NY Court of Appeals Set to Eye Alleged Withholding of Evidence in Murder Trial of John Giuca


by Dan M. Clark
New York Law Journal (Online)

The state's highest court will hear arguments next week on whether John Giuca, a Brooklyn man convicted more than a decade ago of murdering a New Jersey college student, should be granted a new trial based on arguments that prosecutors withheld evidence.

Attorneys for Giuca argued in a brief to the state Court of Appeals that a key witness who testified against him at trial only did so to avoid incarceration for violating the terms of a drug treatment program.

Prosecutors have denied that any arrangement was made with that witness, John Avitto, and claim they had nothing to do with him coming forward before Giuca's trial. Avitto testified in court that Giuca admitted to being involved in the murder while they were both housed at Rikers Island, a jail in New York City. Giuca has denied that claim.

Mark Bederow, a Manhattan criminal defense attorney is representing Giuca before the Court of Appeals next week. He argued in his brief to the high court that Avitto has a history of lying and only offered to testify after violating the conditions of a drug treatment program, which could have landed him back in prison.

That wasn't disclosed to the defense and, consequently, the jury that convicted Giuca, Bederow argued, which he said could have changed the outcome of the trial.

"By depriving the defense of the information necessary to show Avitto's motive to lie, the People prevented the defense from making an effective showing that Avitto's steadfast denial that his legal status had anything to do with testifying against Giuca was false, that his denial of a motive to lie was false, and that therefore his overall testimony should be discredited," Bederow wrote in his brief to the Court of Appeals.

The case was further complicated in 2015 when Avitto recanted his testimony linking Giuca to the murder. Two other witnesses that testified against Giuca at trial have also recanted their testimony.

Avitto, Bederow argued, only testified to avoid spending up to seven years in prison on burglary charges, which he had pleaded guilty to several months earlier. Avitto had struck a deal with prosecutors at the time to avoid prison by completing a drug treatment program.

Less than two months after entering that program, which was scheduled to last up to two years, Avitto left the residential facility and used cocaine. He then reached out to detectives to offer his testimony against Giuca, according to Bederow. A few days later, Avitto met with prosecutors and detectives to discuss what he could offer to the case against Giuca.

Bederow claimed former Assistant District Attorney Anna-Sigga Nicolazzi, who was prosecuting Giuca's case, then went with Avitto to a court appearance since a warrant had been issued for his arrest at that point. Avitto was allowed to stay in the drug treatment program rather than be sent to prison over the violation. He testified against Giuca a few months later.

Avitto has also displayed a history of dishonesty, Bederow said in his brief. When he was arrested in 2004, Avitto told doctors that he was suicidal and requested to be transferred to a hospital, rather than general population in jail. But after counselors couldn't find him an inpatient program because of his psychiatric history, Avitto told them he had lied about being suicidal so he could be placed in better housing, Bederow wrote.

Prosecutors from the Brooklyn District Attorney's Office argued in their own brief to the high court that Nicolazzi didn't disclose Avitto's background or the timeline of his testimony in relation to the drug treatment program violation because there was never a deal made to keep him out of prison if he appeared at Giuca's trial.

"There was no agreement with the witness that he would receive a benefit for his testimony, and the prosecutor was not required to disclose information that a defense attorney might have been able to use to suggest, falsely, that such an agreement existed," prosecutors wrote in the brief.

Avitto, they argued, even testified at trial that he wasn't getting anything in return for his testimony. If an agreement had been made, prosecutors argued, they would have disclosed it. But Nicolazzi hadn't made such a deal, tacit or otherwise, they wrote.

The Appellate Division, Second Department sided with Giuca in a decision last year that overturned his conviction before prosecutors appealed to the high court. The panel argued that, even if a deal hadn't been made between Avitto and prosecutors, the circumstances of his testimony still should have been disclosed at trial.

"Giving proper deference to the credibility findings of the hearing court, we nevertheless find that the nondisclosure of this evidence by the prosecution, even if it was as a result of negligence and not by design, created a reasonable possibility that the prosecution's errors affected the jury's verdict," the appellate court said.

The Court of Appeals will be tasked with deciding whether Giuca should be granted a new trial, which would be disadvantageous to prosecutors, or side with the trial court and uphold his conviction.

Arguments on the case are scheduled for Tuesday afternoon at the Court of Appeals in Albany. A decision will likely be handed down by the court in June.