SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: PART 19 THE PEOPLE OF THE STATE OF NEW YORK, Ind. No. 8166/2004 -against- JOHN GIUCA, Defendant. DEFENDANT GIUCA’S POST-HEARING REPLY MEMORANDUM OF LAW MARK A. BEDEROW ANDREW M. STENGEL (of counsel) Law Office of Mark A. Bederow, P.C. 260 Madison Avenue New York, New York 10016 212.803.1293 (Phone) 917.591.8827 (Fax) [email protected] Attorneys for Defendant John GiucaTABLE OF CONTENTS TABLE OF AUTHORITIES POINT I JOHN AVITTO’S HEARING TESTIMONY IS NOT NECESSARY TO ESTABLISH JOHN GIUCA’S CLAIMS POINT II THE PEOPLE MISSTATE THE PROPER STANDARDS OF REVIEW FOR THEIR GIGLIO VIOLATIONS AND AVITTO’S INACCURATE TESTIMONY POINT IIT THE PEOPLE’S REPLY CONTAINS NUMEROUS MATERIAL MISSTATEMENT OF FACT A. Avitto’s Initial Contact with Detectives B. Ryan’s June 13, 2005 Avitto Progress Note C. Ms. Nicolazzi’s June 13, 2005 Comments to Avitto D. DA and EAC Correspondence and Notes from June 14 to 17, 2005 POINT IV CREDITING THE PEOPLE’S ARGUMENT THAT THERE, WERE NO GIGLIO VIOLATIONS IN CONNECTION WITH MS. NICOLAZZI’S INTERVENTION INTO AVITTO’S, CASE REQUIRES THE COURT TO “OVERRULE” THE COURT OF APPEALS PagePage POINT V THE PEOPLE IGNORED COUNSEL’S SPECIFIC REQUEST FOR FAVORABLE IMPEACHMENT EVIDENCE CONTAINED WITHIN AVITTO’S EAC RECORDS 25 POINT VI THE PEOPLE KNEW OR SHOULD HAVE KNOWN THAT AVITTO TESTIFIED INACCURATELY ABOUT HIS JUNE 13, 2005 RETURN TO COURT. 27 POINT VII THE PEOPLE’S WITHHOLDING OF EVIDENCE WAS. MATERIAL UNDER THE REASONABLE POSSIBILITY, STANDARD 32 CONCLUSION, 44TABLE OF AUTHORITIES Case Page Banks v. Dretke, 540 U.S. 668(2004) .... aoa Davis v. Alaska, 415 U.S. 308 (1974) .... 24 Jenkins v. Artuz, 294 F.3d 284 Q” Cir. 2002) 30 Napue v. Illinois, 360 U.S. 264 (195) .... 24 People v. Colon, 13 N.Y.3d 343 (2009) 18-19, 24, 30, 32 People v. Cwikla, 46 N.Y.2d 434 (1979) 15,19 People v. Giuca, 58 A.D.3d 750 (2" Dept. 2009) 33 People v. Goldstein, 6 N.Y .3d 119 (2005) 43-44 People v. Hardy, 4 N.Y.3d 192 (2005) 44 People v. Harris, 93 A.D.3d 58 (2 Dept. 2012) 33 People v. Negron, 26 N.Y.3d 262 (2015) 32-33 People v. Novoa, 70 N.Y.2d 490 (1987) 20, 32 People v. Paperno, 54 N.Y .2d 294 (1981) 22n People v. Qualls, 70 N.Y.2d 863 (1987) ve People v. Taylor, 26 N.Y .3d 217 (2015) 15-19, 24 People v. Vielman, 31 A.D.3d 674 (2" Dept. 2006)... 30 People v. Vilardi, 76 N.Y.2d 67 (1990) Shabazz v. Artuz, 336 F.3d 154 (2™ Cir. 2003)Case Page Strickler v. Greene, 527 U.S. 263 (1999) 25 United States v. Wallach, 935 F.2d 445 (2" Cir. 1991)... 32SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: PART 19 THE PEOPLE OF THE STATE OF NEW YORK, Ind. No. 8166/2004 -against- JOHN GIUCA, Defendant. DEFENDANT GIUCA’S POST-HEARING REPLY MEMORANDUM OF LAW POINT I JOHN AVITTO’S HEARING TESTIMONY IS NOT NECESSARY TO ESTABLISH JOHN GIUCA’S CLAIMS Neither John Avitto’s recantation nor his hearing testimony is necessary for the Court to rule that John Giuca’s constitutional rights were violated. See People’s Post-Hearing Memorandum of Law (“People’s Memo”) pp. 7-17, 39-46. Giuca’sclaims are easily established through the documentary evidence and testimony of witnesses other than Avitto, primarily Anna-Sigga Nicolazzi. The People’s evisceration of Avitto accomplishes little more than exposing the inaccuracy and absurdity of Ms. Nicolazzi’s vouching for his honesty and integrity in front of Giuca’s jury. In essence, the People defend the integrity of a verdict secured by Avitto’s “truthful” testimony by arguing that he is a conniving liar. The defense could have conducted the hearing without Avitto’s testimony because the determinative facts would be the same as they are now. Avitto’s hearing testimony has no bearing on the fact that Ms. Nicolazzi has admitted that she did not disclose any of the following in response to specific Giglio demands: (1) she met Avitto on June 13, 2005, while he had an open warrant and was facing a lengthy prison sentence, (2) during that meeting, he offered evidence against Giuca, (3) after the meeting she escorted him to court, where she advised the judge that Avitto had provided information to her about a homicide before the judge decided to release him, (4) she elicited testimony from Avitto that deliberately concealed her involvement in his cooperation and her appearance in court on his behalf; and (5) rather than correct the inaccurate testimony, she vouched for Avitto’s truthfulness. Hg. 437-40, 448, 506, 511, 515-18, 520-22, 666-70.Similarly, Avitto’s hearing testimony is irrelevant to reach the conclusion that the People suppressed internal and external communications that strongly support the defense position that Avitto sought, expected or received a benefit. Avitto’s recantation is not necessary to determine that his EAC records prove that contrary to his trial testimony, Avitto frequently lied about his mental health status in order to benefit himself just a few months before Ms. Nicolazzi argued that there was “no evidence” Avitto sought or received a benefit.' The People highlight Avitto’s hearing testimony but ignore controlling Court of Appeals precedent and overwhelming evidence that compel vacatur of Giuca’s conviction. Their emphasis on the evolution of Avitto’s recantation, his interactions with Marley Davis, and Doreen Giuliano’s effort to secure a fair trial for her son is a sideshow. Indeed, it evinces a consciousness that the hearing was an unmitigated disaster for them. ' The People ridicule Avitto’s testimony that he felt guilty about perjuring himself at trial because he recanted only after Marley Davis in collusion with Doreen Giuliano got the “vulnerable” Avitto to “break down” shortly after he left prison, See People's Memo pp. 41-42. Yet they credit Ms. Nicolazzi's sworn claim that Avitto contacted law enforcement to cooperate against Giuca because he thought what Giuca had done to Fisher was wrong, even though Avitto held the information for several months and came forward only after he exposed himself to a lengthy prison sentence. See Nicolazzi Affirmation, May 21, 2015, 49; Tr. 1022-23. During the hearing, Ms. Nicolazzi could not offer a cogent explanation why Avitto waited Several months (including more than one month after he was released from jail) to volunteer information in order to clear his conscience. Hg. 468-70,POINT I THE PEOPLE MISSTATE THE PROPER STANDARDS OF REVIEW FOR THEIR GIGLIO VIOLATIONS AND AVITTO’S INACCURATE TESTIMONY ‘The People erroneously employ two crucial standards in their reply. First, they improperly apply the “reasonable probability” standard to Giuca’s Giglio claims. See People’s Memo pp. 46, 73. The appropriate materiality test is the lenient “reasonable possibility” standard because of the specific demands made by trial counsel. See Defense Post-Hearing Memorandum of Law (“Post-Hearing Memo”) pp. 4-6, 41-42. Second, the People misstate the law with regard to knowledge of Avitto’s false or misleading testimony. See People’s Memo p. 70. The appropriate analysis is whether the prosecution knew or should have known that Avitto testified inaccurately. See Post-Hearing Memo pp. 80-81. POINT II THE PEOPLE’S REPLY CONTAINS NUMEROUS MATERIAL MISSTATEMENTS OF FACT The People repeatedly interpret facts harmful to them in a self-serving manner in order to persuade the Court to draw favorable inferences in support of their untenable positions. They are entitled to argue, but they are not entitled to their own facts.A. Avitto’s Initial Contact with Detectives Despite irrefutable evidence to the contrary, the People cling to the “fact” that Avitto met with detectives at his Brooklyn residential drug program before he absconded from it on June 9, 2005. This presumably demonstrated Avitto’s willingness to cooperate against Giuca before he had a motive to seek a benefit in exchange for his testimony.” See People’s Memo pp. 54, 71-73. The “proof” that Avitto met with detectives at his Brooklyn program before June 9, 2005, rests exclusively on the uncorroborated ten-year old “recollections” of Detectives Byrnes and McCafferty.’ Detective Byrnes, who did not recall significant witnesses he interviewed and important details he recorded about the crime,* nevertheless was certain he met Avitto a few weeks before June 13 at a rehab facility or halfway house in East New York. Hg. 322-25. Detective Byrnes did not recall whether Avitto first called the DA’s Office or the police. Hg. 317. He 2 Even if this were true, the People fail to understand that when Avitto met with Ms, Nicolazzi at the DA’s Office on June 13, 2005, everyone at that meeting knew there was a warrant for Avitto’s arrest and that he faced the possibility ‘ofa lengthy prison sentence. The jury was entitled to know the full circumstances surrounding Avitto’s cooperation, including Ms. Nicolazzi’s role in appearing on his warrant, in order to assess Avitto’s credibility > Neither detective took a single note documenting their mectings with Avitto. Hg. 285, 324-25. Detective McCafferty said that he did not take notes atthe initial interview because “our intention was just to go and find out what he had to offer the first time. I knew he was going to be re-interviewed at a subsequent time.” Yet when asked if he took notes at a subsequent interview, he said “it wasn’t my place to take notes.” Hg. 772, 784-85, “Detective Byres did not recall interviewing Hiroko and Michel Swornik or Daisy Martinez, the three neighbors who lived closest to the crime scene. The Sworniks heard voices, including that of a young female, and heard car doors ‘open and close at the time of the murder. Martinez saw a vehicle pulling away from the Sworniks’ driveway immediately after the shots were fired. Detective Byrnes would not concede that these were critical facts. He said Martinez’s observation of the car “could have been” important but he questioned the accuracy of her account. He minimized the Sworniks’ statements because they “were coming out of sleeping.” He knew the name Angel DiPietro and recalled that she claimed she was across the street from the crime scene at Albert Cleary’s home atthe time of the ‘murder, but he did not recall interviewing her roommates shortly after Hiroko Swornik told him she heard the voice ‘of “young woman” at the murder scene, even though Ms. DiPietro’s roommates told him that Ms. DiPietro changed her story about the time she left Giuca’s home. Hg. 295, 301-16, 5incredibly claimed that when he and Detective McCafferty—two experienced detectives investigating an important and high-profile murder case—first met Avitto in Brooklyn they could not take him to meet Ms. Nicolazzi because he was not allowed to leave the program. Hg. 322. Detective McCafferty believed that Avitto called Ms. Nicolazzi directly sometime in May or a few weeks before June 13. He said that Ms. Nicolazzi instructed Detective Byrnes and himself to meet Avitto, which he was certain occurred “somewhere in Brooklyn North.”* Hg. 757-59, 768-70. Both detectives and Ms. Nicolazzi testified that she was not present at this purported meeting. Hg. 322, 458-59, 770. Ms. Nicolazzi contradicted Detective McCafferty’s recollection. She learned about Avitto from Fisher case detectives. Hg. 458-59. She did not recall whether Avitto was in a program or not when he first met detectives. Hg. 460. But Ms. Nicolazzi did not doubt the accuracy of Sean Ryan’s notation that she told him on June 13, 2005, that Avitto contacted detectives on Thursday, June 9, with information on a homicide case. Hg. 462. Ms. Nicolazzi first met Avitto on June 13, 2005. Hg. 458-59. * Kingsboro Addiction Treatment Center, where Avitto resided from September 7 to 19, 2005, was and is located at ‘754 Lexington Avenue in Brooklyn, which is in “Brooklyn North” in NYPD parlance. 6The People’s insistence that Avitto met with detectives in his “Brooklyn program” before June 9, 2005, is delusional. Detectives Bynes’ and McCafferty’s certainty after more than ten years is flatly contradicted by Ms. Nicolazzi’s statements of June 13 and September 22, 2005, as well as EAC and Samaritan Village documents prepared from April to June 2005.° The following evidence— which the People possessed prior to the hearing” but simply ignore now—proves that from April 28, 2005, until he absconded on June 9, 2005, Avitto resided at the Samaritan Village in-patient program in Jamaica, Queens: * On April 19, 2005, Leila Percival, Avitto’s EAC counselor prepared an Escort Request Form that documented on April 28 Avitto was scheduled to be released from jail for transport to “Samaritan Village, Van Wyck,” located at 88-83 Van Wyck Expressway, Jamaica, Queens. * On April 28, 2005, Avitto was released from custody “for a bed at Samaritan Village Residential Treatment.” Avitto Transcript, April 28, 2005. * On April 28, 2005, Ms. Percival prepared an EAC Link Intake Memo which documented that Avitto made intake at Samaritan Village that same day. © All of these documents are in evidence. Copies of EAC and Samaritan Village documents are annexed hereto for the Court's convenience. ” The Conviction Review Unit (“CRU”) possessed all of the evidence that demonstrated the inaccuracy of the detectives" testimony. Their dismissal of this credible evidence in favor of reaching their desired conclusion that Avitto did not have a motive to seek a benefit when he contacted law enforcement, severely undermines the credibility of that review. During the review, Avitto was treated like an eventual defense witness at a 440.10 hearing. He was sworn and his testimony was recorded and transcribed, Ms. Nicolazzi and other witnesses biased in favor of the ‘CRU’s denial of Giuca’s Petition were not subjected to similar treatment. Hg. 341, 421-24. Nor did the CRU question Ms, Nicolazzi about Avitto’s EAC records or other documents that exposed the falsity of Avitto’s trial testimony. Hg. 424, 7On May 20, 2005, EAC supervisor Ruth O’Sullivan wrote Kenneth Blauner of Samaritan Village, requesting permission for Avitto to temporarily leave the facility to attend to a personal matter in Florida. On June 8, 2005, Mr. Blauner faxed a letter to Ms. Percival for filing in court the following day. The fax cover sheet contained Samaritan Village’s Jamaica address. Mr. Blauner’s fax indicated it was from “Samaritan-Van Wyck.” The June 9 letter was written. on Samaritan Village letterhead. Avitto’s D.O.E. (date of entry) was listed as April 28, 2005. The letter stated in pertinent part: “Please accept this letter as an update for Mr. Avitto [who] is a resident of Samaritan Village Residential Treatment Services at our Van Wyck facility located at 88-83 Van Wyck Expressway, Jamaica, NY 11435.” On June 10, 2005, Ms. Percival documented that she received a voicemail from “Blauner/Samaritan” stating that Avitto left the program on June 9 at 5:25 p.m. On June 10, 2005, Sean Ryan appeared in court and notified Judge Parker that EAC received a call from Samaritan Village on June 9 reporting that Avitto absconded from the program. Avitto Transcript, June 10, 2005. On June 10, 2005, EAC filed a Violation of Conditions Notification with the court. It stated in pertinent part: “On April 28, 2005, the defendant entered residential treatment at Samaritan Village. On June 9, 2005, the defendant’s counselor at Samaritan Village called EAC Link to inform the agency that the defendant left the program without permission. On the morning of June 10, 2005, the defendant’s EAC case manager contacted the Assistant Director of Samaritan Village and was informed that the defendant had not returned to the program.”* On June 13, 2005, Sean Ryan documented his courtroom conversation with Ms. Nicolazzi, who was present in order to stand up on Avitto’s return on warrant. In pertinent part, Ryan wrote “[Ryan] met with [Ms. Nicolazzi] who explained that [Avitto] had contacted detectives on Thur. 6/9/05 stating he had information on a present murder [case]” (emphasis added). * On September 22, 2005, at the conclusion of Avitto’s trial testimony, Giuca’s trial counsel made a specific request for Rosario material. Counsel specifically referenced Avitto’s contacts with the police. Ms. Nicolazzi stated that no Rosario material existed from Avitto’s meeting with the police, noting that “I was present for all those interviews, there was never anything documented, there was never any notes taken.” She stated that Avitto contacted the police on his own. Tr. 815 (emphasis added). Ms. Nicolazzi’s June 13 and September 22, 2005 statements are significant. On June 13, she told Ryan that Avitto “contacted” (not “met with”) detectives with information on a murder case. Ryan’s contemporaneous note even accurately noted that June 9, 2005 was a Thursday. Ms. Nicolazzi admitted that on June 13 she told Ryan that Avitto had provided information on her homicide case. Hg. 505-07, 512. Ms. Nicolazzi’s September 22, 2005, statement was made only three months after she met Avitto. She emphatically declared to Justice Marrus that she knew there was no Rosario material associated with Avitto’s meetings with the detectives because she was present “for all those interviews.” Tr. 815. Ms. Nicolazzi first metAvitto on June 13, 2005. Hg. 458-59. Detectives Byrnes and McCafferty testified that Ms. Nicolazzi was not present when they met Avitto before June 9. Hg. 322, 770. Thus, one of the following two circumstances, neither of which is good for the People, must be true. If the Court credits Ms. Nicolazzi’s September 22, 2005, statement, the detectives’ testimony that they met Avitto before June 13, 2005, cannot be true. Alternatively, if the Court credits the detectives’ testimony, it must conclude that Ms. Nicolazzi lied to Justice Marrus when she claimed she was present at each meeting with Avitto. B. Ryan’s June 13, 2005 Avitto Progress Note The People distort Sean Ryan’s June 13 entry that detailed his conversation with Ms. Nicolazzi and statements she made in his presence at the bench in a futile attempt to discredit powerful evidence that she sought Avitto’s release on his own. recognizance after she told the court Avitto provided information against Giuca. According to the People, the note is unreliable because before Ryan documented that Ms. Nicolazzi sought Avitto’s release, he first wrote that she did not want Avitto released on his own recognizance.* See People’s Memo pp. 56-57. "The People’s implication that Ryan's testimony was necessary to contradict Ms. Nicolazzi’s claim that she did not ask the court to release Avitta is disingenuous. See People's Memo p. 57. The People know that Ryan resides in ‘Texas and that he refused to make himself available to testify. They also know that he claims to have no recollection ‘of his dealings with Avitto. If anything, the People should have called Ryan to prove their “typo defense” regarding the September 19 and 20 letters, See People’s Memo pp. 83-85. We assume the People did not call Ryan because he ‘would have confirmed his progress notes were contemporaneous entries that accurately documented events shortly after they occurred, 10At worst, this claim is misleading. At best, it is tortured reasoning. The complete June 13 note reads as follows: [Ryan] was called into Part 30 to stand on [Avitto’s] case. Ryan met with [Ms. Nicolazzi] who explained that Avitto had contacted detectives on Thur. 6/9/05 stating he had information on a present murder [case]. Ms. Nicolazzi explained she met with Avitto early today and wanted to see the possibility of other [treatment] programs and not having Avitto ROR. Ryan explained that placement would take time. Ryan then stood in front of Judge Parker and approached. Ms. Nicolazzi explained that they wanted to have Avitto stay with his mother and report to TADD” and Avitto’s attorney agreed. Honorable Judge Parker found this acceptable and set [adjournment] date for 6/21/05'° to get an update for TADD’s progress. Ryan then had Avitto return to EAC [illegible] with him were to be explained to Avitto process of referring and that Avitto would have to report weekly to EAC for toxicologies and [face to face meetings]. Ryan told Avitto to come to the office on 6/14/05 (emphasis added). Ryan’s entry sensibly explained that Ms. Nicolazzi sought Avitto’s release after Ryan told her that he did not have a program available for Avitto (“placement would take time”). At that point, Ms. Nicolazzi’s options were to seek remand, bail or release on his own recognizance. Ms. Nicolazzi’s choice spoke volumes: she told the court that Avitto provided information against Giuca before she requested °TADD (Treatment Alternatives for the Duly Diagnosed) is for people suffering from both serious mental illness and drug addiction. "© Avitto was violated on June 16 because he repeatedly lied to EAC about his drug use, A violation report was filed and Avitto was released without the People seeking bail on June 17. MWrelease for a career criminal with a long history of warrants and parole and probation violations. C. Ms. Nicolazzi’s June 13, 2005 Comments to Avitto The People minimize comments Ms. Nicolazzi made to Avitto on the way to court. She told him she would tell the judge “what you said” but that she was unsure whether that would lead to his release. Hg. 511. The People allege she meant only that she would advise the court that Avitto left his program because he needed better mental health treatment for childhood sexual abuse. See People’s Memo. p. 75. Even if the Court credits this interpretation, it still constituted consideration because Avitto benefited from Ms. Nicolazzi’s sympathetic presentation of him as a possible witness against Giuca who absconded from his program because he wasn’t getting proper mental health treatment as the result of a terrible crime committed against him. If Ms. Nicolazzi did not intend to benefit Avitto by tilting the scales towards his release, why did she appear personally to notify the court about her meeting with him? She first explained that she accompanied Avitto to court because she could not let a fugitive leave her office on his own. But she gave a nonsensical answer when asked why she had to go since a detective was with Avitto and another prosecutor was in court. Hg. 501-02. Her presence with Avitto contradicted her testimony that she “never kept track of his court dates.” Hg. 572. Finally, Ms. 12Nicolazzi’s concealment of her appearance undermines the People’s sanitized interpretation of her comments to Avitto. Tr. 812. D. DA and EAC Correspondence and Notes from June 14 to 17, 2005 The People argue that the documents between and among the DA’s Office and EAC discussing Avitto’s cooperation and poor performance in his program demonstrate the prosecution’s lack of interest in influencing Avitto’s case. See People’s Memo pp. 73-74. The People miss the point entirely; in addition to substantially corroborating the June 13 Giglio violation, these documents constituted favorable impeachment evidence in their own right. As they did during the hearing, the People urge the Court to resolve factual questions about Avitto’s credibility in their favor, when the proper forum for this exercise was in front of Giuca’s jury in 2005. See Post-Hearing Memo p. 45, n. 16. The jury had a right to know that on the moming of June 14, 2005, Avitto’s mundane, post-plea burglary case grabbed the personal attention of Anne Swern, who was Counsel to District Attorney Hynes and one of the highest-ranking prosecutors in Brooklyn. She instructed Ms. Nicolazzi (but notably not Avitto’s burglary case prosecutor) and other high-ranking prosecutors and EAC employees to mark Avitto for “special attention.” If the jury had known that Avitto—described by Ms. Nicolazzi as an honest man succeeding in drug treatment and trying “to do 13the right thing”—for the first time was the subject of great interest at the highest level of the DA’s Office less than 24 hours after Ms. Nicolazzi helped secure his release, the jury might have concluded there was much more to Avitto’s relationship with the People beyond “keeping track of Avitto’s whereabouts and developments in his case.” See People’s Memo pp. 73- 74; Tr. 1022-23. Even more damning than Ms, Swern’s “special attention” directive was the People’s suppression of David Kelly’s June 16, 2005, notes and Ryan’s June 17 progress note. Three days after Avitto met Ms. Nicolazzi and one day after he failed a drug test and lied about it, Mr. Kelly documented EAC’s concern about Avitto’s continued non-compliance shortly after he “turned himself into the DA’s Office and he has info on a murder case and he was not remanded” (emphasis added). This note contradicted Avitto’s testimony and Ms. Nicolazzi’s false premise that there as “no evidence” that Avitto was “making this up and willing to say anything because he’s trying to help himself.” Tr. 785-86, 1020. The next day, Ryan detailed EAC Director Lauren D’Isselt’s ominous warning to Avitto that EAC would notify Ms. Nicolazzi (and her Fisher co-counsel, but not Avitto’s burglary case prosecutor) about his non-compliance and that “EAC had the full support” of Ms. Nicolazzi in how they handled his poor program performance. This note also corroborated the defense claim that Avitto’s cooperation against Giuca was inextricably interwoven with his own legal problems. 14POINT IV CREDITING THE PEOPLE’S ARGUMENT THAT THERE WERE NO GIGLIO VIOLATIONS IN CONNECTION WITH MS. NICOLAZZI’S INTERVENTION INTO AVITTO’S CASE REQUIRES THE COURT TO “OVERRULE” THE COURT OF APPEALS Nowhere in their 89-page brief do the People even attempt to distinguish controlling Court of Appeals precedent that conclusively establishes that Ms. Nicolazzi’s intervention into Avitto’s case required disclosure to the defense. We assume the People ignore People v. Taylor, 26 N.Y.3d 217 (2015) and People v. Cwikla, 46 N.Y.2d 434 (1979) because there is no possible way to distinguish them from the present facts. In Taylor, Hilton immediately cooperated against Taylor after the latter was arrested for murder. Hilton was on probation at the time, but he was compliant and not in trouble when he cooperated. Jd. at 220. He was arrested a few months later, which resulted in a violation of probation specification. Id. At Hilton’s probation violation hearing, Taylor’s prosecutor appeared for the prosecution. She did not request bail and Hilton was released. /d. The Queens prosecutor disclosed her appearance at Hilton’s probation violation hearing to Taylor's defense. /d. at 221. At Taylor’s trial, Hilton was cross- examined about the trial prosecutor’s presence at his probation hearing. The parties argued contrary positions about its significance in summation. Jd.During deliberations, the jury requested to see “the benefits offered Mr. Hilton and Mr. Turner (another witness).” Taylor, 26 N.Y.3d at 222. The court provided the jury with the evidence of Turner’s benefits, but the court did not provide the jury with readback of Hilton’s testimony about the homicide prosecutor’s intervention into his violation hearing. Id. at 222-23. The Court of Appeals unanimously'' reversed Taylor’s murder conviction because the homicide prosecutor's actions at Hilton’s court appearance demonstrated that he benefited from his cooperation, which meant the jury was entitled to consider that evidence in response to its request to see “the benefits” the witnesses were offered. Id, at 225-27. The prosecutor’s intervention into Hilton’s case was evidence that “the trial prosecutor had helped Hilton to win pre-trial release in another case” and testimony that “suggested Hilton had a motive to testify falsely in favor of the prosecution at defendant’s trial out of gratitude for the prosecutor’s aid.” Id. at 226. This was true even though Hilton cooperated immediately and before he was in trouble. Cf People’s Memo pp. 54, 71-73 (arguing that if Avitto cooperated before he was in legal peril there was no evidence he sought or received a benefit). Taylor’s conviction was reversed even though the prosecutor disclosed her involvement in Hilton’s case and the jury heard evidence and argument about it. The "A concurring opinion addressed matters unrelated to the question of benefits.Court held that the trial court’s failure to respond properly to the jury’s request severely prejudiced Taylor because it suggested to the jury the court’s opinion that the prosecutor’: intervention into Hilton’s case was not a benefit. Taylor, 26 N.Y.3d at 227. The facts here demonstrate far more prejudice to Giuca than the circumstances that required reversal in Taylor. Unlike Hilton, Avitto waited several months and until he was in legal peril before he decided, according to Ms. Nicolazzi, “for once... to do something right.” Tr. 1022. At the time the homicide prosecutors’ intervened in Hilton’s and Avitto’s cases, their circumstances were virtually identical: both had helped the prosecution before they faced imminent exposure, but neither prosecutor sought bail. Ms. Nicolazzi made sure Giuca’s jury heard nothing about her intervention into Avitto’s case. She ignored specific and detailed demands for the evidence. She elicited misleading testimony that concealed her appearance. In Kafkaesque fashion, she denied the existence of the evidence and then ridiculed the defense for its failure to produce what she withheld. Tr. 1020-23. Thus, the prejudice Ms. Nicolazzi caused Giuca was worse than that suffered by Taylor because unlike Giuca’s jury, Taylor’s jury heard evidence about the benefits, Ms. Nicolazzi’s emphatic and misleading statements to the jury that there was “no evidence” of benefits notwithstanding her appearance on Avitto’s case is 17precisely why the Court of Appeals reversed Taylor’s murder conviction. 26 N.Y.3d at 227. Finally, unlike Hilton’s one-time benefit, Ms. Nicolazzi’s June 13 revelation that Avitto provided information against Giuca benefited him on two other undisclosed occasions after he violated his program. See Post-Hearing Memo pp. 47-48. Taylor unequivocally confirmed what the Court of Appeals had already established in People v. Colon, 13 N.Y.3d 343 (2009). There, Vera testified at Colon’s murder trial that he did not receive any benefits in connection with a prior drug case. Id. at 347. However, among other things, Colon’s homicide prosecutor had appeared at a regularly scheduled calendar call and conveyed a pre-approved plea offer to him. Jd. at 349. The Court unanimously reversed Colon’s conviction because Vera testified inaccurately about benefits he received, including that “the prosecutor personally appeared on (his case) to convey the plea offer...” Id The Court criticized the prosecutor for violating her duty of candor to the court by eliciting false testimony regarding “the benefits extended” and then “exacerbating” the prejudice by vouching for the false testimony in summation. /d. at 349-50. Like Taylor, the Court’s criticism of the Manhattan prosecutor in Colon applies to Ms. Nicolazzi’s trial conduct here. The People feebly dismiss Colon because “no such conduct occurred in this case.” See People’s Memo p. 76. 18Apparently, they choose to ignore the Court’s emphasis on a prosecutor's responsibility to “deal fairly with the accused” and its unanimous reversal of a murder conviction because the homicide prosecutor’s non-disclosure of her appearance on Vera’s case was a benefit that obligated her to correct Vera’s inaccurate testimony instead of “compounding these errors by repeating and emphasizing the misinformation during summation.” Colon, 13 N.Y.3d at 349. Notwithstanding Taylor and Colon, the People stubbornly maintain that there was no Giglio violation because Ms. Nicolazzi did not consider Avitto a cooperating witness on June 13, 2005. See People’s Memo pp. 57, 73-76. They ignore the Court of Appeals’ unanimous decision in People v. Cwikla, 46 N.Y.2d 434 (1979), which held that a jury is entitled to favorable impeachment evidence that objectively supports the existence of a strong inference that a witness sought or received benefits in exchange for his cooperation, even if the witness denies it. Id. at 441-42. “[Mlisleading and obstructive tactics” serve as persuasive evidence of the existence of such an inference. Jd. at 442. The timing and circumstances of Avitto’s cooperation, Ms. Nicolazzi’s role in it, documentary corroboration and Ms. Nicolazzi’s concealment of it easily gave rise to a strong inference that required disclosure. See Post-Hearing Memo pp. 54-57. Thus, Ms. Nicolazzi’s personal opinion is irrelevant; the issue is whether her use of discretion in Avitto’s favor reasonably could be interpreted as evidence that 19he sought, expected or received a benefit. See also, People v. Novoa, 70 N.¥.2d 490, 497 (1987). Rather than confront this insurmountable controlling authority, the People urge the Court to sidestep the Court of Appeals and deny Giuca’s claim under Shabazz v. Artuz, 336 F.3d 154 (2" Cir. 2003), an inapposite and non-binding case that they allege bears “similarities” to the current case. See People’s Memo pp. 58- 61. However, the People cherry-picked the case’s facts, the complete understanding of which demonstrates the stark differences between the witnesses in that case and Avitto. In Shabazz, witnesses Landers and Pullum identified Shabazz in a lineup one day after he was arrested for murder. Neither witness had been arrested or was in any legal trouble at that time. Shabazz, 336 F.3d at 156. Thus, they immediately cooperated with law enforcement at a time when they had no reason to seek a benefit in exchange for their cooperation. Approximately one month later, Landers and Pullum were arrested for unrelated narcotics offenses. Jd. Although both witnesses already were cooperating against Shabazz, the People recommended prison sentences, sought bail, and later opposed a reduction in bail when it was eventually set. /d. at 156, 164. Unlike Ms. Nicolazzi on June 13, 2005, Shabazz’s prosecutor did not appear on behalf of 20Landers and Pullum, escorting them to court to notify the judge about their status before seeking their release. Prior to Shabazz’s trial, Landers and Pullum violated the conditions of their release and were jailed. Jd. at 156-57. The People did not attempt to secure their release in anticipation of their upcoming testimony. Both were incarcerated when they testified against Shabazz. Id. at 157. After Shabazz’s trial, the People recommended that Landers and Pullum be released from custody. /d. Both soon pleaded guilty and Shabazz’s prosecutor was involved in the sentencing recommendations for both. Id. At Shabazz’s 440.10 hearing, the homicide prosecutor testified that he “might” have made favorable sentencing recommendations for Landers and Pullum as a reward for their truthful testimony. /d. at 158 (emphasis added). The Second Circuit did not disturb the state court’s denial of Shabazz’s 440.10 motion because he failed to establish that Landers or Pullum had been afforded any favorable treatment in exchange for their testimony. Jd. at 165. Significantly, the prosecution’s opposition to bail, their argument against the lowering of bail, and their lack of intervention to keep the witnesses out of jail when they were arrested but before they testified was compelling evidence that there was no arrangement between the prosecution and witnesses. Jd. Instead, the court found that the witnesses were “rewarded” for their cooperation afier the trial. Id. 2Unlike Landers and Pullum, Avitto waited months and until he was in legal peril before he volunteered to cooperate. In contrast to Landers and Pullum, Avitto, already a career criminal facing years in prison, was released without bail with Ms. Nicolazzi’s assistance immediately after he provided her with information against Giuca. When Landers and Pullum got into trouble as cooperating witnesses, they were jailed; when Avitto got into trouble after June 13 and before he testified, he was released without bail every time after his status as a cooperating witness was brought to the court’s attention, Landers and Pullum were “rewarded” after the fact for their cooperation; Avitto received an immediate benefit from Ms. Nicolazzi immediately after he helped her, before he testified, and while a lengthy prison sentence was hanging over his head. ‘The People claim that Ms. Nicolazzi’s concealment of her intervention in Avitto’s case was not material because evidence of it at trial would have opened the door to the fact that Avitto had started cooperating before he was in legal peril. This is preposterous.'? See People’s Memo pp. 73-74. As detailed earlier, Avitto contacted the police on June 9, 2005, and he first met Ms. Nicolazzi on June 13, immediately before she appeared on his case. Ms. Nicolazzi’s trial strategy undermines the People’s point. She raised Avitto’s ” Evidence of Ms. Nicolazzis appearance likely would have made her a witness and required her disqualification See People v. Paperno, S4N.Y.24 294 (1981); Post-Hearing Memo p. 92 n. 26. 2credibility during his direct examination in order to lessen the impact of an anticipated defense attack on it. Tr. 785-86. She led Avitto to agree with her that he first spoke with the police “sometime back in June of 2005.” She elicited from him the amount of times he met with herself and detectives. Tr. 785. On re-direct, Ms. Nicolazzi’s suggestive question prompted Avitto to say that his June 13 return to court involved nothing more than calling Ryan. Tr. 811-12, 1020-21. Her final “question” to Avitto pushed him to agree with her statement that he first spoke with the police months after he pleaded guilty and entered a drug program. Tr. 814. In other words, Ms. Nicolazzi introduced evidence that Avitto was doing well in his program when he contacted the police. But she did not ask Avitto when or where he met detectives. If Ms. Nicolazzi possessed evidence that Avitto met with detectives at his drug program before he absconded, she would not have left this evidence on the table. There was no reason for her to wait for counsel to introduce evidence that she appeared in court with Avitto on June 13 before she “proved” that Avitto met with detectives before his June 9 violation. In any event, counsel did open the door when he questioned Detective McCafferty about his meetings with Avitto. Tr. 882-83. But Ms. Nicolazzi did not ask the detective when and where those meetings occurred. The People claim that evidence of Ms. Nicolazzi’s intervention into Avitto’s case was not material because Avitto was extensively cross-examined with other 23evidence. See People’s Memo pp. 61-62. However, evidence of a witness’ specific bias in favor of the prosecution is a significant topic for cross examination. See Davis y. Alaska, 415 U.S. 308, 316-18 (1974); Napue v. Illinois, 360 U.S. 264, 269 (1959) (“the jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of a witness in testifying falsely that a defendant's life or liberty may depend”) (emphasis added); Taylor, 26 N.Y.3d at 226-27 (evidence of benefits have “an especially strong bearing on the witness’ credibility); Colon, 13 N.Y.3d at 350 (“By their very nature, benefits conferred on a witness by a prosecutor provide a basis for the jury to question the veracity of a witness on the theory that the witness may be biased in favor of the People. For this reason, it is important that witnesses provide truthful testimony when questioned about the receipt of such benefits, and the People must be vigilant to avoid misleading the court or jury”); see also Post- Hearing Memo pp. 43-44, 67. The fact that Avitto ultimately served the conditional prison sentence is a red herring. See People’s Memo p. 58. The Giglio issue turns on whether the People suppressed favorable impeachment evidence that might have established Avitto sought, expected or received a benefit in exchange for his testimony, not whether Ms. Nicolazzi promised him a “deal.” Taylor and Colon were reversed on grounds that are identical to Ms. Nicolazzi’s conduct here: the non-disclosure of undisclosed 24benefits related to a prosecutor’s appearance at a court appearance, not because a “deal” had been promised to the witness in exchange for testimony. POINT V THE PEOPLE IGNORED COUNSEL’S SPECIFIC REQUEST FOR FAVORABLE IMPEACHMENT EVIDENCE CONTAINED WITHIN AVITTO’S EAC RECORDS The Court should not ignore the disturbing fact that although the undisclosed EAC records prove that Avitto was a dishonest and manipulative witness who was willing to do or say whatever was necessary to help himself, Ms. Nicolazzi told the jury that Avitto was “very honest about his problems and criminal past. He freely admitted things that he clearly isn’t proud of and that goes to his credibility...” Tr. 1011. Without more, the jury’s ignorance of the hidden truth within the EAC records—including Avitto’s admission that he “did what he had to do” to get out of jail—destroys the integrity of the verdict. The People argue that Ms. Nicolazzi had no obligation to seek the EAC records and that the defense had no reason to believe that she had them. See People’s Memo pp. 62-63. Of course trial counsel had no reason to believe the People had such records—his specific Giglio demands were met with Ms. Nicolazzi’s denials that any such evidence existed. Counsel properly relied on these representations. See Banks v. Dretke, 540 U.S. 668 (2004); Strickler v. Greene, 527 U.S. 289 (1999); People v. Qualls, 70 N.Y .2d 863, 865 (1987). 25‘The evidence at the hearing established that the People were aware of Avitto’s mental health problems and his poor performance in his TADD program. See Post- Hearing Memo pp. 58-69. Ms. Nicolazzi’s damning admission that she “never kept track of Avitto’s court dates” demonstrated her blissful ignorance of Avitto’s substantial credibility problems.'? Hg. 572. This was a remarkable statement from a senior homicide prosecutor who knew that her witness was a drug addict and career criminal who told her that he had mental health problems and who frequently violated the conditions of his release. See Post-Hearing Memo pp. 60-68. A reasonable prosecutor in Ms. Nicolazzi’s shoes would have monitored Avitto’s problems and court appearances in contemplation of her Giglio obligations. The People focus too narrowly on the psychiatric records contained within the EAC records. Ms. Nicolazzi and others in her office knew that Avitto was performing poorly in his EAC supervised drug program. The defense’s specific demand for drug program records and the People’s actual knowledge of Avitto’s dreadful performance triggered a Giglio obligation to review the records. Had they done so, they would have discovered an abundance of impeachment evidence that Ms. Nicolazzi conceded was favorable to the defense. Hg. 413-14, 423, 467, 538, 585, 592, 594, 596-98, 601-02, 606, 611, 615-16. "© The People's claim that the Court's inspection of Avitto's file did not locate Giglio material is inaccurate. See People's Memo p. 65. The Court ordered disclosure of a post June 13, 2005 court calendar from Judge Parker's part that contained the handwritten note “John Avitto someone took for ADA Nicolazzi in homicide.” 26The People’s claim that Avitto’s EAC records were not material is surreal. See People’s Memo p. 68. The records are overflowing with proof of Avitto’s perjury, his willingness to lie to help himself, and they document evidence of his serious and persistent mental illness. They contradict virtually everything Ms. Nicolazzi said about him in her summation. See Post-Hearing Memo pp. 16-21. The People’s claim that the records belie any actual evidence of Avitto’s mental illness is ironic because in making that point they concede that the records prove that Avitto lied about his mental illness in order to benefit himself. Evidence of Avitto’s willingness to lie to benefit himself would have been more favorable to the defense than evidence of his mental illness. See People’s Memo p. 64. POINT VI THE PEOPLE KNEW OR SHOULD HAVE KNOWN THAT AVITTO TESTIFIED INACCURATELY ABOUT HIS JUNE 13, 2005 RETURN TO COURT It is profoundly disappointing that amid a nationwide wrongful conviction crisis that has its epicenter in Brooklyn because of a shocking pattern of unconstitutional behavior that occurred during the Hynes administration, the District Attorney’s Office continues to tolerate Avitto’s blatantly false and misleading testimony and acquiesces to Ms. Nicolazzi’s callous indifference to Giuca’s right to due process. See People’s Memo p. 70. 27The People defend Ms. Nicolazzi’s cringe worthy testimony" that the jury ‘was not entitled to know that she was “the DA” in court with Avitto immediately after he provided her with information against Giuca or that she notified Judge Parker about Avitto’s assistance against Giuca before he was released, by cutting and pasting facts from Sean Ryan’s progress notes. Hg. 666-78, 683, 686, 688, 697. They argue that Avitto’s June 10 call to Ryan, who advised Avitto to appear in court on June 13, demonstrated that Avitto testified “accurately” when he said Ryan got him “another shot” because he (Ryan) told the court that placement in a program would be easier if Avitto was not remanded. See People’s Memo pp. 70-71. There are no words for the People’s explanation. Like Ms. Nicolazzi did at trial, they omit the important events that occurred between June 9 to June 13, including evidence of Avitto’s desire to cooperate against Giuca and the role Ms. Nicolazzi played in his cooperation and return to court. Avitto did call Ryan on June 10, but he called the police the day before seeking to cooperate against Giuca, Ryan did tell Avitto to go to court on June 13, but Avitto went to Ms. Nicolazzi’s office in order to offer information against Giuca before going to court with her. In sum, Avitto’s trial testimony about his June 13 return to court in response to Ms. Nicolazzi’s leading, closed-universe question which asked him if it resulted ™ Ms, Nicolazz's lack of appreciation for her duty of candor is particularly disturbing because as the DA’s Chief of Homicide Trials, she counsels less experienced homicide prosecutors, many of whom observed her testify at the hearing. Hg. 406, 666-68, 673-75, 679, 683, 686, 697. 28from being picked up by the warrant squad or contacting Ryan was as follows: Avitto contacted Ryan on his own and went to Ryan’s office before he and Ryan walked over to court where Judge Parker spoke to Ryan and “the DA.” Avitto said that Ryan got him “another shot.” Tr. 812. Ms. Nicolazzi had actual knowledge of the following facts before Avitto testified, but the jury heard none of them: * Avitto called the police seeking to cooperate on June 9, the same day he absconded from his program. Ms. Nicolazzi knew this because she was the one who told Ryan on June 13. Yet she only asked Avitto if he started cooperating “sometime in June.” Tr. 785. * On June 13, Avitto met with Ms. Nicolazzi and provided information against Giuca. * After this meeting, Ms. Nicolazzi escorted Avitto to court. On the way she told Avitto he might be remanded, but that she would advise the court about what he told her. * Ms. Nicolazzi stood on Avitto’s case, approached the bench and told Judge Parker that Avitto had provided information against Giuca before the court released him. While Ms. Nicolazzi actually was “the DA” as much as any of the other 500 plus prosecutors in her office, the concealment of her identity and Avitto’s description of the events of that day gave the jury the false impression that his return to court and release on his own recognizance was a routine and uneventful 29occurrence that involved nothing more than Avitto calling Ryan. In truth, Avitto’s court appearance was inextricably linked with his cooperation against Giuca, It was Ms. Nicolazzi, not Ryan, who was the impetus to Avitto’s release on June 13, In her summation, Ms. Nicolazzi told the jury that Avitto’s notification of Ryan demonstrated that he was “responsible” and this explained why the judge released him. She never told the jury about her role in Avitto’s release. Tr. 1020-21. Ms. Nicolazzi’s deliberate distortion of the evidence violated Giuca’s due process rights. Colon, 13 N.Y.3d at 349-50; People v. Vielman, 31 A.D.3d 674, 675 (2"™ Dept. 2006) (where a prosecutor knows her argument rests on a false premise or is a blatant attempt to mislead the jury she violates her responsibilities and the trust placed in her as a prosecutor); Jenkins v. Artuz, 294 F.3d 284, 294 (2" Cir. 2002) (due process is violated where technically accurate testimony is phrased to reinforce a false impression); see also, Post-Hearing Memo pp. 13-14, 78-79, 92-98. Although Giuca only must demonstrate that Ms. Nicolazzi should have known that Avitto testified inaccurately, her clarification that Justice Marrus was not the judge who released Avitto added another coat of whitewash to the events of June 13, evincing her intent to mislead the jury. Tr. 812. The only plausible reason to emphasize that Justice Marrus was not the judge who released Avitto was to make sure the jury knew that Avitto’s cooperation was unrelated to the Fisher case. To be sure, Avitto’s answer about Justice Marrus was truthful, but the question 30demonstrated Ms. Nicolazzi’s intent to separate Avitto’s release from an important figure in the Fisher case immediately after Avitto hid her identity from the jury. When questioned why she did not clarify that she was “the DA” who appeared on Avitto’s case but did emphasize that Justice Marrus was not the judge who released him, Ms. Nicolazzi incoherently rambled “I didn’t give a follow up question at the same question because I couldn’t—because it was me, but I could ask him specifically since he said the judge, that it wasn’t the judge that was presiding over the trial. That is why I did that.” Hg. 668. To the extent there is any blame for the jury’s ignorance about Ms. Nicolazzi’s presence in court on June 13, the People fault Giuca’s trial counsel. See People’s Memo p. 71. As stated earlier, Mr. Gregory relied on the good faith of Ms. Nicolazzi to discharge her disclosure obligations. She did not. That counsel was unclear if or how he would have used knowledge of Ms. Nicolazzi’s intervention in Avitto’s case because he was concemed with disparaging the prosecutor in front of the jury is irrelevant. See People’s Memo p. 62. The appropriate question is what a reasonable attorney in those circumstances would have done. ‘A reasonable attorney unquestionably would have exposed Ms. Nicolazzi’s involvement in securing Avitto’s release because it was in Giuca’s interest to present powerful evidence of Avitto’s motive to testify favorably for the People. Connecting the dots between Avitto’s June 9 violation and decision to call the police, and his 31June 13 meeting with Ms. Nicolazzi followed by her appearance on his behalf would have undermined Ms. Nicolazzi’s argument that Avitto testified out of human decency and demonstrated that his true purpose was to help himself. The Nicolazzi evidence also would have severely limited the influence of Ms. Nicolazzi’s pervasive vouching for Avitto’s credibility or possibly even prevented it altogether. Hg. 987-89, 996-97, 1004-06, 1008, 1010-13, 1017-23. When a prosecutor elicits inaccurate testimony and fails to correct it in the manner and circumstances Ms. Nicolazzi did here, reversal is “virtually automatic.” United States v. Wallach, 935 F.2d 445 (2™ Cir. 1991); see also, Colon, 13 N.Y.3d at 349; Novoa, 490 N.Y.2d at 497 (reversal required if inaccurate testimony is “in any way relevant”). PO! Vil THE PEOPLE’S WITHHOLDING OF EVIDENCE WAS MATERIAL UNDER THE REASONABLE POSSIBILITY STANDARD Under the reasonable possibility standard, failure to disclose Giglio material or to knowingly or recklessly use inaccurate testimony or make such argument is, “seldom, if ever” excusable. People v. Vilardi, 76 N.Y.2d 67, 76-77 (1990). Reversal is required if disclosure of the withheld evidence might have led to a different verdict. This low standard is satisfied if the withheld evidence “would have added a little more doubt to the jury’s view of the evidence and it is reasonably 32possible that a little more doubt would have been enough.” People v. Negron, 26 N.Y.3d 262, 271 (2015). The Court should disregard the People’s misleading claim that the Second Department previously found “overwhelming” proof of Giuca’s guilt. See People’s Memo p. 46; People v. Giuca, 58 A.D.3d 750, 751 (2" Dept. 2009). The Appellate Division properly applied the reasonable probability standard to claims that are not before the Court. Additionally, the Appellate Division did not consider the impact of the withheld Avitto evidence and misleading argument associated with it. Even where evidence of guilt is overwhelming (which is not the case here), there must not be any reasonable possibility that the error contributed to the conviction. People v. Harris, 93 A.D.3d 58, 71 (2 Dept. 2012). The People incorrectly state that the defense has argued that Avitto’s testimony was “essentially the only evidence against” Giuca. See People’s Memo p. 46. What we have said is the circumstances that led to Avitto testifying (Albert Cleary’s and Lauren Caleiano’s poor credibility), the substance of his testimony (he was the only witness who supported the theory that Giuca was an active participant in Fisher’s murder) and Ms. Nicolazzi’s heavy reliance on him in summation (she argued that Giuca’s admission to him was the only truthful one and that Russo could not have murdered Fisher alone) demonstrates that Avitto was the most important 33witness and if the jury had known the truth about his credibility the verdict might have been different. Ms. Nicolazzi did not decide to call Avitto as a witness unti] a few days before he testified, after Cleary and Calciano had testified. Hg. 525, 636-37, 649. Until Avitto testified, the People’s case consisted of Cleary and Calciano’s testimony that Giuca gave Russo a gun before Russo killed Fisher by himself. At the conclusion of Cleary and Calciano’s testimony, the People had not presented any evidence that Giuca was with Russo when Fisher was killed. However, Cleary and Calciano could not carry the case because of their serious credibility problems. Both were admitted liars—unlike Avitto, who the jury was told volunteered on his own to testify. Tr. 1022-23. Cleary and Calciano purported to hear Giuca confess together, but they contradicted each other on every detail except one—that Giuca gave Russo a gun’* before Russo killed Fisher by himself. See Post-Hearing Memo pp. 69-73. The best evidence of their unreliability is the undeniable fact that at least one of them committed perjury. See Post-Hearing Memo pp. 73-74. One can only imagine what the jury thought of Cleary and Calciano after learning that both lied for more than one year before they were pressured into cooperating against Giuca, the result of which was them contradicting each other about critical details of the "© Avitto testified that Russo “pulled the gun off of” Giuca while he was pistol-whipping Fisher. Tr. 775.