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

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............................................................................................... iii

INTRODUCTION......................................................................................................................1
STATEMENT OF FACTS............................................................................................................8
A. Relevant Trial Proceedings................................................................................8
1. The People’s Theory That Giuca Disposed of the
Murder Weapon............................................................................................8

2. Avitto and the People’s Theory That Giuca Wasn’t

Home and Actively Participated in the Murder.......................14

3. Denihan and Giuca’s Alleged “Cover-up”....................................15

B. The 440.10 Motion and Hearing....................................................................16

1. Documentary Evidence Supports Giuca’s Motion..................17

2. The Evidentiary Hearing......................................................................20

a. James McCafferty........................................................................20
b. Patricia McNeill. ..........................................................................21
c. Jonathan Fink............................................................................... 23
d. Leonard Joblove............................................................................25
e. Melissa Carvajal. .........................................................................27
f. Joseph Vasaturo. .........................................................................28
g. Anna-Sigga Nicolazzi............................................................... 29
h. Diane Eisner...................................................................................38
i. Samuel Gregory. ..........................................................................39

i
ARGUMENT..............................................................................................................................43

THE HEARING EVIDENCE ESTABLISHES THAT THE

PROSECUTION SUPPRESSED RUSSO’S ADMISSION TO INGRAM
THAT SEPARATELY AND CUMULATIVELY WITH SUPPRESSED
EVIDENCE AND UNCORRECTED FALSE TESTIMONY RELATED
TO AVITTO SATISFIES THE “REASONABLE POSSIBILITY”
MATERIALTY STANDARD..............................................................................................43

A. The Brady Rule.......................................................................................................43

B. The Applicable Materiality Standard........................................................44
C. The Instant Brady Violation............................................................................45
1. Russo’s Admission to Ingram Was Favorable to Giuca........45
2. The People Suppressed Russo’s Admission from Giuca.......46
3. The People Deprived Giuca of “Meaningful Access” to
Ingram.............................................................................................................54

D. The Brady Violations Satisfy the Reasonable Possibility

Standard ....................................................................................................................56
1. Russo’s Admission Was Against His Penal
Interest...........................................................................................................57
2. Ingram Would Have Been a Reliable Witness.........................60

3. Ingram’s Testimony Might Have Led to a More

Favorable Outcome for Giuca............................................................69

CONCLUSION...........................................................................................................................77

ii
 TABLE OF AUTHORITIES

Cases

Banks v. Dretke, 540 U.S. 668 (2004) .....................................................................43, 56

Brady v. Maryland, 373 U.S. 83 (1963).......................................................................................1
Cone v. Bell, 556 U.S. 449 (2009) ...............................................................................................45
Kyles v. Whitley, 514 U.S. 419 (1995)...........................................................7, 44, 45, 75
People v. Baxley, 84 N.Y.2d 408 (1994) .................................................................43, 69
People v. Bell, 71 Misc.3d 646 (Queens Cty. Sup. Ct. 2021) ................................................45
People v. Brensic, 70 N.Y.2d 9 (1987) .....................................................................58, 59
People v. Garcia, 46 A.D.3d 461 (1st Dept. 2007) ...................................................55
People v. Giuca, 33 N.Y.3d 462 (2019) .................................................................passim
People v. Giuca, 158 A.D.3d 642 (2nd Dept. 2018) .............................................4, 53
People v. Rong He, 34 N.Y.3d 956 (2019) ......................................................44, 55, 56
People v. Ulett, 33 N.Y.3d 512 (2019) ...............................................................43, 73-75
People v. Vilardi, 76 N.Y.2d 67 (1990) .......................................................................................45
Smith v. Cain, 565 U.S. 73 (2012) ..............................................................................................44
Strickler v. Greene, 527 U.S. 263 (1999) .............................................................................43, 56
United States v. Bagley, 443 U.S. 667 (1985) ...........................................................44

Statutes
C.P.L. § 440.30(6) ...........................................................................................................................46

iii
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

MEMORANDUM OF LAW
________________________________________________________________

INTRODUCTION

This post-hearing memorandum of law is submitted on behalf of

John Giuca in support of his C.P.L. § 440.10 motion, dated August 5,

2019, to vacate his 2005 conviction for the October 12, 2003 murder of

Mark Fisher due to the People’s serious due process violations under

Brady v. Maryland, 373 U.S. 83 (1963).1

1
The defense incorporates all prior submissions, including Giuca’s original motion to
vacate, the exhibits annexed thereto, his memoranda of law in support of the motion,
and arguments made during court proceedings.
1
 On July 19, 2005, less than six weeks before Giuca’s trial started,

Joseph Ingram, an inmate housed in the same cellblock as Giuca,

travelled from Rikers Island to Bellevue and back with Giuca’s co-

defendant, Antonio Russo. Ingram and Russo had appointments at the

Bellevue hematology clinic, and they were in close proximity with each

other for hours. During their time together, Russo told Ingram that he

shot Fisher to death and then returned to Giuca’s home (where Russo,

Giuca, Fisher and others had been earlier that evening) and tried to have

Giuca take the murder weapon from him, but Giuca refused to do so.

The next day, Ingram contacted his attorney and told him that he

wanted to tell prosecutors the information he acquired about the Fisher

case. ADA Anna-Sigga Nicolazzi immediately arranged for Ingram to be

produced to her office the following day for that purpose.

On July 21, 2005, Ingram met with Nicolazzi and Detective James

McCafferty. Nicolazzi placed Ingram under oath and in a sworn, recorded

statement, Ingram told Nicolazzi and McCafferty the substance of his

July 19 conversations with Russo. Nicolazzi specifically asked Ingram

whether Giuca’s attorney was aware of what Russo told him. Ingram told

Nicolazzi that Giuca’s attorney was on vacation, which made it clear to

2
her that Giuca’s attorney, Samuel Gregory, was unaware of Ingram’s

information.

On July 25, 2005, Ingram was transferred out of Rikers Island and

sent to an upstate prison, where he resided during Giuca’s trial. Ingram

died in 2006.

Russo’s admission to Ingram was consistent with Giuca’s defense

that Russo quickly informed Giuca that he (Russo) shot Fisher and

returned to Giuca’s home, but Giuca wasn’t involved in the crime, and he

never possessed the .22 caliber pistol Russo used to murder Fisher.

Russo’s admission to Ingram substantially undermined the

testimony of key prosecution witnesses Albert Cleary, Anthony Beharry

and John Avitto. It flatly contradicted Nicolazzi’s incompatible

arguments that (a) Russo went to Giuca’s home immediately after the

murder, where Giuca took the murder weapon from Russo and later gave

it to Beharry and (b) Giuca wasn’t home when Fisher was murdered

because he and Russo attacked and killed Fisher together several blocks

away from Giuca’s home.

Nicolazzi didn’t disclose the Ingram recording or any evidence of

Russo’s admission to Ingram to Giuca before trial. Instead, she gave the

3
defense the false impression that Ingram possessed evidence harmful to

Giuca by providing the defense with a witness list immediately before

trial that included the name “James Ingram.” As she did for every

prosecution witness with a criminal history, Nicolazzi provided the

defense with a handwritten list of “James Ingram’s” criminal convictions.

She didn’t, however, provide the defense with Ingram’s actual name,

location, NYSID number, date of birth or any contact information that

would have provided the defense with a meaningful opportunity to

contact and interview Ingram before trial.

The Ingram recording wasn’t disclosed to Giuca until June 4, 2018.

That belated disclosure was almost 13 years after his conviction and

while the People were simultaneously preparing for a possible retrial and

seeking leave to appeal in the Court of Appeals after the Appellate

Division ruled in February 2018 that Giuca’s 2015 C.P.L. § 440.10 motion

to vacate should have been granted due to Nicolazzi’s suppression of

Giglio material related to Avitto and her failure to correct Avitto’s false

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

On June 11, 2019, the Court of Appeals—unaware of Russo’s

admission to Ingram—reversed the Appellate Division and reinstated

4
Giuca’s conviction, holding that the suppressed and inaccurate Avitto

evidence was cumulative and therefore not material. In a cruel twist of

irony, the Court emphasized that Giuca’s efforts to dispose of the murder

weapon shortly after the murder and his self-incriminating statements

to his friends—evidence which Russo’s admission to Ingram directly

contradicted—served as “strong proof” of his guilt and rendered the

suppressed Avitto evidence and his false testimony not material to the

outcome of the trial. People v. Giuca, 33 N.Y.3d 462, 478 (2019).

Having been deprived of the opportunity of including the

suppressed Ingram evidence in his 2015 motion alongside the suppressed

Avitto evidence (which prevented Giuca from examining Nicolazzi in

2015 about Ingram before this Court found her credible and from creating

a complete record on appeal before the Court of Appeals), Giuca filed the

instant motion less than two months after his conviction was reinstated.

On August 18, 2020, after reviewing the parties’ submissions, the

Court determined that the resolution of Giuca’s motion required an

evidentiary hearing on the issue of whether the People disclosed the

Ingram recording or any evidence of Russo’s admission to Ingram before

trial. Over the course of eight days in May and June 2021, a hearing was

5
held at which the defense called nine witnesses: retired detective James

McCafferty (5/6/21), ADA Patricia McNeill (5/11/21), Russo’s trial counsel

Jonathan Fink (5/11 and 5/19/21), ADA Leonard Joblove (5/19/21), former

ADA Melissa Carvajal (5/20/21), retired Department of Correction (DOC)

Deputy Warden Joseph Vasaturo (5/20/21), former ADA Anna-Sigga

Nicolazzi (6/2 and 6/3/21), ADA Diane Eisner (6/10/21) and Giuca’s trial

counsel Samuel Gregory (6/14/21). The People didn’t call any witnesses.

More than 50 exhibits were introduced into evidence, including the trial

transcript,2 a copy of the Ingram recording, and a transcript of Ingram’s

statement prepared by the People shortly after Nicolazzi interviewed

him.

The evidence at the 440.10 hearing established by a preponderance

of the evidence that prior to trial the People didn’t disclose to the defense

any evidence of Russo’s admission to Ingram that Giuca refused to take

the murder weapon from him. As detailed herein, the defense proved that

(a) Nicolazzi knew Russo’s admission to Ingram was favorable to Giuca

but she couldn’t state whether she disclosed it, (b) the People had no proof

2
References to the trial transcript are made with a “T” followed by the corresponding
transcript page.
6
that Nicolazzi disclosed the evidence to Giuca, (c) Gregory and Fink both

were confident that they didn’t receive the evidence before trial, (d) in

addition to the Ingram recording, Nicolazzi failed to properly disclose

other sworn recorded statements of prosecution witnesses, including at

least two additional recordings and one grand jury transcript and (e) in

August 2018, Joblove admitted to the Judge of the Court of Appeals

considering the People’s leave application that it appeared Nicolazzi

didn’t disclose the Ingram recording or other evidence of Russo’s

admission to Ingram before trial.

Russo’s admission to Ingram clearly was favorable to Giuca. If the

defense had been afforded a meaningful opportunity to investigate and

interview Ingram, it is reasonably possible that the verdict might have

been more favorable to Giuca. Accordingly, the cumulative impact of the

Ingram and Avitto due process violations, see Kyles v. Whitley, 514 U.S.

419, 436-37 (1995); Giuca, 33 N.Y.3d at 476-78, requires that Giuca’s

conviction be vacated and that he be afforded a new trial.

7
 STATEMENT OF FACTS

A. Relevant Trial Proceedings

1. The People’s Theory That Giuca Disposed of the Murder

Weapon

In her opening statement, Nicolazzi told the jury that Giuca gave

Cleary a “full, detailed account” of Fisher’s murder (T35). Nicolazzi

previewed evidence that Giuca admitted after Russo shot Fisher, he

returned to Giuca’s home, and “handed” Giuca the murder weapon, which

Giuca “got rid of” by having Beharry “take the gun, the murder weapon,

his .22 caliber Luger away from his home so that it couldn’t be recovered

later on” (T36-37).

Nicolazzi didn’t mention Avitto in her opening. She didn’t allege

that Giuca wasn’t home at the time of the murder. She didn’t claim that

Giuca was with Russo when Fisher was killed. She didn’t preview

evidence that Giuca pistol-whipped and possibly shot Fisher. She later

described these facts as part of the only “common sense” explanation of

Fisher’s murder (T1016-18).

In his opening statement, Gregory said that Russo was solely

responsible for Fisher’s murder. He agreed with Nicolazzi that Russo

returned to Giuca’s home immediately after he shot Fisher and that

8
Giuca became aware that Russo harmed Fisher. Gregory, however,

alleged that Giuca “threw Russo out of the house” after a brief

disagreement (T46).

According to Cleary, in the evening the day after the murder,3 he

and Calciano met at Giuca’s home, where Giuca told them that he

“basically” told Russo “to show [Fisher] what was up” and gave Russo a

gun (T318-22). Cleary testified that Giuca described how he sent Fisher

out of his house where Russo, waiting in ambush, beat and shot Fisher

to death before he returned to Giuca’s home, gave Giuca the murder

weapon and told him “it’s done” (T293, 318-24).

Cleary claimed that one week before the murder Giuca showed him

a .22 caliber Ruger. He further claimed that shortly before the murder

Giuca showed him a .380 (T266-67).4 Cleary had to be recalled later in

the trial because Nicolazzi initially “forgot” to ask him what Giuca said

he did with “the gun” (singular). In response to Nicolazzi’s question about

3
Before he met with Giuca and Calciano, Cleary said he spent the day (Sunday) on
Long Island at Angel DiPietro’s house. He watched a football game with her father
and ate dinner with her family. He then went to the Bronx to pick up DiPietro’s
boyfriend and drove back to Brooklyn. They ate again before Cleary “snuck out” and
met Calciano at Giuca’s home (T318-19).
4
Fisher was shot with a .22 (T841, 844, 852).
9
“the gun,” Cleary said he asked Giuca if “they” (plural) were still in the

house and Giuca responded that he gave “them” to Beharry (T463-64).

Cleary testified that he lied to police, prosecutors and even his own

attorney for more than one year until prosecutors “squeezed” him with a

threatened probation violation and perjury charges (T329-30, 338-39,

354-55). In June 2004, he “passed” a polygraph examination, which he

implicitly admitted under oath was falsified evidence because the report

he provided to Nicolazzi concluded his claims that he knew nothing about

Fisher’s murder were “not deceitful” (T329, 338-39; def. ex. H). Cleary

swore that he observed Calciano remove a gun bag from Giuca’s home

(T331).

Although Cleary couldn’t have been any clearer that the mid-

October meeting with Giuca was at night (T318-19), according to

Calciano, she met with Cleary and Calciano during daylight, before she

“went about her plans” that day (T580). Calciano’s description of Giuca’s

purported admission to them was dramatically different than Cleary’s

version. She claimed that Giuca admitted he gave Russo a gun after

Russo said he wanted to rob Fisher and asked Giuca for the gun (T580-

81).

10
 Calciano said that Giuca didn’t provide any further details. She

flatly refuted Cleary’s claims that Giuca told them he instructed Russo

to “show him what’s up” or that he led Fisher out of the house to be

ambushed by Russo (T608-09).

Calciano emphatically denied Cleary’s sworn claim that she

removed evidence from Giuca’s room (T589, 604, 615, 617, 627-28), which

conclusively proved that at least one of these two pressured prosecution

witnesses perjured himself or herself while testifying against Giuca.

The only thing Calciano’s testimony had in common with Cleary’s

was that she repeatedly denied knowing anything about Fisher’s murder

until she finally capitulated to law enforcement’s relentless pressure in

late 20045 (T587-88, 594-603; Beharry: T660-61).

Beharry testified that within a few days of the murder, Giuca gave

him one semi-automatic gun of an unknown caliber, which he left for a

third party to pick up on a street corner (T649). Beharry’s inability to

identify the caliber of the firearm, combined with Cleary’s testimony that

Giuca had a .380 and a .22 (T266-67) and Meredith Denihan’s testimony

5
Calciano described the pressure applied to her by Nicolazzi and other members of
law enforcement in excruciating detail in her 2014 sworn recantation of her testimony
against Giuca (ex. QQ to Bederow aff., August 5, 2019)
11
that Giuca told her there were two guns in his house (T155-57) meant

that Beharry’s testimony failed to establish whether Giuca disposed of a

.22 (the possible murder weapon) or a different firearm.

Beharry too repeatedly denied any knowledge about the crime until

Nicolazzi threatened him with criminal charges if he didn’t cooperate by

testifying “truthfully.” Nicolazzi granting Beharry immunity

immediately before he testified against Giuca (T651-53).

In summation, Gregory highlighted the stark discrepancies

between Giuca’s alleged admission to Cleary and Calciano and regarding

Calciano’s purported tampering with evidence (T964-65). He emphasized

Cleary’s testimony that Giuca had two guns, one of which was a .380 and

couldn’t have been the murder weapon. He argued that Giuca never

possessed the murder weapon and the gun he gave Beharry was the .380

(T966-68).

For her part, Nicolazzi reiterated that Russo returned to Giuca’s

home after the crime and gave Giuca the murder weapon (T990). She

exploited Cleary’s testimony that Giuca admitted he gave Beharry two

guns by saying Giuca gave Beharry “the gun,” which she matter-of-factly

described as the .22 Giuca had previously shown Cleary (T992). She

12
conceded that Cleary claimed Giuca had two guns (T989-90, 1004) and

that “having guns doesn’t in any way implicate him in Fisher’s murder”

(T994), but nevertheless instructed jurors that “you know” the gun Giuca

gave Beharry was the murder weapon (T1004-05).

Nicolazzi cited Beharry’s testimony—which amounted to taking

one gun of an unknown caliber from Giuca a day or two after the

murder—as “enough evidence” to prove Giuca’s guilt in Fisher’s murder

because, according to Nicolazzi, the gun Beharry took from Giuca was

“absolutely the murder weapon” (T1006) and

if he wasn’t in it all the way with Russo, why was

he arranging for the disposal of that gun? Why was
he going to such lengths to make sure it was gotten
rid of in a way it would never be found right from
the go

(T1006). Nicolazzi then mischaracterized Beharry’s testimony,

suggesting that Giuca told Beharry “he gave [him] the gun that Russo

had given to him that was used to kill Mark Fisher” (T1006).

As if Nicolazzi’s mischaracterization of the evidence and comments

that jurors “knew” the gun Beharry took from Giuca “absolutely” was the

murder weapon weren’t bad enough, she buttressed her argument with

her personal and unsworn assertion that she knew Beharry took the

13
murder weapon from Giuca, which she described as “important evidence”

(T1021-22).

2. Avitto and the People’s Theory That Giuca Wasn’t Home

and Actively Participated in the Murder

After the striking inconsistencies between Cleary’s and Calciano’s

versions of their conversation with Giuca and their open accusations

against each other regarding Calciano’s disposal of evidence were

exposed (see Cleary: T331; Calciano: T589, 604, 615-17, 627-28), Nicolazzi

transitioned to Avitto, a mentally ill drug addict, career criminal and

jailhouse informant.

Avitto claimed that Giuca told him that he pistol-whipped Fisher

before “one of his friends” took the gun from him and shot Fisher (T774-

75). Avitto, who took Seroquel (a psychotropic drug for treatment of

schizophrenia and auditory hallucinations) (see T805-08, 813-14), further

claimed that he “overheard” Giuca admit to his father and two female

relatives that he brought a gun to the crime scene (T770-73).

14
 Avitto’s testimony served as the foundation for Nicolazzi’s

alternative theory6 that Giuca was with Russo and helped him kill

Fisher. According to Nicolazzi, Russo was too small to have beaten the 6’-

5” Fisher by himself and it made “much more sense, common sense that

he had help,” “it makes much more sense” that Giuca was with Russo,

“just like Giuca admitted to Avitto” (T1017). Nicolazzi cited Avitto’s

“truthful”7 testimony as part of the “indisputable proof” that Giuca wasn’t

home at the time of the murder. She further exploited Avitto’s testimony

by speculating that Giuca shot Fisher (T1017-18).

3. Denihan and Giuca’s Alleged “Cover-up”

Nicolazzi theorized that Giuca’s concern that Meredith Denihan,

who was asleep on his couch while Russo murdered Fisher, overheard or

saw Giuca take the murder weapon from Russo when he returned to

Giuca’s house demonstrated his guilty conscience and led him to

orchestrate a cover-up of the crime (T33-34). Denihan testified only that

6
A bill of particulars alleged that Giuca “provided” the handgun to Russo (joint ex.
17, ¶ 7) which differed from Avitto’s testimony that Russo “pulled the gun off of” Giuca
and shot Fisher (T775).
7
Nicolazzi argued that Avitto, who waited four months to contact authorities, when
he was facing a lengthy prison sentence, cooperated “for once, to do something right”
(T1022). Among Cleary, Calciano, Beharry, and Avitto, Nicolazzi described only
Avitto as a truly honest witness (T984, 993-94, 997-98, 1000, 1008, 1010-11, 1016-17,
1021-22).
15
she heard a door slam as she slept on Giuca’s couch (T161-63). Cleary

testified that the morning after the murder, Giuca repeatedly asked him

to locate Denihan (T314-18). Nicolazzi argued that Giuca’s “dread,”

“paranoia” and guilty conscience “over what he had done” and being

“found out” because Denihan might have seen or heard him take the

murder weapon from Russo (T985-86) led him to take charge and instruct

Cleary and Calciano to lie to the police and “ask for your lawyer”8 (T987,

993).

B. The 440.10 Motion and Hearing

The defense motion alleged that the People violated Brady by

failing to disclose the Ingram recording (joint ex. 1) or any evidence of

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

weapon from him after the crime. The motion included sworn

affirmations from Gregory and Fink. Both attorneys swore that they were

confident that neither the Ingram recording nor any evidence of Russo’s

8
Within hours of the crime, Cleary went to DiPietro’s home and spent the day with
her father, a criminal defense attorney (T318). Cleary engaged Phil Smallman before
Giuca retained counsel. Cleary suggested that Giuca seek advice from counsel and
brought him to meet Smallman for that purpose (T328-29). Smallman commissioned
Cleary’s polygraph examination (def. ex. H) and appeared on national tv in June 2004,
where he asserted that Cleary “answered every question, no conditions, no holds
barred” and “certainly” told the police everything he knew about the crime (Bederow
aff., August 5, 2019, ¶ 83).
16
admission to Ingram was disclosed before trial (exs. E and F to Bederow

aff., August 5, 2019).

In contrast, the People’s response included Nicolazzi’s sworn

affirmation conceding that she couldn’t state whether she disclosed any

evidence of Russo’s admission to Ingram before trial (def. ex. A, ¶ 7).

Nevertheless, the People argued it was “entirely possible” that Russo’s

admission to Ingram was disclosed to Giuca before trial based upon (a)

Nicolazzi’s August 22, 2005, Rosario disclosure letter (joint ex. 5), (b)

statements made by Gregory in his opening statement and (c) the

substance of a September 21, 2005, late-trial colloquy in which Nicolazzi

referred to “James Ingram” as a non-testifying prosecution witness (see

People’s memo of law in opposition, pp. 25-27).

1. Documentary Evidence Supports Giuca’s Motion

Documents introduced at the hearing conclusively proved that (a)

on July 19, 2005, Ingram and Russo were transported together to and

from Bellevue in order to go to the hematology clinic (joint exs. 11-12, 24-

26), (b) Ingram and Russo had the opportunity to speak to each other on

July 19, 2005 (joint ex. 26, ¶ 1), (c) on July 20, 2005, Ingram contacted

his attorney to arrange for him to provide information to the People (id.

17
at ¶ 3), (d) on July 20, 2005, Nicolazzi arranged for Joseph Ingram to be

produced at her office (joint ex. 7), (e) on July 21, 2005, after being placed

under oath, Ingram told Nicolazzi his name was Joseph Ingram and told

her that Russo admitted telling him that Giuca refused to take the

murder weapon from Russo after he killed Fisher (joint ex. 1), (f) on July

25, 2005, Ingram was moved from Rikers to Downstate Correctional

Facility (joint ex. 11), (g) Nicolazzi placed Ingram on the People’s witness

list as “James” Ingram (joint ex. 8), (h) Nicolazzi identified Ingram in

open court as “our witness” (T746), (i) Nicolazzi provided an inaccurate

handwritten list of “James” Ingram’s convictions that didn’t include any

basis for Gregory to locate Ingram (joint ex. 9) and (j) Ingram died on

August 12, 2006 (joint ex. 26, ¶ 2).

Exhibits introduced into evidence at the hearing substantially

supported Giuca’s allegation that the Ingram recording was suppressed.

The People reconstructed the Bates-stamped production of material

provided to Gregory and Fink before trial. The reproduction didn’t

include any document, file or information that referred to Ingram, the

Ingram recording, or the transcript of the Ingram recording prepared

18
shortly after Nicolazzi interviewed Ingram (joint ex. 26, ¶ 4; def. ex. A, ¶

6).

The trial court directed Nicolazzi to disclose the Rosario material

by August 22, 2005 (joint ex. 33, p. 5). The trial transcript (joint ex. 13)

established that Nicolazzi failed to make timely disclosures of (a) a sworn

recorded statement of Denihan (T114-15, 119-22) (disclosed immediately

before she testified on September 14, 2005), (b) a sworn recorded

statement of trial witness Alejandro Romero (T174) (disclosed on

September 15, 2005), (c) a Homicide Investigative Report (“HIR” or

“scratch”) which memorialized Denihan’s and Romero’s sworn recorded

statements (T174) (joint ex. 21, disclosed on September 15, 2005), and (d)

the grand jury minutes of Calciano (T631-32, 744) (def. ex. J, disclosed on

September 20, 2005, after she completed her testimony).

The hearing evidence further established that on August 2, 2018—

almost two months after Carvajal notified Joblove and Eisner about the

defense claim that Nicolazzi suppressed the Ingram recording and

provided them with a copy of Nicolazzi’s August 22, 2005, Rosario letter

(joint exs. 5, 29)—Joblove represented to Judge Rowan Wilson of the

Court of Appeals

19
 as best we can ascertain now, the People did not
disclose the Ingram recording prior to trial.
Certainly the better practice would have been to
disclose it, out of an abundance of caution

(joint ex. 28, p. 9).

2. The Evidentiary Hearing

a. Retired Detective James McCafferty

McCafferty joined the case in May 2004 with ADAs Nicolazzi,

McNeill, Joshua Hanshaft and other detectives after it was decided the

case needed a “change in personnel” (5/6/21, pp. 6-7). McNeill was as

involved as Nicolazzi in the investigation (id. at 46).

On or about July 20, 2005, Nicolazzi asked McCafferty to meet with

her and Ingram after Ingram contacted the DA’s Office to provide

information (id. at 22-23). McCafferty believed Nicolazzi identified him

as “Joseph Ingram” and didn’t recall ever hearing her refer to him as

“James Ingram” (id. at 24-25).

Ingram told Nicolazzi and McCafferty what he was going to say to

them before he was recorded (id.at 26-27). After the interview,

McCafferty didn’t take any steps to vet Ingram; he thought someone in

the DA’s Office did that (id. at 32-33).

20
 Near the “very end” of the trial, McCafferty, Nicolazzi, McNeill,

Hanshaft, other detectives (and possibly Kenneth Taub) discussed

whether Ingram would be called as a prosecution witness (id. at 41-42,

50-51, 53, 59).

b. ADA Patricia McNeill

After McNeill joined the case with Nicolazzi in May 2004, she

reviewed the file and became aware that Denihan was interviewed by

detectives very early in the investigation (5/11/21, p. 75, 81-82). She

described a Homicide Investigation Report (which she called “a scratch”)

as a document prepared by a riding ADA9 to “write down what occurred”

so the next prosecutor handling the matter “can review what was done”

(id. at 107-08).

Ingram was on the People’s witness list “because he was a potential

witness” against Giuca and/or Russo at all times after he met Nicolazzi

on July 21, 2005 (id. at 77, 159, 161, 172). A list of Ingram’s convictions

was provided to the defense because he was a potential witness (id. at

9
A riding ADA is an “on call” prosecutor who responds to serious felony cases and
handles preliminary tasks, including taking recorded statements from witnesses
(Nicolazzi: 6/2/21, p. 16).
21
167). Nicolazzi made the decision not to call Ingram as a witness (id. at

98, 172-73).

McNeill knew before trial that Matthew Giuliano (who was not on

the People’s witness list, see joint ex. 8) would be mentioned at trial

(5/11/21, pp. 162-63). Giuliano’s name was mentioned frequently by

prosecutors at trial, including numerous times by McNeill in her opening

statement against Russo (id.; T58-59, 72). McNeill acknowledged that a

person may be included on a witness list even if that person wasn’t going

to be a witness if that person’s name likely would be mentioned at trial.

Rather than attempt to explain why Giuliano’s name wasn’t on the

witness list for that purpose, she demurred to Nicolazzi (5/11/21, pp. 161-

64).

Nicolazzi maintained the file, exclusively handled the disclosure of

evidence to Giuca and Russo, and duplicated the sworn, recorded

statements of witnesses (id. at 87-90, 125). McNeill helped Nicolazzi

Bates-stamp the Rosario material, but the evidence stayed with Nicolazzi

before it was disclosed to the defense (id. at 131-32). Nicolazzi was going

to vet Ingram and McNeill (incorrectly) assumed she did (id. at 102; see

Nicolazzi: 6/2/21, p. 136).

22
 McNeill stated that Russo’s admission to Ingram that Giuca

refused to take the murder weapon from him should have been disclosed

to Giuca and that she would have done so (5/11/21, p. 120). She believed

that Nicolazzi disclosed it to Giuca based upon her recent review of

Nicolazzi’s August 22, 2005, letter and because of statements made by

Gregory at trial (id. at 120, 134-35). However, because she didn’t

personally disclose any evidence, she couldn’t state with certainty

whether any specific evidence was disclosed to the defense (id. at 144).

McNeill recalled two prior circumstances when she disclosed Brady

material to the defense, including one where she memorialized her

disclosure in writing “to show the defense attorney the material” (id. at

90-91).

c. Jonathan Fink

Fink represented Russo from 2004 through sentencing (5/11/21, p.

180). At the time of the trial, Fink had been an attorney for 13 years (id.

at 178-79). He worked as a Brooklyn prosecutor for five years and since

1997 has been engaged mostly in criminal defense work (id. at 179).

While at the Brooklyn DA’s Office, he prosecuted and “rode” homicide

cases (id.; 5/19/21, pp. 4-5).

23
 Fink was diligent in his representation of Russo (5/11/21, p. 180).

He made pretrial demands for all statements made by Giuca and Russo

and he reviewed all the materials provided to him by the People (id. at

181-82). Statements made by Giuca and Russo were important to him

because his defense was that Giuca alone was responsible for Fisher’s

murder and Giuca’s defense was that Russo alone killed Fisher (id. at

185-86).

If Fink had been aware of incriminating statements made by Russo,

including those which exculpated Giuca, he would have investigated

them (id. at 187). After he received the Rosario material he had his

investigator attempt to interview Crystal Valentin and Gregory Ware,

two witnesses who alleged that Russo made incriminating statements to

them (id. at 183-85). Conversely, because he was unaware of Russo’s

admission to Ingram, Fink didn’t attempt to locate or interview Ingram

or order any of his closed cases, as he did with other witnesses (id. at 189-

90).

Fink described Russo’s admission to Ingram that Giuca refused to

take the murder weapon from him as “important” evidence that he

believed he wasn’t told about before trial (id. at 188). He wasn’t familiar

24
with Ingram recording before trial and believed Nicolazzi didn’t provide

him with the Ingram recording or any evidence of Russo’s admission to

Ingram. He believed he would have remembered evidence that Russo

made a statement to another inmate incriminating himself while they

were at Bellevue together and he would have pursued Ingram if he had

received such evidence (id. at 187-89). In 2019, Fink executed a sworn

affirmation expressing his confidence that Russo’s admission to Ingram

wasn’t disclosed to him before trial (id. at 194).

In sum, Fink was confident that he didn’t receive the Ingram

recording or the substance of Russo’s admission before trial (id. at 193;

5/19/21, p. 41) and that the first time he heard the Ingram recording and

became familiar with its contents was when it was provided to him in

June 2018 (5/11/21, pp. 191-94).

d. ADA Leonard Joblove

Joblove has worked in the Brooklyn DA’s Office since 1982 and has

been Chief of Appeals since 2000 (5/19/21, p. 48). After Giuca’s conviction

was reversed by the Appellate Division in February 2018, he worked on

the People’s leave application in the Court of Appeals (id. at 51-52), which

was assigned to Judge Rowan Wilson.

25
 In June 2018, Joblove became aware of the allegation that the

Ingram recording wasn’t disclosed to Giuca before trial (id. at 54). Prior

to August 2, 2018, he knew that Carvajal had spent “weeks” reviewing

the file and that she hadn’t found any “clear record or documentary proof”

that the Ingram recording had been disclosed before trial (id. at 53-54,

71-72, 77).

Carvajal was the source of the information that led Joblove to

represent to Judge Wilson on August 2, 2018, that it appeared Russo’s

admission to Ingram wasn’t disclosed to Giuca before trial (id. at 74).

Joblove testified that based on what he now knew, including his 2019

review of Nicolazzi’s August 22, 2005 Rosario letter, he wouldn’t make

that same concession today (id. at 77). Three times Joblove (inaccurately)

testified10 that he was unaware of Nicolazzi’s Rosario cover letter before

he submitted his August 2, 2018 letter to Judge Wilson (id. at 79-80).

10
On June 13, 2018, Carvajal emailed Joblove, Eisner and four executive ADAs a copy
of Nicolazzi’s August 22, 2005 letter. She also explained in the text of her email “at
this point, I cannot speak to whether any particular audio cassette was handed over
but I thought you should be aware of this document” (joint ex. 29). Notwithstanding
numerous pre-hearing demands which encompassed the Carvajal email, it wasn’t
disclosed to the defense until the defense made another demand for it on May 26,
2021, after Carvajal’s testimony contradicted Joblove. The People opposed a defense
request to recall Joblove (6/10/21, pp. 13-17) and didn’t call him as a witness, which
has left his inaccurate testimony unchallenged and unexplained.

26
 Nicolazzi told Joblove in 2019 that “she didn’t recall one way or the

other” whether she disclosed the Ingram recording to Giuca before trial

(5/19/21, p. 59).

e. Former ADA Melissa Carvajal

After Giuca’s conviction was reversed in February 2018, Carvajal

was responsible for reviewing the file and disclosing evidence in advance

of a possible retrial (5/20/21, p. 91). She conducted a “box by box” review

of the entire file and disclosed the Ingram recording on June 4, 2018 (id.

at 98, 102, def. exs. B and C). After the defense alleged on June 6, 2018,

that the Ingram recording hadn’t been disclosed before trial (def. ex. C),

Carvajal pledged to disclose all the contents in the file to the defense

(5/20/21, pp. 10-11; def. exs. B and C).

Carvajal and Nicolazzi are close friends who worked together for

nine years in the homicide bureau (5/20/21, p. 88). For six of those years,

Nicolazzi was Carvajal’s direct supervisor (id. at 89). She described

Nicolazzi as organized, meticulous and careful (id. at 90).

Carvajal received training on Brady disclosures while she was in

the homicide bureau and made many such disclosures in her career (id.

at 99). Her practice was to disclose Brady material under a cover letter

27
with the evidence attached and then place her disclosure on the record

by making a statement in court or emailing defense counsel to maintain

an accurate record of what she disclosed (id. at 99-100). She disclosed a

2018 statement Russo made to McCafferty which favored Giuca in this

manner (id. at 100-01).

During her extensive review of the file, Carvajal didn’t locate any

proof that prior to trial Nicolazzi disclosed the Ingram recording or the

substance of Russo’s admission to Ingram to the defense prior to trial (id.

at 118, 143; see joint ex. 29).

Carvajal didn’t find any evidence in the file that Nicolazzi vetted

Ingram’s credibility, such as Russo’s and Ingram’s July 2005 medical

records and DOC records (5/20/21, p. 135). In 2018, Carvajal ordered

Ingram’s and Russo’s medical records (joint exs. 24 and 25), which

established that on July 19, 2005, they both went to the hematology clinic

at Bellevue (5/20/21, pp. 135-36).

f. Joseph Vasaturo

Vasaturo worked for the Department of Correction for 31 years and

retired as a Deputy Warden in 2020 (5/20/21, p. 154). He was experienced

in inmate custody management and inmate movement and

28
transportation (5/20/21, pp. 154-58). Based upon his review of the

stipulation (joint ex. 26), Ingram’s and Russo’s July 19, 2005, medical

records (joint exs. 24 and 25) and their Rikers inmate movement records

(joint exs. 11 and 12), Vasaturo explained that Russo and Ingram were

on the same bus to and from Bellevue on July 19, 2005 (5/20/21, pp. 166-

69, 174). He further explained that notwithstanding their differences in

age and custody status, Ingram and Russo would have been transported

in separate compartments but still would have been able to communicate

with each other (id. at 158, 197; see joint ex. 26, ¶ 1). Similarly, while

being held at Bellevue, nothing would have precluded Ingram and Russo

from being placed in adjacent holding cells, where inmates were able to

communicate with each other (5/20/21, pp. 161, 199; see joint exhibit 26,

¶ 1).

g. Former ADA Anna-Sigga Nicolazzi

Nicolazzi, a self-described thorough and meticulous “list-maker”

who paid attention to detail (6/2/21, p. 45; 6/3/21, p. 59) acknowledged

that Brady obligated her to disclose favorable information without regard

to its admissibility and in a manner which afforded the defense a

meaningful opportunity to investigate the evidence (6/2/21, pp. 106-07).

29
She was trained to “err on the side of caution” when disclosing evidence

but she didn’t memorialize Brady disclosures under a cover letter (id. at

106, 110-11).

Nicolazzi provided Giuca and Russo with the same discovery

materials (id. at 95; see joint ex. 5). She recognized that Ingram’s sworn

statement to her was favorable to Giuca (6/2/21, p.131) but conceded

there was no “proof positive” that she disclosed Russo’s admission to

Ingram to Giuca (id. at 60-61, 71; see also, def. ex. A, ¶ 7) (“I cannot say

with any certainty whether or not, either prior to or during the

defendant’s trial, I provided to the defendant’s attorney, Samuel Gregory,

an audiotape or transcript of Ingram’s statement to me or otherwise

informed Mr. Gregory of the existence or content of that statement”).

Nicolazzi didn’t provide Gregory or Fink with a disclosure letter

describing Russo’s admission to Ingram (6/2/21, p. 115). “For various

reasons” she declined to share, she didn’t recall informing Gregory of the

favorable Ingram evidence prior to August 22, 2005 (id. at 146).

Nicolazzi disclosed an exculpatory anonymous letter, dated August

18, 2004, espousing Giuca’s innocence (def. ex. E) as Brady material

(6/2/21, pp. 112-14). However, she didn’t identify the letter as Brady

30
material or otherwise isolate it for the defense. She disclosed it as Bates

stamped page 430 out of the approximately 2,028 pages of Rosario

material she disclosed on August 22, 2005—almost one year after

Nicolazzi and McCafferty became aware of the exculpatory evidence

(6/3/21, pp. 5-11). The DD5 accompanying the anonymous letter (def. ex.

F) memorialized McCafferty’s attempt to lift fingerprints from the letter.

The DD5 wasn’t disclosed chronologically with the letter (it was disclosed

as Bates no. 227) and Nicolazzi didn’t know what the results of the

fingerprint analysis were or whether the results were provided to the

defense before trial (6/3/21, p. 13).

Nicolazzi also disclosed Cleary’s favorable June 2004 polygraph

report11 (def. ex. H) and possibly disclosed a favorable January 3, 2005,

letter sent to an executive ADA alleging that prosecution witnesses

Cleary and Angel DiPietro12 were involved in the crime (def. ex. G) as

11
The polygraph report indicated that Cleary’s claims that (a) he would tell the truth,
(b) he didn’t know who murdered Mark Fisher and (c) he wasn’t holding back
information about Fisher’s murder from the police were made “without deception”
(6/3/21, pp. 25-26; def. ex. H).
12
Nicolazzi knew before trial that DiPietro was dishonest with the police and Fisher’s
friends. She knew or should have known that DiPietro testified falsely at trial. A few
years after the trial, then Brooklyn District Attorney Charles Hynes hired DiPietro
as an assistant district attorney even though Fisher’s family has always suspected
she was complicit in the crime and even sued her (see Bederow aff., August 5, 2019,
¶¶ 120-49).
31
part of her general Rosario disclosure (6/3/21, pp. 15-27). Thus, she didn’t

disclose favorable evidence in her possession since mid-2004 and early

2005, respectively, until August 22, 2005, even though she “accurately”

swore on February 17, 2005, in response to Giuca’s demand for Brady

material that “no such evidence is known to the People to exist” and that

she was aware of her continuing obligation to disclose Brady material

(joint ex. 17, ¶ 34; 6/3/21, pp. 3-4, 13).

Nicolazzi repeatedly claimed that Ingram’s sworn statement to her

wasn’t credible (see 6/2/21, pp. 128, 131, 133-36, 138-42, 159-60). When

asked why she then placed Ingram on her witness list (joint ex. 8), she

self-servingly replied that her witness list included names she thought

could be mentioned at trial (6/2/21, pp. 53, 82), just as she implied in her

2019 affirmation (see def. ex. A, ¶ 11). She stated it was her practice to

include names that might be mentioned at trial to minimize the risk that

a juror might recognize the name and to avoid the risk of a mistrial

(6/2/21, pp. 81-82).

Nicolazzi said that she didn’t include Matthew or Frank Giuliano

(both of whom prosecutors mentioned at trial) on her witness list as

“names that could be mentioned” because they were related to Giuca,

32
notwithstanding the fact that Justice Marrus simply told prospective

jurors names that might be mentioned at trial without referring to the

People’s witness list (6/2/21, pp. 83-84; 6/3/21, pp. 32-33; 9/13/05 voir dire

transcript, pp. 5-6 cf. McNeill: 5/11/21, pp. 77, 98, 159, 161, 167;

McCafferty: 5/6/21, pp. 41-42, 50-51, 53, 59; T746) (shortly before resting

her case, Nicolazzi referred to Ingram as “our witness James Ingram”).

Nicolazzi provided handwritten copies of the criminal histories of

possible prosecution witnesses—including “James” Ingram (joint exs. 9.

17, ¶ 25, 32; see Gregory: 6/14/21, pp. 45-48; McNeill: 5/11/21, p. 167). She

copied 19 convictions from Ingram’s 31-page rap sheet (joint ex. 27) by

hand rather than simply provide the defense with a copy of Ingram’s rap

sheet before trial (6/3/21, p. 117). The handwritten list of convictions and

pending cases she gave Gregory failed to include a Manhattan felony

conviction and his open Essex County case (id. at 119-21). Unlike

Ingram’s rap sheet, Nicolazzi’s handwritten copy of Ingram’s convictions

didn’t contain Ingram’s proper first name (Joseph), his date of birth, his

NYSID number, information on where he was incarcerated or any other

information that would have enabled Gregory to locate Ingram (cf. joint

exs. 9 and 27).

33
 Nicolazzi knew that an HIR was prepared in every homicide. Prior

to September 2005 she had made entries in more than 20 HIR’s (6/2/21,

pp. 19-20). In 2003-05, Nicolazzi knew ADA Steven Murphy from the

homicide bureau and she knew that John Giannotti was a riding ADA

(id. at 15, 17).

In May 2004, when she familiarized herself with the case, Nicolazzi

likely reviewed the HIR prepared in connection with the Fisher

investigation (id. at 22). The HIR contained a unique full-page entry

made by Murphy on October 15, 2003, summarizing Denihan’s sworn

recorded interview with him and Detective Garbarino (joint ex. 21, p. 5).

It also contained a unique entry made by Giannotti on March 27, 2004,

summarizing Romero’s sworn recorded interview with him and Detective

Gaynor (id at 7).

Nicolazzi described Denihan as a “crucial” witness and

acknowledged that Denihan was “one of the most important witnesses”

in the case (6/3/21, pp. 89, 122). Nicolazzi was present when Denihan

testified in the grand jury, prepped her for her trial testimony and

examined her at trial (6/2/21, pp. 25-26; T138).

34
 In addition to the HIR, Nicolazzi reviewed “more than once” before

trial numerous materials that clearly referenced Denihan’s sworn

recorded statement (6/2/21, pp. 24, 28; 6/3/21, pp. 85-104). She reviewed

a Bates-stamped DD5 prepared by Garbarino titled “Audio Interview of

Meredith Denihan” which identified Murphy’s recorded statement of

Denihan as audio “A03-0645” (def. ex. N). She reviewed Garbarino’s

Bates-stamped spiral notes which documented his interview of Denihan

and referenced recording “A03-0645 w/ ADA Murphy” (def. ex. O). She

reviewed Detective Maureen Dunne’s notes which detailed Denihan’s

interview and contained the entry “audio w/ADA Murphy, DA off. 1540,

A03-0645”13 (def. ex. P).

Nicolazzi examined Romero and Gaynor before the grand jury. She

questioned both witnesses about Romero’s March 27, 2004, identification

of Russo (6/2/21, pp. 41-43), which occurred in Gaynor’s presence a few

hours before Gaynor participated in Romero’s sworn recorded statement

(joint ex. 21, p. 7).

13
The copy of Dunne’s notes which were moved into evidence were not Bates-stamped
(see 5/20/21, p. 203). During the hearing, ADA Janet Gleeson represented to the
defense that the People didn’t have a Bates-stamped copy of Dunne’s notes. However,
when Nicolazzi opposed a short adjournment for the defense to carefully review the
Denihan recording because of her belated disclosure of it, Nicolazzi told the trial court
that “the defense has handwritten notes of Detective Dunne” (T121).
35
 Nicolazzi referenced a total of 15 recorded statements of

prosecution witnesses in her August 22, 2005 Rosario letter (joint ex. 5).

She claimed that she didn’t know who determined that there was a total

of 15 recorded statements of witnesses (6/3/21, p. 71). She acknowledged

that Denihan’s and Romero’s recordings were among the 15 recorded

statements referenced in her disclosure letter (6/2/21, p. 78).

Nicolazzi “screwed up” by failing to disclose the Denihan recording

until Fink made a specific mid-trial demand for it (6/2/21, p. 37; 6/3/21,

p. 122). Notwithstanding her thorough review of important Denihan-

related evidence which referenced her recorded statement (6/2/21, p. 22;

6/3/21, pp. 85-104; joint ex. 21; def. exs. N, O, P) Nicolazzi represented to

the trial court in 2005 that she “didn’t know it existed” (T114-15, 120).

However, Nicolazzi testified that she simply “overlooked” and “didn’t

remember” the Denihan recording. She claimed that Fink’s demand for

the recording did not refresh her recollection about it (6/2/21, pp. 37-38;

6/3/21, pp. 95,105-06).

Nicolazzi claimed that she didn’t know whether she disclosed the

Romero recording before trial (6/2/21, p. 80). The trial record, however,

clearly establishes that she disclosed it one day after she disclosed the

36
Denihan recording—after she located and disclosed the “scratch (sic) we

never had [which referenced Romero’s recording]..and there was one

other tape of Mr. Romero…that I gave both defense copies this morning”

(T174).

Nicolazzi didn’t have copies of the Ingram recording or the

recordings of Steven Myala or David In shortly before trial (def. ex. 10).

The Myala and In recordings were among the 15 recordings she

referenced in her August 22, 2005, disclosure letter, but Nicolazzi

couldn’t state whether she disclosed them to Giuca before trial (6/3/21, p.

110).

Nicolazzi testified that she disclosed Calciano’s grand jury minutes

before trial. She reached this conclusion because during hearing prep

prosecutors showed her a Bates-stamped copy of the transcript (6/2/21,

pp. 87-88; def. ex. J). However, the trial transcript clearly demonstrates

that Nicolazzi didn’t disclose Calciano’s grand jury testimony until she

completed her testimony and after Gregory specifically demanded them

(which led to a motion for a mistrial) (T622, 631-32, 744).

During the three days the trial court addressed this issue

(September 19-21, 2005) Nicolazzi didn’t challenge Gregory’s assertion

37
that he didn’t receive Calciano’s grand jury minutes. She didn’t review

her exact reproduction of the Bates-stamped materials she disclosed (see

6/2/21, p. 49) to demonstrate her prior disclosure of the transcript. Nor

did she respond to Gregory’s motion for a mistrial (T744). Nicolazzi did,

however, admit that at the 2015 C.P.L. § 440.10 hearing she testified that

Calciano’s grand jury minutes weren’t disclosed before trial (6/3/21, pp.

80-85; see 11/23/15, pp. 453-54).

h. ADA Diane Eisner

Eisner received Carvajal’s June 13, 2018, email and its attachment

of Nicolazzi’s August 22, 2005, letter (joint ex. 29). She believed that she

remained unaware of the attachment or failed to “process it” before

August 2, 2018, even though she submitted a copy of Nicolazzi’s letter as

an exhibit in her response to Russo’s 2012 § 440.10 motion (6/10/21, pp.

9, 11-12, 21); joint. ex. 19).

Eisner reviewed Joblove’s August 2, 2018 letter to Judge Wilson

before Joblove submitted it. She recalled adding at least one suggestion

to it before it was sent but didn’t contemplate Nicolazzi’s August 22, 2005,

letter before Joblove represented to Judge Wilson that it appeared

38
Nicolazzi didn’t disclose the Ingram recording to Giuca before trial

(6/10/21, p. 15).

i. Samuel Gregory

In 2005, Gregory had been practicing criminal defense for more

than 20 years (6/14/21, p. 31). He has tried between 12-15 murder cases

and was death penalty certified when New York had capital punishment

(id. at 32). In July 2005, Gregory was in Alaska (id. at 33, 80-82).

Gregory’s defense was that Russo alone shot and killed Fisher and

that Giuca never possessed the murder weapon (id. at 34-35). In his

opening he said that Russo returned to Giuca’s home after the murder,

but that Giuca threw him out after a brief argument (id. at 35, 66).

Ingram wasn’t the source of any information alleged in Gregory’s opening

statement (id. at 36-37, 134, 140-41).

Gregory stated evidence that Russo admitted Giuca refused to take

the murder weapon from him was “important” and would have helped

Giuca’s defense. He didn’t introduce such evidence because he didn’t

possess it (id. at 40).

Gregory didn’t think Nicolazzi made any specific Brady disclosures

before or during trial (id. at 37-38). He was confident that Nicolazzi didn’t

39
disclose the Ingram recording or the substance of Russo’s admission to

Ingram before trial (id. at 38-39, 43). He had a “perfect recollection” that

he wasn’t provided the Ingram recording before trial because

had I gotten this tape and not interviewed Ingram,

it would have been on my conscience and on my
mind after the trial and it was not in my mind at
all. So that’s how I really am convinced that I
never got this tape

(id. at 68). Gregory was “almost 100% certain” that the first time he heard

the Ingram recording was in June 2018 (id. at 121). He likely would have

remembered if he had heard it before then (id. at 44-45).

If Gregory had received the Ingram recording before trial, he

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

Ingram that he tried and failed to get Giuca to take the murder weapon

from him after the murder, he would have tried to locate Ingram and

“certainly” would have asked him specifics with the intent of calling

Ingram as a witness because it would have helped Giuca’s defense (id. at

40, 58, 65, 74, 121). He wouldn’t have simply relied on Ingram’s

statement to Nicolazzi (id. at 58).

Giuca didn’t tell Gregory that Russo admitted to Ingram that he

(Giuca) refused to take the murder weapon. If he had done so, Gregory

40
believed he would have remembered it (id. at 42-43). If he had learned

about Russo’s admission to Ingram after he reviewed the names on the

People’s witness list, he would have sought an adjournment for the

purpose of trying to locate and interview Ingram. He didn’t seek any such

adjournment (id. at 43). Gregory never sought to locate or interview

Ingram, and he didn’t place him on the defense witness list because he

wasn’t aware of Ingram’s favorable evidence (id. at 36, 50, 58).

Ingram’s inclusion on the People’s witness list led Gregory to

believe that Ingram would have inculpated rather than exculpated Giuca

(id. at 42). Once Nicolazzi stated that “our witness James Ingram” (T746)

wasn’t going to testify, Gregory “wiped his forehead and focused on

Avitto” rather than whether Nicolazzi disclosed materials related to a

non-testifying jailhouse informant and prosecution witness (6/14/21, pp.

42, 84, 123-24). In any event, “knowing” Nicolazzi’s reputation for holding

information close, if Gregory had asked her for an offer of proof regarding

Ingram, he believed Nicolazzi would have said “they were just together”

and refused to elaborate (id. at 130).

The purported statements Giuca made to Ingram which he

described to Nicolazzi wouldn’t have deterred Gregory from calling

41
Ingram as a witness. To the contrary, Gregory believed they were

consistent with his defense (id. at 59). Nor would the fact that Ingram

accused Russo of being a “snitch” have deterred him from interviewing

Ingram or calling him as a witness. Gregory would have questioned

Ingram about Russo’s demeanor when they spoke and attempted to get

as much information as he could from him (id. at 59-60). He also would

have attempted to corroborate Ingram by gathering Ingram’s and Russo’s

corrections and medical records (id. at 60-61).

Gregory testified that it would have been important for him to

interview Ingram before trial and that the possibility of Russo’s prior

statements being admitted against Giuca wouldn’t have deterred him

from pursuing Ingram (id. at 63).

Gregory wasn’t aware of any efforts by Ingram to contact him after

July 21, 2005 (id. at 63).

42
 ARGUMENT

THE HEARING EVIDENCE ESTABLISHES THAT THE

PROSECUTION SUPPRESSED RUSSO’S ADMISSION TO
INGRAM THAT SEPARATELY AND CUMULATIVELY WITH
SUPPRESSED EVIDENCE AND UNCORRECTED FALSE
TESTIMONY RELATED TO AVITTO SATISFIES THE
“REASONABLE POSSIBILITY” MATERIALITY STANDARD

A. The Brady Rule

To establish a Brady violation, the defense must show that the

People failed to disclose to the defense before trial favorable and material

evidence that was within their custody, possession or control. People v.

Ulett, 33 N.Y.3d 512, 514 (2019); Giuca, 33 N.Y.3d at 473.

Whether the People acted in good faith or deliberately suppressed

evidence is irrelevant to establishing a Brady violation (id.). Defense

counsel is entitled to rely upon “the presumption that the prosecutor

would fully perform his duty to disclose all exculpatory materials.”

Strickler v. Greene, 527 U.S. 263, 284, 287 (1999); see also, Banks v.

Dretke, 540 U.S. 668, 693-96 (2004). The prosecutor’s subjective belief

that an exculpatory witness wasn’t truthful or was otherwise unreliable

isn’t a valid excuse for nondisclosure of evidence that, if truthful, is

favorable to the defense. Giuca, 33 N.Y.3d at 475; People v. Baxley, 84

N.Y.2d 208, 213-14 (1994).

43
 The People’s “broad obligation” to disclose favorable evidence

includes providing the defense with “meaningful access” to favorable

witnesses and information. People v. Rong He, 34 N.Y.3d 956, 958 (2019).

This includes providing contact information for a favorable witness

where the defense lacks adequate means to locate and interview the

possible witness (id.). The People’s failure to provide any reasonable

opportunity for the defense to contact or locate a favorable witness is

“tantamount to suppression” of favorable evidence (id. at 959).

B. The Applicable Materiality Standard

Under federal law, undisclosed favorable evidence is material if

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, 443 U.S. 667, 680 (1985). A “reasonable probability”

means “the likelihood of a different result is great enough to undermine

confidence in the outcome of the trial.” Smith v. Cain, 565 U.S. 73 (2012).

The federal standard requires that a reviewing court be confident that

that the verdict would have been the same had the withheld evidence

been disclosed. Kyles, 514 U.S. at 453.

44
 New York utilizes a more lenient standard where, as here,

undisclosed Brady material was the subject of a specific request by the

defense, in which case the defense need only show that had the evidence

been disclosed, there would have been a “reasonable possibility” of a more

favorable outcome at trial. Giuca, 33 N.Y.3d at 473; People v. Vilardi, 76

N.Y.2d 67 (1990). In these circumstances, the prosecution’s failure to

disclose the favorable evidence is “seldom, if ever” excusable. Vilardi, 76

N.Y.2d at 77. This “hard line” and “strict” standard, People v. Bell, 71

Misc.3d 646, 659 (Queens Cty. Sup. Ct. 2021), requires nothing more than

a reasonable possibility that one juror might have changed their “guilty”

vote to one more favorable to the defendant. Cone v. Bell, 556 U.S. 449,

452 (2009).

Where more than one item of favorable impeachment evidence has

been withheld, materiality must be determined by the “cumulative

impact of the withholding.” Kyles, 514 U.S. at 436-37.

C. The Instant Brady Violation

1. Russo’s Admission to Ingram Was Favorable to Giuca

Russo’s admission to Ingram that he returned to Giuca’s home after

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

45
clearly was favorable to Giuca. It was consistent with Giuca’s defense (see

T46, 964-68; Gregory: 6/14/21, pp. 40, 65), severely undermined the

testimony of Cleary (T322-24), Beharry (T649) and Avitto (T770-75) and

directly contradicted both of Nicolazzi’s inconsistent theories of Giuca’s

guilt (T985-94, 1016-22).

Nicolazzi and McNeill acknowledged that the Ingram recording was

favorable to Giuca and should have been disclosed before trial (Nicolazzi:

6/2/21, p. 131; McNeill: 5/11/21, p. 120).

2. The People Suppressed Russo’s Admission from Giuca

The hearing evidence established by a preponderance of the

evidence, see C.P.L. § 440.30(6), that Nicolazzi didn’t disclose the Ingram

recording or evidence of Russo’s admission to Ingram before trial.

Nicolazzi was organized, meticulous and careful. She had a habit of

“making lists” and maintained an exact reproduction of the materials she

disclosed to Giuca and Russo (Nicolazzi: 6/2/21, pp. 45, 49; 6/3/21, p. 59;

Carvajal: 5/20/21, p. 90). Yet Nicolazzi couldn’t state whether she

disclosed the evidence to Giuca (def. ex. A, ¶ 7) and conceded there was

no “proof positive” that she disclosed the favorable Ingram evidence to

Giuca (6/2/21, pp. 60-61, 71, 131).

46
 Carvajal conducted an extensive months-long review of the file in

2018 (5/20/21, pp. 98, 102; def. exs. B and C). She confirmed that the

People’s file didn’t contain any proof that Nicolazzi disclosed the

favorable Ingram evidence (5/20/21, pp. 118, 143; see joint ex. 29).

Almost two months after Carvajal disclosed the Ingram recording

to the defense, Joblove, aware of the defense allegation that it hadn’t been

disclosed before trial and of Carvajal’s thorough review of the file

(5/19/21, pp. 53-54, 71-72) admitted to Judge Wilson of the Court of

Appeals that “as best he could ascertain” Nicolazzi didn’t disclose the

Ingram recording or any evidence of Russo’s admission to Ingram before

trial (joint ex. 28, p. 9).

Shortly before the hearing, the People reconstructed the “entire

Bates-stamped production of Rosario material” given to Giuca and Russo

before trial. They have conceded that the reproduction doesn’t include

any “document, file or any other information that refers or relates to

Joseph Ingram, the Ingram audio recording or the transcript of the

Ingram audio recording” (joint ex. 26, ¶ 4).

Conversely, there is substantial evidence that Nicolazzi didn’t

disclose the Ingram recording or any evidence of Russo’s admission to

47
Ingram prior to trial. Nicolazzi provided Gregory and Fink the same

materials before trial (Nicolazzi: 6/2/21, p. 95; joint ex. 5). Both attorneys

are confident that Nicolazzi didn’t provide them with the Ingram

evidence. Both attorneys are confident that the first time they heard the

Ingram recording or became aware of its contents was in June 2018

(Gregory: 6/14/21, pp. 37-45, 58, 65, 68, 74, 121, 134; Fink: 5/11/21, pp.

187-89; 5/19/21, pp. 41, 93-94).

Gregory’s and Fink’s testimony was compelling because they

detailed the investigative steps they would have taken had they been

aware of the Ingram recording. Both explained that they didn’t take such

steps because they weren’t aware of Russo’s admission to Ingram

(Gregory: 6/14/21, pp. 40, 43, 58-61; Fink: 5/11/21, pp. 187-89).

The People’s reliance on Nicolazzi’s Rosario disclosure letter,

comments made by Gregory in his opening statement, and a late-trial

colloquy at which Nicolazzi mentioned Ingram as circumstantial proof

that she disclosed Russo’s admission to Ingram is unpersuasive (see

People’s memo of law in opposition, pp. 25-27; Nicolazzi: 6/2/21, pp. 56,

61, 146-52; 6/3/21, pp. 143-44; McNeill: 5/11/21, pp. 84-85, 88, 120, 133-

35).

48
 As an initial matter, Gregory was unequivocal that Ingram wasn’t

the source of any information in his opening statement (6/14/21, pp. 36-

37, 134, 140-41). His remark that Russo returned to Giuca’s home was

based upon information provided to him by Giuca or Matthew Giuliano

(id. at 139-40). Notably, after Gregory’s opening statement, Nicolazzi

asked him if she should assume that Giuliano would be a defense witness

(T52). Nicolazzi didn’t ask Gregory if Ingram would be a defense witness.

Once Nicolazzi told Gregory near the end of the trial that Ingram,

a prosecution witness who Gregory reasonably believed would favor the

prosecution and harm Giuca (joint exs. 8-9; Gregory: 6/14/21, p. 42)

wasn’t going to testify, Gregory reasonably focused his attention on

Avitto, who Nicolazzi just told him was going to testify, rather than

whether he had been provided with materials from a non-testifying

prosecution witness (6/14/21, pp. 42, 51-56, 84, 124; T744-46).

If Nicolazzi’s August 22, 2005 letter serves as proof of anything, it

is the unreliability of her disclosure representations. The letter proves

that she knew there were exactly 15 recorded sworn statements of

prosecution witnesses (see Nicolazzi: 6/2/21, pp. 76-78). It demonstrates

her ostensible intent to disclose them three weeks before she “screwed

49
up” (6/3/21, p. 122) by failing to disclose the Denihan recording until Fink

asked for it during the trial (T114-15). She then absurdly claimed that

she didn’t know Denihan had made a recorded statement even though

Denihan’s recording was among the 15 she had recently represented

would be disclosed (T120 cf. 6/3/21, pp. 85-104; joint ex. 21, def. exs. N,

O, P).

Nicolazzi’s transparent, after-the-fact attempt to sanitize her false

representation to Justice Marrus professing her complete ignorance that

Denihan made a recorded statement should lead the Court to discredit

all her testimony that contradicts the trial transcript regarding her

disclosure of evidence. It is, of course, possible that Nicolazzi didn’t listen

to the Denihan recording before trial and/or unintentionally forgot to

disclose it prior to Fink’s demand for it. But her representation to Justice

Marrus that “she didn’t know it existed” (T120) and her self-serving

testimony before this Court that she “didn’t remember” it even after Fink

specifically demanded it (see 6/2/21, pp. 37-38, 44; 6/3/21, pp. 95, 106)

strain credulity given her thorough and meticulous nature, her review of

numerous materials describing Denihan’s recording, and her similar

“claim of ignorance” in a murder case she tried a few months before

50
Giuca’s trial14 (Nicolazzi: 6/2/21, p. 45; Carvajal: 5/20/21, p. 90; joint ex.

21; def. exs. N, O, P).

Even if the Court credits Nicolazzi’s explanation for her

nondisclosure of the Denihan recording until it was demanded in the

middle of trial, the People’s reliance on the August 22, 2005 letter as

circumstantial proof of her disclosure of the Ingram recording is still

thwarted by this inconvenient truth: if Nicolazzi “forgot” to disclose the

sworn recording of a “crucial” trial witness until counsel demanded it

even though she previously stated her intent to disclose it and had

reviewed numerous documents specifically referencing it, there is no

credible basis for the Court to conclude by a preponderance of the

evidence that she disclosed an exculpatory recording of Ingram, a non-

testifying witness whose name she apparently couldn’t remember, where

two experienced defense attorneys testified they are virtually certain it

wasn’t disclosed before trial.

14
In People v. Jermaine Cox, Nicolazzi was confronted by trial counsel in the middle
of the trial about her nondisclosure of favorable identification evidence she previously
represented existed in a sworn disclosure letter. Just as she did regarding the
Denihan recording, Nicolazzi professed complete ignorance about the evidence’s
existence (see ex. BBBB to Bederow aff., ¶¶ 50-54, 95-100).
51
 The evidentiary value of Nicolazzi’s August 22, 2005 letter is

further undermined by the trial transcript. Notwithstanding Nicolazzi’s

15 years after-the-fact self-serving testimony that any Bates-stamped

evidence was disclosed under that letter (6/2/21, pp. 87-88, 91), the trial

record clearly demonstrates that she didn’t make timely disclosures of

the Romero recording (T174), the HIR (T174) and Calciano’s grand jury

testimony (T622, 631-32, 744).

Nicolazzi admitted that the Ingram recording was favorable to

Giuca (6/2/21, p. 131). She admitted that she knew Gregory was unaware

of Russo’s admission to Ingram when she debriefed Ingram on July 21,

2005 (id. at 132-35; joint. exs. A and B). If she disclosed evidence of

Russo’s admission (def. ex. A, ¶ 7) she did so as part of her approximately

2,000-page Rosario disclosure on August 22, 2005 (6/2/21, p. 146). Such a

belated disclosure (if it even occurred) demonstrates her indifference to

Giuca’s constitutional right to timely receive exculpatory evidence in the

prosecution’s possession15 and supports the defense argument that

Russo’s admission to Ingram wasn’t disclosed to Giuca before trial.

Nicolazzi buried unspecified Brady material that was in her possession in 2004 and
15

early 2005, as part of her August 22, 2005, Rosario disclosure, even though she swore

52
 Finally, Nicolazzi’s documented history of concealing favorable

evidence from Giuca cannot be ignored. Every appellate jurist (10 of 10)

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

hearing concluded that Nicolazzi failed to disclose favorable

impeachment evidence regarding Avitto’s possible motive to lie and failed

to correct his false testimony—including about Nicolazzi’s direct

involvement in Avitto’s own criminal case. See Giuca, 33 N.Y.3d at 476-

78; Giuca, 158 A.D.3d at 646-47.

In 2019, Judge Jenny Rivera of the Court of Appeals described

Nicolazzi’s misconduct and how she took “full advantage” of her

suppression of evidence and elicitation of misleading testimony

in violation of her duty as a public officer to

deal fairly with the accused and be candid
with the courts, [Nicolazzi] also misled the
court, the jury and defense counsel by failing
to correct Avitto’s statements that he was doing
well in his program, or disclose that she was “the
DA” who appeared at the sidebar with the court
and that it was she who told the judge in Avitto’s
drug case that he was providing information in a
murder investigation. The latter is particularly
troubling conduct as [Nicolazzi] drew out the
misleading statement on her redirect of Avitto to
offset any possible damage to his credibility

in February 2005 that she was unaware of any Brady material. (6/2/21, pp. 112-14;
6/3/21, pp. 3-27; joint ex. 17; def exs. E, F, G, H).
53
 inflicted by counsel’s cross-examination. This was
not a mistake or misstep because [Nicolazzi] was
quick to have Avitto clarify “the judge” in his drug
case was not the same judge present during
[Giuca’s] trial, while she avoided eliciting that she
was “the DA” at the June 13 [2005] appearance.
This was an attempt to recover ground by
bolstering the credibility of the witness after
defense counsel’s cross examination—a
particularly egregious violation of our law
and [Nicolazzi’s] ethical obligations

Giuca, 33 N.Y.3d at 480-83 (internal citations omitted) (emphasis added).

3. The People Deprived Giuca of “Meaningful Access” to

Ingram

On July 21, 2005, Ingram swore to Nicolazzi that he didn’t tell

Giuca that Russo admitted to him that Giuca refused to take the murder

weapon from Russo (joint ex. B, p. 19). Ingram also made it clear to

Nicolazzi that Gregory was unaware of Russo’s admission to Ingram (id.

at 23). Four days later, Ingram was moved out of Rikers Island to an

upstate prison (joint ex. 11). Nicolazzi knew that Ingram was

incarcerated but his exact location “didn’t matter” to her (6/2/21, pp. 152-

53).

The defense demanded contact information for civilian witnesses,

including names, addresses and dates of birth (joint ex. 15, “Demand for

Discovery,” ¶¶ 9, 12, 14). Consistent with her “broad obligation” under

54
Brady, Nicolazzi was required to disclose the favorable Ingram evidence

and provide the defense “with meaningful access” to Ingram. Rong He, 34

N.Y.3d at 958.

Nicolazzi withheld all information about Ingram until the trial

started when she portrayed “James Ingram” as a prosecution witness

(joint ex. 8) and gave Gregory an inaccurate list of “James Ingram’s”

convictions that she hand-copied from his rap sheet (joint exs. 9, 27;

6/3/21, pp. 118-21). Nicolazzi didn’t include information from Ingram’s

rap sheet that would have enabled Gregory to investigate or locate

Ingram, including his proper first name (Joseph), date of birth, NYSID

number or location (joint ex. 27).

Nicolazzi’s representation of Ingram as a prosecution witness

steered Gregory away from pursuing him as a favorable defense witness

because he reasonably believed that as a prosecution witness, Ingram

would have inculpated Giuca (6/14/21, p. 42); see People v. Garcia, 46

A.D.3d 461, 463-64 (1st Dept. 2007) (prosecutor’s listing exculpatory

witness as a prosecution witness gave the defense “reason to believe that

[the witness]…would testify favorably for the prosecution” and failed to

make favorable evidence available to the defense).

55
 Moreover, Gregory was entitled to rely on the good faith of

Nicolazzi’s representation that she would comply with her Brady

obligation (joint ex. 17, ¶ 34), which gave him no reason to search for

Ingram under the belief that he would have been a favorable defense

witness. See Banks, 540 U.S. at 695-96 (defendant is not required to

“scavenge for hints of undisclosed Brady material” when the prosecutor

has represented “that all such material has been disclosed”); Strickler,

527 U.S. at 280-81, 284-87.

In these circumstances, Nicolazzi’s failure to disclose “any means

for defense counsel to contact the witness…is tantamount to suppression

of the requested information.” Rong He, 34 N.Y.3d at 959.

D. The Brady Violations Satisfy the Reasonable Possibility

Standard

The People have conceded that the reasonable possibility standard

of materiality is applicable (see People’s memo of law in opposition, p. 2).

It is reasonably possible that the outcome of the trial would have been

more favorable to Giuca if the People had disclosed the Ingram recording

before trial and afforded the defense a meaningful opportunity to

investigate and conduct a thorough interview of Ingram.

56
 1. Russo’s Admission Was Against His Penal Interest

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

weapon from him would have been admissible as a declaration against

Russo’s penal interest (see defense memo of law, pp. 20-27; defense reply

memo of law, pp. 10-15).

Russo was indicted for two counts of murder, two counts of robbery

in the first degree and criminal possession of a weapon in the second and

third degrees (ex. AAAA to Bederow aff., August 5, 2019). The murder

counts accused Russo of shooting Fisher with a handgun. One of the

robbery counts alleged that during a robbery Russo was armed with a

handgun. The weapons counts charged Russo with possession of a loaded

handgun. One of the weapons counts required proof that Russo possessed

a handgun not in his home or place of business. The bill of particulars

against Russo alleged that

on or about October 12, 2003, at approximately

6:41 a.m.…[Russo] did forcibly take personal
property from Mark Fisher and did repeatedly
shoot Mark Fisher with a handgun, thereby
causing his death

(joint ex. 18, ¶ 25).

57
 Russo’s admission that Giuca refused to take the handgun he used

to murder Fisher was made outside of his home or place of business, a

few blocks away from where Fisher was robbed and murdered minutes

earlier. The admission was against Russo’s penal interest because it

“disserved” him by directly implicating him in numerous crimes. People

v. Brensic, 70 N.Y.2d 9, 16 (1987). Nicolazzi explained that Russo’s

admission that Giuca refused to take the murder weapon from Russo was

proof that Russo possessed the handgun he used to rob and murder

Fisher and therefore incriminated Russo with respect to several counts

in the indictment (6/2/21, pp. 142-44).

At a minimum, Giuca was entitled to an evidentiary hearing—in

2005, before the trial court, while Ingram was alive (joint ex. 26, ¶ 2)—to

determine the admissibility of Ingram’s testimony. Brensic, 70 N.Y.2d at

16 (trial court should conduct a hearing if there is a dispute regarding

whether the criteria for admitting a declaration against penal interest

have been satisfied). If Gregory had been afforded a meaningful

opportunity to interview Ingram and vet his credibility, at such a hearing

he could have presented much more detailed evidence than existed in

58
Nicolazzi’s recorded interview of Ingram and he could have even called

Ingram as a witness.

Nicolazzi’s suppression of the Ingram recording and her failure to

provide Giuca a meaningful opportunity to locate Ingram deprived Giuca

of this critical pre-trial hearing. Now, 16 years later, the People seek to

benefit from Nicolazzi’s suppression of favorable evidence by urging the

Court to rule that Russo’s admission to Ingram would have been

inadmissible after conducting a speculative, backward-looking “hearing”

on an inadequate record consisting solely of the Ingram recording,

without the defense having had an opportunity to present evidence from

an investigation and interview of Ingram or directly from the now-

deceased Ingram (Gregory: 6/14/21, pp. 40, 58, 65, 74, 121; joint ex. 26, ¶

2).

The Court should reject the People’s argument since it was

Nicolazzi’s suppression of evidence that deprived Giuca from acquiring

the necessary evidence to seek a hearing in front of the trial court. See

Brensic, 70 N.Y.2d at 25-26 (whether a statement is against the

declarant’s penal interest and its reliability are matters “entrusted to the

trial court”) (emphasis added).

59
 2. Ingram Would Have Been a Reliable Witness

That Ingram was reliable and would have been a credible witness

is strongly supported by the fact that Nicolazzi—the only lawyer who

interviewed him (joint ex. 1)—had six weeks to assess his credibility and

gave every indication that she found him credible. She placed “James

Ingram” on her witness list (joint ex. 8). She disclosed a handwritten list

of “James Ingram’s” convictions as she did for every witness with a

criminal history (joint exs. 9, 17, ¶ 25, 32). She referred to him as “our

witness James Ingram” in a late-trial colloquy with Gregory and Justice

Marrus (T746).

Nicolazzi’s recent sworn claims that she believed Ingram wasn’t

credible (6/2/21, pp. 128, 131-36, 138-42, 159-60; def. ex. A, ¶ 11) and that

she placed him on her witness list out of an abundance of caution to

prevent a mistrial if a juror knew him because his name might have been

mentioned at trial are belied by her trial conduct and aren’t credible

(6/2/21, pp. 53, 81-82). Nicolazzi’s sworn representations regarding her

basis for placing Ingram on her witness list are a desperate attempt at

revisionist history in response to defense allegations that if she portrayed

Ingram as a prosecution witness in good faith, she must have found him

60
credible and she misled Gregory into believing that Ingram’s testimony

would have inculpated Giuca (see Bederow aff., August 5, 2019, ¶¶ 272,

289-95; defense opening memo of law, pp. 16-17, 22).

In addition to being undercut by her own representations at trial

that Ingram was a prosecution witness (see joint exs. 8 and 9; T746),

Nicolazzi’s futile, self-serving explanation for including him on her

witness list for another reason was obliterated by McCafferty and

McNeill. Near the end of the trial, Nicolazzi and the entire prosecution

team discussed whether Ingram should be called as a prosecution witness

(McCafferty: 5/6/21, pp. 41-42, 50-51, 53, 59). McNeill, who was as

involved in the case as Nicolazzi (id at 46), admitted the obvious: Ingram

was on the People’s witness list because “at all times after July 21, 2005,”

he was a possible prosecution witness (5/11/21, pp. 77, 98, 159, 161, 167,

172-73).

Nicolazzi’s claim that she put Ingram on her witness list because

he might have been mentioned at trial made little sense considering her

trial conduct. There was no reason for the prosecution to mention Ingram

at trial because Nicolazzi purportedly found him unreliable. There was

no reason for the defense to mention Ingram given that Nicolazzi

61
suppressed his exculpatory evidence from Giuca and Gregory didn’t have

any basis to contact or locate him.

Moreover, Nicolazzi didn’t include the names of other non-

witnesses who were mentioned at trial,16 most strikingly Giuca’s brother

Matthew Giuliano, who featured prominently in the prosecution’s case

and was frequently mentioned at trial (see Nicolazzi: 6/2/21, pp. 83-85;

McCafferty: 5/6/21, p. 47), including three times in the People’s opening

against Russo (T58, 59, 72) and six times in Nicolazzi’s summation

against Giuca (T1004, 1010, 1014, 1017-19).

The significance of the defense being deprived of a meaningful

opportunity to investigate, interview and vet Ingram before trial cannot

be overstated. Gregory could have demonstrated Ingram’s reliability by

asking him more detailed questions about his interactions with Russo

and Giuca than Nicolazzi did (6/14/21, pp. 58, 65). He could have clarified

areas Nicolazzi left unclear but which she conveniently now claims

demonstrates the unreliability of her own trial witness.

16
Frank Giuliano wasn’t on the People’s witness list even though the People elicited
testimony about a conversation he had with Giuca (T468-69). Fisher’s friends Jackie
Conway (T196, 208, 364) and Janet Early (T208, 375) were also mentioned by the
prosecution but not included on their witness list.

62
 Even without the defense having had an opportunity to interview

Ingram, the Ingram recording alone establishes that if he testified, one

juror might have found him credible, which could have resulted in a more

favorable outcome for Giuca at trial.

On its face, the Ingram recording had multiple indicia of reliability.

Ingram was housed in the same cellblock (8U) as Giuca (joint ex. 4, p. 2).

Just as Ingram told Nicolazzi, he and Russo travelled on the same bus to

and from the hematology clinic at Bellevue17 (joint ex. 2, pp. 3-4; joint exs.

11-12, 24-26; Vasaturo: 5/20/21, pp. 166-69, 174). When he returned to

Rikers Island, Ingram immediately called his attorney and arranged to

meet Nicolazzi the following day (joint exs. 7, 11, 26). Ingram was placed

under oath (joint ex. 2, p. 1), which boosted his credibility because, as

Nicolazzi acknowledged, a sworn witness is more likely to be truthful

17
The People knew that Ingram and Russo went to Bellevue together no later than
August 2018 (joint exs. 11, 12, 24, 25; Carvajal: 5/20/21, pp. 135-36). Yet in 2019 they
argued that the jury might have discredited the “implausibility of [Ingram’s] claim
that he spoke to both Russo and Giuca (see People’s memo of law in opposition, p. 22).
To the contrary, Gregory would have enhanced Ingram’s credibility by proving that
Ingram was housed with Giuca, went to Bellevue with Russo on July 19, 2005, and
then took immediate steps to contact Nicolazzi (Gregory: 6/14/21, pp. 60-61).

63
because he is subject to prosecution for making materially false

statements18 (6/2/21, p. 125).

Ingram’s sworn claim that Russo told him that he shot Fisher19

after a physical struggle, robbed him and returned to Giuca’s home (joint

ex. 2, pp. 11-12, 15) were virtually identical to the People’s theory of the

case (see e.g., T841, 844, 852, 980, 989, 1005-06, 1016-17). The only part

that differed was Russo’s statement that Giuca wouldn’t take the murder

weapon from him (joint ex. 2, pp. 15-16).

Nicolazzi’s testimony that Ingram’s statement was unreliable

because he accused the younger Russo of being a “snitch” in front of other

18
The juxtaposition between Nicolazzi’s assessments of Ingram and Avitto is striking.
Ingram made a sworn statement within a day of acquiring his information. Most of
the information he told her was consistent with her theory of the case. DOC and
medical records proved that Ingram told the truth about going to Bellevue with
Russo, which Nicolazzi didn’t even bother investigating because she had “no doubt”
it was true (6/2/21, p. 136). She placed Ingram on her witness list, yet now claims she
has always believed Ingram was unreliable. In contrast, Avitto, a mentally ill drug
addict and career criminal met with her after he triggered a lengthy prison sentence,
four months after he purportedly acquired information against Giuca. Nicolazzi didn’t
place him under oath before he made a statement because she still “had to vet him”
(6/2/21, pp. 121-122). He contradicted Cleary and Calciano. Yet Nicolazzi described
Avitto as trustful, truthful and honest (T1010-11, 1022).
19
Ingram’s claim that Russo admitted he told Giuca that he shot Fisher “in the leg”
was strikingly similar to what Russo told Gregory Ware (joint ex. 34, p. 23) (“he aimed
low and shot at the kid’s legs”); T679 (“he said he aimed low”). Nicolazzi interviewed
Ingram more than one month before she disclosed the Rosario material, which means
that Giuca couldn’t have been aware of Ware’s statements when Nicolazzi
interviewed Ingram.

64
inmates on a corrections bus before Russo spoke to him about Fisher’s

murder was entirely speculative (6/2/21, pp. 128, 134). Ingram told

Nicolazzi that he and Russo communicated over the course of numerous

conversations on a bus and as they were moved around Bellevue (joint

ex. 2, pp. 5-6). Nicolazzi assumed Ingram and Russo spoke in front of

other inmates (6/2/21, p. 128) without even asking him if that was the

case. She didn’t ask Ingram how he and Russo were situated on the bus

and at Bellevue. She didn’t ask Ingram to describe whether he and Russo

spoke at normal volume, whispered, or took any precautions to prevent

from being overheard by other inmates. She didn’t even review DOC

transportation logs, a basic task that would have conclusively established

whether Ingram and Russo travelled with other inmates on July 19, 2005

(see Vasaturo: 5/20/21, pp. 163, 165-66) (DOC maintained records of

inmate travel and movement).

Ingram told Nicolazzi that “at one point” after Ingram convinced

Russo that Giuca was not “snitching” against him, they “started talking

about the case” (joint ex. 2, p. 10). Nicolazzi didn’t ask Ingram how much

time elapsed between their conversations about “snitching” and the case,

or what occurred between the discussions. She didn’t ask Ingram to

65
describe his tone or demeanor with Russo or whether Russo appeared

intimidated, nervous, scared, angry, calm, or indifferent when he spoke

to Ingram.

Nicolazzi’s apparent lack of interest in Russo’s demeanor when he

spoke to Ingram on July 19, 2005, and its relevance to whether he was

“coerced” into making an unreliable statement by Ingram, as she now

purportedly believes (see 6/2/21, p. 159), was surprising given that she

knew Russo was a sociopath months before she met Ingram.

On June 26, 2005, Nicolazzi informed the trial court about Russo’s

history of violence. He repeatedly assaulted and threatened his own

grandmother and destroyed her property. A few weeks after he murdered

Fisher, Russo threatened to shoot his ex-girlfriend. He forced another

young man to put his hand through a window at gunpoint20 (joint ex. 33,

pp. 46-47). Nicolazzi also knew since October 2004 that Russo was proud

of his crime and bragged about it. She knew that Russo created a macabre

shrine by posting newspaper articles about Fisher’s murder which

included his picture on his bedroom wall (T726-27, 732).

Cleary testified that Russo was “nuts” and agreed that he was “the kind of guy that
20

on a moment’s notice can snap and get angry for no reason” (T345).
66
 Nicolazzi must have appreciated that on July 19, 2005, Russo was

an arrogant, aggressive, violent, impulsive, and unstable young man who

was unlikely to be bullied or intimidated into incriminating himself and

falsely exculpating Giuca to satisfy the inquisitive Ingram.21 To the

contrary, the Ingram recording demonstrates a high degree of trust and

comfort between Ingram and Russo. They exchanged phone numbers and

discussed arranging three-way phone calls. Russo even asked Ingram to

contact Giuca about another individual (joint ex. 2, pp. 16-17).

Nicolazzi’s claim that Ingram was unreliable because he was “hazy

and muddy” (6/2/21, p. 128) was similarly overstated. Ingram sounded

intelligent and calm on the recording, if not exhausted as he spoke to

Nicolazzi shortly after he received medical attention at Bellevue and

while he was taking unnamed medication (joint ex. 2, p. 21). He described

recent conversations with two men in which there was some overlap in

substance, but he attempted to be accurate about who said what (id. at

15).

21
The defense attempted to delve into Russo’s violent nature to demonstrate that he
was unlikely to be intimidated by Ingram. The Court prevented further inquiry,
ruling it irrelevant (6/3/21, pp. 53-54).
67
 Nicolazzi didn’t ask Ingram about his health issues, what

medication he was taking, why he was taking it, when he last took it or

of any possible side effects. It is reasonably possible that if Gregory had

interviewed Ingram on a later date, he would have found Ingram to be

cogent, clear headed and reliable.

Nor did Ingram need to be “prompted” to report information (see

Nicolazzi: 6/2/21, p. 142). Ingram asked Nicolazzi “is that all you need?”

(joint ex. 2, p. 21) after he gave her a “dry run” of his information before

he was recorded (McCafferty, 5/6/21, pp. 26-27). Given the context,

Ingram appeared to be asking Nicolazzi if she wanted him to address

other topics they had discussed before he was sworn and recorded.

Ingram’s testimony wouldn’t have been unreliable because Russo

initially “lied” about the caliber of the murder weapon (see People’s memo

of law in opposition, pp. 8-9). It isn’t hard to understand why an

aggressive and boastful thug like Russo wanted to appear “tough” by

claiming he used a more powerful pistol than the .22 he used to shoot

Fisher. In any event, Russo ultimately told Ingram that he used a .22

(joint ex. 2, pp. 11, 13). To the extent it mattered, Ingram’s familiarity

with firearms, which included firearm convictions in three states, would

68
have bolstered his testimony explaining why he believed Russo used a

.22 rather than a .9 (joint ex. 27).

In the final analysis, Nicolazzi’s subjective belief that Ingram was

unreliable is irrelevant. It was her obligation to disclose the favorable

Ingram recording so the defense could have investigated it and,

ultimately, the jury should have decided its significance. See Baxley, 84

N.Y.2d at 213-14.

3. Ingram’s Testimony Might Have Led to a More Favorable

Outcome for Giuca

In 2019, the Court of Appeals, unaware of Russo’s admission to

Ingram because Nicolazzi withheld it, 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 after the murder.”22 Giuca, 33 N.Y.3d

at 478.

Giuca wasn’t identified by any eyewitnesses or linked to the crime

by any forensic evidence. Cleary, Calciano and Beharry all testified that

they repeatedly lied until they eventually succumbed to pressure by law

22
The only other evidence mentioned by the Court was a blanket from Giuca’s home
that was found at the crime scene. There was no dispute that Giuca, Russo, Fisher
and several other people were together at Giuca’s home shortly before the murder.
69
enforcement and incriminated Giuca (Cleary: T329-30, 338-39, 354-55;

Calciano: T587-88, 594-603; Beharry: T651-53). Nicolazzi described

Avitto, a career criminal and jailhouse informant with an obvious motive

to curry favor with her, and who alleged an entirely different version of

events than Cleary and Calciano, as the only honest witness among those

to whom Giuca purportedly admitted his role in Fisher’s murder (T1010-

11, 1022).

Cleary and Calciano purportedly heard the same admission from

Giuca but contradicted each other on virtually every detail, including

when they met at Giuca’s home, whether Giuca told them he instructed

Russo to harm Fisher, armed him, and took the gun from him after the

murder (Cleary: T319-24) or whether he said Russo asked for a gun to

rob Fisher and provided no other details (Calciano: T580-81, 608-09).

Remarkably, Cleary swore that he saw Calciano tamper with evidence at

Giuca’s home (T331), but Calciano swore that she didn’t and accused

Cleary of lying (T589, 606, 615, 617, 627-28).

The People’s case was further hampered by the significant

contradiction between Cleary’s testimony that Giuca told him he gave

Beharry two guns shortly after the crime (a .22 and a .380) (T266-67, 463-

70
64) and Beharry’s testimony that he took one gun of an unknown caliber

from Giuca (T649).

Thus, as the trial neared its conclusion, the People’s case was in

disarray. It was evident that their three key witnesses, all of whom made

numerous inconsistent statements before trial and were pressured into

incriminating Giuca, provided incompatible testimony and that at least

one of Cleary and Calciano committed perjury. These were the

circumstances confronting the People when Nicolazzi turned to Avitto

and put forth an alternative theory that Giuca couldn’t have been home

at the time of the murder because he was a few blocks away helping

Russo rob and murder Fisher (Avitto: 770-75).

Ingram’s testimony would have supported Giuca’s defense that he

wasn’t involved in the crime and didn’t help Russo dispose of the murder

weapon when Russo returned to his home after the crime (T46, 964-68;

Gregory: 6/14/21, p. 40). Ingram’s testimony would have materially

contradicted Cleary’s claims that Giuca admitted taking the murder

weapon from Russo immediately after the murder and that he gave two

guns to Beharry. Ingram’s testimony also would have provided jurors

with a strong reason to doubt whether Beharry disposed of the murder

71
weapon, even if they credited Beharry’s pressured testimony that he

disposed of a gun for Giuca.

Ingram’s testimony would have directly contradicted Avitto’s

dubious claim that Giuca admitted he was with Russo blocks away from

his home and helped beat, rob and kill Fisher. Moreover, Ingram’s

testimony would have demolished Avitto’s credibility if the jury also had

been made aware that Nicolazzi and Avitto concealed her direct

involvement in Avitto’s pending criminal case and that Nicolazzi failed

to correct Avitto’s false testimony, where the truth would have exposed

Avitto’s strong motive to testify against Giuca in exchange for favorable

treatment from Nicolazzi on his own case. See Giuca, 33 N.Y.3d at 476-

78.

Ingram’s testimony possibly could have changed the outcome of the

trial given Nicolazzi’s substantial reliance on her flawed witnesses’

inconsistent testimony in support of incompatible arguments that (a)

Russo went to Giuca’s house immediately after the murder and gave

Giuca the murder weapon before Giuca gave it to Beharry, which

Nicolazzi claimed was “enough evidence” to prove Giuca’s guilt for

Fisher’s murder (T989-94, 1004-06, 1021-22), (b) there was “indisputable

72
proof” that Giuca couldn’t have been home at the time of the murder and

the only “common sense” explanation was that he helped Russo murder

Fisher several blocks away (T1016-18), and (c) Giuca orchestrated a

cover-up of the crime because he was afraid Denihan might have seen

him take the murder weapon from Russo (T985-87, 993).

People v. Ulett, 33 N.Y.3d 512 (2019), which the Court of Appeals

decided two weeks after it reinstated Giuca’s conviction, compels reversal

of Giuca’s conviction. In Ulett, the Court unanimously reversed a murder

conviction because the Brooklyn DA’s office suppressed a video which the

prosecutor falsely implied to the jury didn’t exist (id. at 517).

The case against Ulett was strong. Two eyewitnesses identified him

as the shooter. One of the eyewitnesses was the defendant’s childhood

friend. A third witness, who had known the defendant for more than 20

years, saw him shortly before he heard gunshots and saw him again

shortly after the crime holding something in his waistband. Surveillance

video from the defendant’s building introduced into evidence showed

someone matching the defendant’s description leaving the building

minutes before the shooting and return soon thereafter (id. at 515-16).

73
 Notwithstanding “substantial proof” of Ulett’s guilt, the Court

reversed under the higher reasonable probability standard because the

prosecutor suppressed additional video from the lobby, denied its

existence and ridiculed counsel’s reference to the suppressed evidence as

“phantom evidence” when, in fact, the prosecutor had personally

reviewed the lobby video (id. at 514, 518-21). The Court held that the

suppressed lobby video could have been used to impeach prosecution

witnesses and could have provided leads for additional admissible

evidence (id. at 520-21).

Nicolazzi’s conduct, which is subject to the lower reasonable

possibility standard of materiality, surpasses or at least equals the

conduct which warranted reversal in Ulett under the higher reasonable

probability standard. Like the prosecutor in Ulett, Nicolazzi suppressed

the favorable Ingram recording and falsely implied that it didn’t exist by

personally assuring the jury that Giuca gave Beharry the murder weapon

after he took it from Russo (T1021-22). She similarly disparaged Gregory

for speculating that Giuca didn’t take the murder weapon from Russo or

give it to Beharry:

now, during his summation, Mr. Gregory, ladies

and gentlemen, he can be as loud and as dramatic
74
 as he wants to be with all his wild speculation that
he threw out before you, that was based on no
evidence that is anywhere in that record, no
evidence to corroborate anything that he said to
you, so ladies and gentlemen, even if you scream
and yell, it [doesn’t] make it so

(T1023 cf. 964-68).

Nicolazzi’s unsworn representation to the jury that she was certain

Giuca received the murder weapon from Russo and gave it to Beharry,

combined with her criticism of Gregory for lacking the very evidence she

suppressed from him “compounded the prejudice,” Ulett, 33 N.Y.3d at

521, she already caused Giuca by her suppression of the Ingram

recording and evidence of Avitto’s possible motive to falsely accuse Giuca,

and her failure to correct Avitto’s false testimony. See Kyles, 514 U.S. at

436-37; Giuca, 33 N.Y. 3d at 476-78.

If Ulett warranted reversal under the higher materiality standard

notwithstanding the “substantial” proof of his guilt in the form of

multiple eyewitness identifications of the defendant, then Giuca’s

conviction, the “strong evidence” of which consisted of (a) his inconsistent

statements to admitted liars and an “honest” and altruistic jailhouse

informant (T1010-11, 1022) and (b) his “efforts to dispose of the gun

shortly after the murder,” Giuca, 33 N.Y.3d at 476-78, the vast majority
75
of which would have been contradicted by Ingram’s testimony and the

jury’s knowledge of the truth about Avitto, should be reversed under the

lower reasonable possibility standard.

* * *

Nicolazzi suppressed evidence that Russo admitted to Ingram that

Giuca refused to take the murder weapon from Russo immediately after

the crime. She failed to provide Giuca with a meaningful opportunity to

investigate and interview Ingram before trial. She suppressed favorable

impeachment evidence of Avitto and failed to correct his false testimony.

The People now must suffer the consequences under the assumption that

Ingram’s testimony, separately or cumulatively with the jury’s accurate

understanding of Avitto’s credibility, might have changed the outcome of

the trial. To hold otherwise will reward the People for Nicolazzi’s

egregious violations of Giuca’s right to due process.

76
 CONCLUSION

John Giuca’s C.P.L. § 440.10 motion, dated August 5, 2019, should

be granted, his conviction vacated, and a new trial ordered.

Respectfully submitted,

/s/Mark A. Bederow
__________________________
MARK A. BEDEROW
DANIEL L. BIBB
Carnegie Hall Tower
152 West 57th Street
8th Floor
New York, New York 10019
212.803.1293
mark@bederowlaw.com

Attorneys for John Giuca

Dated: New York, New York

July 19, 2021

77
 CERTIFICATION OF SERVICE

I HEREBY CERTIFY that on this 19th day of July 2021, a

copy of Defendant John Giuca’s Post C.P.L. § 440.10 Hearing
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: July 19, 2021

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