about…what if

the person knew something about a crime or might
have been involved, not involved, knows something
about the crime and doesn’t report it…after he
mentioned that question, what if someone did or
had some—or knew something or had a small
involvement or whatever and didn’t tell…is there
any kind of time for that or is that a charge?

(joint ex. 4, pp. 3, 27) (emphasis added). In response to Ingram’s comment

that he believed Giuca was speaking about himself, Giuca lamented that

he tried to “do the right thing” by “keeping his mouth shut” (id. at 27-28).

Ingram told Giuca it would be “ridiculous” for him to be incarcerated for

“25 years or 20 years,” after which

he said, well do you think I could get a

manslaughter charge or something like that. Or I
said, you’d probably get it down to a manslaughter
charge actually, because I didn’t know9

(id. at 28) (emphasis added).

9
Giuca’s and Ingram’s discussion about the possibility of a “manslaughter charge or
something like that” assuredly would have been excluded due to its probative value
being substantially outweighed by its prejudicial impact, particularly since it is not
even clear who mentioned it.
35
 Ingram’s description of his conversation with Giuca appears to

reveal Giuca’s concern that he knew Russo shot Fisher but did not share

that information with the police. Notably, Giuca told Ingram that (1) he

hosted a party whose guests included Fisher and Russo, and included

underage drinking and drug use, (2) he twice allowed Fisher to leave with

Russo, (3) he knew that Russo frequently carried a gun, (4) he quickly

learned that Russo shot Fisher, and (5) Russo returned to his home

shortly after the murder and tried to hand him the murder weapon while

Denihan was on his couch, where she might have seen or heard Russo

return to his home (id. at 20-22, 26-31). The concerns Giuca expressed to

Ingram were entirely consistent with Giuca’s defense (T46-47, 50, 942-

43, 951, 973).

C. The Cumulative Impact of Ingram’s Testimony and

Evidence of Nicolazzi’s Involvement in Avitto’s Criminal
Case, If Known By the Jury, Would Have Been Material
Under the Reasonable Possibility Standard

Ingram would not have been “substantially impeached” with his

history of alcohol related crimes, his criminal record in general, his

“lying” and because of his demeanor when he spoke to Russo (People’s

memo, p. 91) in light of Nicolazzi’s favorable portrayal of Avitto, a lifelong

drug addict with a lengthy criminal history who waited more than four
36
months to approach the prosecution, which conveniently coincided with

his exposure to a lengthy prison sentence due to a recent relapse. See

Giuca, 33 N.Y.3d at 467-68.

Despite Avitto’s obvious motive to help himself by incriminating

Giuca, Nicolazzi minimized his drug abuse and extensive criminal record

and presented him as

honest about his problems and criminal past. He

freely admitted things he wasn’t proud of and that
goes to his credibility as a witness

(T1011). According to Nicolazzi, Avitto’s only motive to testify was

because “for once, he tried to do something right” (T1020-23).

Ingram, on the other hand, provided Nicolazzi with a sworn

statement within two days of meeting Russo. Nothing in his statement

reveals a motive for him to lie to her. Thus, it would have been impossible

for Nicolazzi to have “substantially impeached” Ingram with evidence of

his criminal history, “lying” and substance abuse without also sabotaging

her vigorous defense of Avitto’s credibility.

The Court of Appeals—ignorant of Russo’s admission to Ingram—

described the “strong evidence” of Giuca’s guilt as his “self-incriminating

statements to his friends” and “his efforts to dispose of the gun shortly

37
after the murder.”10 Giuca, 33 N.Y.3d at 478. Ingram’s testimony would

have substantially undermined this “strong evidence” and more (see

Bederow aff., ¶¶ 12-22; defense memo, August 5, 2019, pp. 27-41; defense

reply memo, January 30, 2020, pp. 18-23; defense post-hearing memo,

July 19, 2021, pp. 8-16, 69-77).

* * *

If the jury had known about Russo’s admission to Ingram and that

Nicolazzi concealed her direct involvement in Avitto’s case, it is

reasonably possible that at least one juror might not have voted to convict

Giuca. See Cone v. Bell, 556 U.S. 449, 452 (2009). The cumulative impact

of the suppressed Ingram and Avitto evidence would have been essential

to the jury’s assessment of the case because Nicolazzi’s late-trial

transition to Avitto and the argument that Giuca and Russo both

attacked Fisher made Avitto’s substantive testimony and his credibility

as important as any other issues before the jury.

If Avitto’s testimony was accurate and credible, Giuca could not

have been home at the time of the murder. Although she did not even

10
The other “strong evidence” described by the Court was a blanket from Giuca’s home
recovered with Fisher’s body. However, the fact that Fisher left Giuca’s home with a
blanket was not in dispute.
38
mention this in her opening, Nicolazzi argued in summation that Giuca

truthfully and accurately told Avitto that he and Russo attacked and

robbed Fisher before she speculated that Giuca might have even shot

Fisher:

I suggest that Mark Fisher didn’t get there alone;

that Giuca may very well have walked him
there…Giuca told Avitto that he had been there,
and he was actually participating in that robbery,
he was mad Mark didn’t give him the money so he
struck Mark’s face with a gun. It’s not a
coincidence…that is corroborated by the evidence
on [Fisher’s] face…[and] the bruises and
contusions he had on his face too, specifically one
to his right cheek…it doesn’t even make sense if
you think about it that Russo could have done all
of this alone…it makes much more sense, common
sense, that he had help. It makes much more sense
just like Giuca admitted to Avitto that there was
more than one person…It is even possible that
Giuca fired some of those shots himself…Giuca
was being truthful when he told Avitto he was
present…It’s proof that Giuca was out of the
house, very well maybe present like he told
Avitto…indisputable evidence by the call being
placed that Giuca wasn’t in the home at the time
like the defense would like you to believe

(T1015-18).

Nicolazzi bolstered Avitto’s testimony by describing him as

someone jurors “could trust” because he was “honest,” “forthright” and

“freely admitted things about his past” (T1010-11). She dismissed the
39
suggestion that Avitto “was making this up and willing to say anything

because he’s trying to help himself and he’s getting some sort of deal” by

unequivocally declaring “there is no evidence…absolutely no evidence at

all of that” (T1020-23).

In fact, jurors were kept ignorant of the truth about Avitto’s strong

motive to lie by Nicolazzi’s “failure to disclose her involvement at his June

13 (2005) appearance in drug court” and her failure to “clarify the record

by disclosing all of the details of what had actually transpired at the June

13th appearance.” Giuca, 33 N.Y.3d at 478. Judge Rivera went farther,

excoriating Nicolazzi for concealing her identity as “the DA” at the June

13 appearance but having Avitto testify that “the judge” at the

appearance was not Justice Marrus, which was a “particularly egregious

violation of the law and [her] ethical obligations.” Id. at 483.

Standing alone, Ingram’s testimony (in addition to undermining

other key witnesses and prosecution arguments) would have demolished

Avitto’s claim that Giuca told him that he attacked Fisher. It also would

have provided a strong reason for the jury to further question Avitto’s

motive for testifying. If the jury had known about Ingram’s testimony

and that Nicolazzi was “the DA” who appeared in drug court with Avitto

40
on June 13, 2005, where he was released without bail after Nicolazzi

informed the court that he was offering information in a murder case, it

is likely that every juror would have dismissed Avitto’s testimony

because of his dreadful credibility.

Ingram’s testimony also would have given the jury a strong basis to

doubt Nicolazzi’s credibility, which she made an important (albeit

improper) issue when she misled the jury about Avitto’s motive to lie

(T1010-11, 1020-23) and gave unsworn testimony that she knew Giuca

gave the murder weapon to Beharry, which she described as “important

evidence” (T1021-22). See People v. Paperno, 54 N.Y.2d 294, 301 (1984) (a

prosecutor’s personal opinion of the evidence is a “subtle form of

testimony” which creates the danger that the jury, impressed by the

prestige of the office of the District Attorney will accord great weight to

the beliefs and opinions of the prosecutor”).

Accordingly, if the jury had known that Russo admitted to Ingram

that Giuca refused to take the murder weapon from him and that

Nicolazzi was “the DA” who appeared in court with Avitto on June 13,

2005, it is reasonably possible that its cumulative impact might have

resulted in a more favorable outcome for Giuca.

41
 CONCLUSION

For the reasons stated herein and as set forth in our prior

submissions, the Court should vacate Giuca’s judgment of conviction.

Respectfully submitted,

/s/ Mark A. Bederow

______________________
MARK A. BEDEROW
DANIEL L. BIBB
Attorneys for John Giuca
Carnegie Hall Tower
152 West 57th Street
8th Floor
New York, New York 10019
212.803.1293
mark@bederowlaw.com

Dated: New York, New York

September 27, 2021

42
 CERTIFICATION OF SERVICE

I HEREBY CERTIFY that on this 27th day of September

2021, a copy of Defendant John Giuca’s Post C.P.L. § 440.10 Hearing
Reply Memorandum of Law was filed and served as follows:

Clerk of the Court (via EDDS)

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

Hon. Danny K. Chun (via email)

Kings County Supreme Court, Part 19
320 Jay Street
Brooklyn, New York 11201

Janet Gleeson (via email)

Leonard Joblove (via email)
Diane Eisner (via email)
Kings County District Attorney’s Office
350 Jay Street
Brooklyn, New York 11201

Dated: September 27, 2021

/s/Mark A. Bederow
______________________
MARK A. BEDEROW