SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CRIMINAL TERM, PART 19 ‘THE PEOPLE OF THE STATE OF NEW YORK AFEIRWATION IN OpPOsTT ION FO MOTION TO Vacars -against- SUDGMENT oun Gruca, Kings County Indictment Number Defendant. ereeyeoce DIANE R. EISNER, an attorney admitted to practice in the State of New York and an Assistant District Attorney in the County of Kings, affirms the following to be true under the penalties of perjur: 1. I submit this affirmation in opposition to defendant’ s second motion pursuant to C.P.b. § 440.10, dated March 26, 2015, seeking an order vacating the October 19, 2008 judgment of this court, convicting defendant, after @ jury trial, of one count each of Murder in the Second Degree (P-L. § 125.25(3]), Robbery in the First Degree (P-L. § 160.15[2]), and Criminal fossession of a Weapon in the Second Degree (P.tu. § 265.03(1](b]), and sentencing him to an aggregate term of imprisonment of twenty-five years to lite. I make the statements in this affirmation upon information and belief, based upon my examination of the files andrecords of the Kings County District attornay’s Office, sncluding the transcript of defendant’s trial, and upon the affirmation of Assistant District Attorney Anna-Sigga Nicolazsi. 3. Befendant’s motion alleges violations of the People’s disclosure obligation under Brady v. Maryland, 373 U.S. 93 (1963), and Giglio v. United States, 405 U.S. 180 (1972), based on the prosecution's alleged failure to reveal alleged conduct by the prosecutor on behalf of prosecution witness John Avitto. Defendant also alleges additional acts of misconduct by the prosecution, including the alleged elicitation of perjured testimony from Avitto, and the alleged preparation of a false document that defendant clains was created in order to be provided to the defense at trial -- which document defendant contends was created in order to minimize the impeachnent of Avitto at trial. Defendant further contends that the false document was provided to the defense in place of a different document, that was allegedly withheld in violation of People v. Rosario, 9 N.¥.2d 286 (196), which document allegedly would have provided more grist for Avitto’s cross-examination. All of defendant's allegations of misconduct are disputed by A.D.A, Micolazzi in her affirmation, annexed hereto as People’s Exhibit A.4, This case involves the murder of aineteen-year-old Mark Fisher, a Fairfield University student, who was shot multiple times at about 6:40 a.m. on October 12, 2003. Shots were heard at that time in the vicinity of 150 Argyle Road in Brooklyn, the police were called, and Mark Fisher's bedy was found on the ground at that location with a blanket around his feet that was subsequently determined to have come from defendant's home." 5. The lengthy investigation into Fisher's murder revealed ‘that a group of young people, including Fisher, had gone to defendant's home on the night/early morning of October 11 to october 12, 2003, after having been out drinking in bars and socializing in Manhattan. Merideth Denihan, Albert Cleary, and Angel DiPietro, witnesses at trial, explained how the group of young people wound up there. Denihan and DiPietro, friends from Long Island and college students who were hone for the Columbus Day weekend, had missed the last night train back to Long Island, and Mark Fisher, a classmate of DiPietro’s at Fairfield A detailed statement of the evidence at trial, including citations to the pages of the trial transcript at which the described testimony appears, is included in the Respondent’s Brief to the Appellate Division on defendant's direct appeal. A copy of that brief is being submitted with this response as People’s Exhibit B. The moze summary description of the trial evidence contained in this affirmation does not include citations to the transcript.University, who had met and become friendly with Denthan at the bar, had becone separated from the group of friends with whom he had gone to Manhattan. Cleary, a friend of DiPietro’s boyfriend who had arranged to meet DiPietro and her group of girlfriends in Manhattan that night, had introduced the group to his friend, defendant, who had also arranged to meet Cleary in Manhattan that night. After DiPietro, Denihan, and Fisher realized that they could not get hone that night, defendant, whose pazents were away, invited everyone to his house in Brooklyn. After picking up sone beer, the group took a cab there. Later, several friends of dofendant’s from his neighborhood, including Antonio Russe, joined ‘the group at defendant's house. 6. At some point during his conversation with Denihan at his home, defendant told Denihan that he and his brother had guns in the house. Later, after returning to the den from the bathroom, Denihan noticed that Mark Fisher was gone. then she asked defendant where Fisher was, defendant told her that Fisher needed to get money and that defendant had sent Russo to go with him to an ATM, Defendant jokingly added that, “you never know ® Russo and defendant were tried before separate juries because, during the investigation, each had made statements incriminating the other.what happens when you go to an ATM in Brooklyn.” Defendant also told Denihan that he did not want Fisher in his house anymore and that he wanted to kick him out. Fisher and Russo thereafter returned to defendant's home, At about 6:00 a.m., Denihan saw that Fisher had fallen asleep on @ couch. Denthan then went to sleep herself on a different couch. sy that time, Cleary and Dipietro had left defendant’s home to go to Cleary’s nearby house to sleep, and a number of defendant’s other guests had also left. only Denihan, Fisher, defendant, defendant's brother Matthew Giuliano, and Antonio Russe, remained. Defendant, his brother, land Russo, were talking on an outeida porch when Denihan went to sleep. 7. Forty minutes later, Fisher's body, riddled with gunshots, was found on the ground several blocks from defendant’ s home. Later that day, defendant made admissions to Cleary and to defendant's girlfriend, Lauren Calciano, who had not been at defendant's home the previous night. When Cleary first spoke to defendant that day by telephone, and related to defendant that his nother had told him of @ shooting on his block that morning, defendant responded, “[0)h well, we might have had something to do with that.” Later that day, both Calciano and Cleary visited defendant, and defendant told them that he had given a gun toAntonio Russo after Russo told defendant that he thought Fisher looked Like he cane from money and that he wanted to rob Fisher. Calciano left at some point, and defendant also told Cleary that he did not know if Fisher was alive or dead, and that he hoped that Fisher was alive because Fisher could clear his name by telling people that he had been shot by a Hispanic guy and not by @ white guy. Defendant told Cleary that he regretted giving Russo the gun and he said, “tony, I told him to do one thing, ne does another and, you know, T really hope he didn’t do something stupid here.” Defendant told Cleary that he had been fed up with Fisher, who had drunkenly sat on a table, “disrespecting the house,” and that when he gave Russo the gun, he had told Russo to show Fisher Ywhat's up." Defendant told Cleary that Russo had gone outside to wait on Turner Place, down the road from defendant's house, and that defendant had sent Fisher outside, leading him out the door. Defendant said that Russo jumped out and started beating Fisher and that, after Fisher fought back, Russo shot him, beat him some more, and then shot him again. Defendant sald that Russo thereafter returned the gun to him and said “it was done.” 8. The week before the murder, defendant had shown a .22 caliber gun and bullets to Cleary, and defendant had fired that gun into a pile of telephone books. On the night of the murder,defendant had shown Cleary a different gun, a .380 caliber, that had fatter bullets. 9. The day after the murder, on Monday, defendant and Cleary spoke again and defendant expressed concern that the police were going to come to talk to them. hen Cleary asked defendant Af the house was “clean,” defendant told him that Anthony Beharzy had taken the guns and that defendant had hidden the bullets in the roof gutter. While Cleary was there, defendant retrieved bullets that appeared to be the .22 caliber bullets that Cleary had seen the week before, which were longer and skinnier than the bullete that defendant hed shown Cleary on Saturday night. Defendant flushed the bullets that he retrieved doun the toilet. 10. During that same conversation, defendant also told Cleary that he did not have to talk to the police, but defendant nevertheless practiced a story with Cleary, instructing Cleary to tell police that defendant had fallen asleep on the back porch, that Fisher had avakened defendant to say that he wanted to go home, and that defendant had taken Fisher to the front door and pointed him towards the Church Avenue train station, Defendant also wanted Cleary to say that after defendant closed the door, Cleary saw Denihan sleeping on the couch and he saw defendant goupstairs to bed. Cleary did, in fact, give that story to police officers who cane to talk to him the next day. 21, Anthony Beharry, who had not been present at defendant's home on the night of October 11 to October 12, 2003, ultimately admitted to police that he disposed of @ gun for defendant, at defendant's request, on the day of the murder or the next day. 12, Ballistics evidence at trial revealed that Mark Fisher had been shot with @ .22 caliber gun. 13. Cell phone records revealed that Russo had called defendant several times while Russo was out at the AIM with Fisher, snd that he had called defendant about three minutes before Fisher was murdered. cell phone records also revealed that two minutes after Fisher was shot, defendant's brother Matthew called defendant. 14. Cell phone records further revealed that; from 5:13 a.m. on October 12, 2003 through the end of October 14, 2003, defendant and Russo placed twenty-six calls to each other, and that, by contzast, between October 9 and October 11, they had placed only two calls to each other. There were algo records showing several calle from defendant to Anthony Beharry between October 12 and Ootober 14.15. Evidence of defendant’s gang membership vas introduced at defendant’s trial. Cleary testified that defendant was in a gang called the Ghetto Mafia or “GH” and that, about two weeks before Fisher was killed, defendant had told Cleary about a conversation that defendant had had with the gang's leader about Gu “getting soft,” and that defendant and the gang's leader had discussed “having to get a body before they got into GM.” Additional witnesses at trial, including Gregory Ware and Crystal valentin, testified to defendant’s gang menbership. 16. John Avitto, who had been incarcerated at Rikers Island with dofendant prior to defendant’e trial, testified about additional admissions by defendant. Avitto testified that defendant initially revealed to him that defendant was in jail on 2 homicide case, and that defendant had told him that there had been a party at defendant’s house, and the group had run out of alcohol, but defendant said that he never left the house. Defendant also told Avitto that he had been arrested on the case and released one year before because there was not enough evidence to hold him. Avitto testified that in February of 2005, while he and defendant were meeting with their respective family menbers at a Rikers Island visiting room, defendant introduced avitto to his visitors, which included defendant's father. Avitto was seatedvery near defendant's table, with his back to the back of Gefendant’s father’s chair, and Avitto overheard most of defendant's conversation with his family. Avitto overheard defendant's father ask defendant why he had the gun with him, and he heard defendant reply, “r just nad it.” 17, Avitto testified that he confronted defendant the next day and asked defendant why he had Lied, and Avitto told defendant that he had overheard defendent’s conversation with his father about having the gun. Avitto testified that, after initially appearing shocked at what Avitto had said, defendant eventually confided in Avitto, telling Avitto thet he hed hed a party, that they ran out of alcohol and needed money, that Mark Fisher (who defendant referred to as “the deceased person”) offered to go to the ATM to get money, and that defendant and two others whom defendant did not identify went with Fisher. Defendant told Avitte that Fisher took cut only twenty dollers and that defendant got mad and pulled out = gun and hit Fisher with it on the side of the head, causing him to fall. Defendant said that he and his companions started punching and kicking Fisher and that one of his companions then took his gun from him and shot Fisher. Avitto also testified to two subsequent conversations with defendant. In one, defendant was upset because his photograph was in the 10newspaper. In another, defendant was upset and he told avitto that he thought that somebody he knew was “rating him out. 38. On direct examination and during an extensive cross examination, Avitte acknowledged a lengthy criminal history going back to 1969, and a thirteen-year, on-and-off problem with cocaine and heroin use and addiction. Avitto described the plea agreement that was reached with regard to the charges for which he was imprisoned when he met defendant at Rikers Island. Avitto agreed to plead guilty to the felony of third-degree burglary pursuant to a conditional plea agreement that included a sentence of three and one-half to seven years’ imprisonnent, with that sentence te be deferred while avitto participated in » residential drug treatment program. The plea agreement provided for the ultimate dismissal of the felony charge, and no imprisonment, if Avitto successfully completed the drug treatment program, 19. Avitto testified that he had committed crimes to support his drug habit and that he vas, at the time of trial, doing “real welt” with his drug addiction. When the prosecutor asked him how he had been doing in the programs that he had been in since being released on his last case, Avitto responded that he was “doing good," although Avitto admitted having had two relapses since getting out of jail that involved him using cocaine. avitto atestified that after his first relapse in June of 2005 he had contacted Sean Ryan, his TASC case worker, and had told Ryan that he had relapsed and needed further help.” During cross~ examination, defense counsel probed Avitto’s relapses and his having been given several chances to stay out of prison and to try again at drug treatment prograne by the court supervising his release. Avitto acknowledged meeting with prosecutors on defendant's case about four times before testifying at defendant’ s trial, and he asserted that he had not asked for anything, nor had any promises been made to him by the prosecution, in exchange for hie testimony. 20. Defendant was convicted of felony murder, first-degree robbery, and second-degree criminal possession of a weapon. On October 19, 2005, he was sentenced to an aggregate term of imprisonment of twenty-five years to life (Marrus, J., at trial and sentence). 21. By a decision and order dated January 20, 2009, the Appellate Division, Second Department, affirmed defendant's Judgment of conviction. The Appellate Division found no merit to defendant’s unpreserved contentions that the prosecutor allegedly 2 ~tasc" is an acronym for “Treatment Alternatives for Safer Communities.” 2violated the trial court’s Molineux ruling concerning evidence of defendant’s gang affiliation and that she allegedly made unduly inflammatory remarks in her opening statement and summation. People v. Giuca, 58 A.D.3d 750, 751 (2d Dep't 2009). The Appellate Division also found no merit to defendant’s remaining contentions, noting that “theze was overwhelming evidence of the defendant's guilt.” Id. On June 17, 2009, defendant's application for leave to appeal to the New York Court of Appeals was denied. Feople v. Giuea, 12 N.¥.3d 915 (2009) (Ippman, ead. 22. while dafendant’e direct appeal wae still pending, he filed his first motion to vacate the judgment of conviction. The filing of that motion followed a xash of newspaper articles that revealed that defendant’ s mother had conducted “sting” operation aimed at one of the male jurors who had sat on defendant's trial. It was revealed to the press, and later in the motion papers thenselves, that defendant's mother, Doreen Giuliano, had disguised herself -~ losing weight, dressing in sexy clothing, and using a false nene and occupation -- in order to befriend and date the juror. Defendant’s mother also rented an apartment in which to see the juror and speak to him privately. The Juror did not recognize defendant’s mother, who pretended to be a researcher Baffiliated with Brooklyn Law School’s Second Look Program, and who pretended to be fascinated when the juror revealed to her that he had sat on the jury at a major murder trial. Defendant's mother got the juror to talk about defendant’s case on a number of occasions, and she did not let him know that she was recording their conversations. 23. Defendant’s mother submitted an affidavit in support of the motion in which she stated that, acting on information that one of defendant's jurors lived in the vicinity of a witness at Gefendant’s trial, she undertook to investigate that juror. Defendant’e mother deceribed dicguicing herself and befriending the juror under the false name, “Dee Quinn,” and recording some of their conversations with 2 hidden recorder. Defendant’s nother alleged that the juror admitted to several acts of misconduct during defendant’s trial, including: (1) being familiar with defendant and others involved in the case before trial, but lying about that during voir dire, (2) discussing the case with his cousin during his jury service and receiving from her prejudicial information that members of defendant’s gang believed defendant to be guilty, and (3) reading newspapers during the trial in violation of the court’s admonition not to do so, including articles recounting evidence that vas admitted only before co- 4defendant Russo’s jury. Defendant's attorney, Lloyd Spetein, Esq. also submitted an affirmation in support of the motion, repeating what he had been told by Giuliano. In addition, defendant submitted an affidavit from an investigator, Elizabeth Ghormley, asserting that she had spoken with “Billy Wenzel” (an alleged menber of defendant’s gang whose name had been mentioned at defendant’s trial, but who did not testify), and that Wenzel had told her that he was acquainted with the juror and the juror’s cousin, and that Wenzel had told the juror’s cousin while the trial was ongoing that he believed that defendant was guilty. No affidavit wee provided from Wenzel himself. Defendant also annexed to the motion a newspaper article that had been published during the trial, vhich defendant asserted contained prejudicial information. Finally, defendant provided summaries, prepared by defendant’s mother, of some, but not all, of her recorded conversations with the juror. 24, Defendant subsequently turned over to the People compact, discs (“COs”) containing what were purported to be copies of all of the recorded conversations. However, one CD of conversations was turned over only after the People filed their papers in opposition to the motion. The People filed supplenental papers addressing the belatedly revealed recorded conversations. as25. In thelx zesponsive papers, the People argued that defendant's motion should he denied without @ hearing because the motion papers did not include sworn allegations by anyone with personal knowledge of the alleged Juror misconduct, as required by C.P-L. § 440.30(4) (0). The People also argued, in the alternative, that even if the hearsay recordings were treated as the equivalent of 2 sworn statement, the actual content of the recordings revealed that the juror had made no adnissions to prejudicial misconduct. The People argued that, for that reason as well, no hearing was warranted. 26. The People sunmarized the recorded conversations én detail and noted, first, that -- contrary to defendant’s mother’s assertions -- the juror had not admitted knowing defendant or persons involved in the case before trial and intentionally concealing that information during voir dire, Rather, the xecorded conversations revealed that the juror consistently and explicitly told defendant's mother that, before trial, he aid not know defendant, co-defendant Russo, or defendant’s gang menbers. Furthermore, the juror's conversations revealed that both his and his cousin's relationships with Billy Wenzel and with Billy Wenzel’s brothers completely tangential figures who were 16briefly mentioned at defendant’s trial and who were not witnesses + were long past by the time of defendant’s trial. 27. With respect to defendant's second claim of prejudicial misconduct, the People noted that the juror never said in any of the recorded conversations that he had discussed defendant's case with his cousin “during the trial.” The People pointed out that fone conversation between the juror and his cousin had clearly taken place after the trial was over -- because the juror related to defendant’s mother how he had discussed with his cousin the sentence that defendant had received. The People acknowledged that the recordings aleo sevealed that the juroz had had a conversation with hie cousin about something that she had overheard shortly after Mark Fisher was murdered, about someone named “Slim,” but the People noted that it could not be ascertained fron the recordings when that conversation had taken place. The People also pointed out to the court that, in any event, the recordings clearly established that the jurors cousin had not mentioned defendant by name in that conversation, and that the juror did not know, at the time of that conversation or at the time of voir dire, that defendant used the nicknane “Slim.” 28. The People agreed that the juror had admitted improperly reading newspaper accounts of the trial while serving on the jury. uHowever, the People noted that the juror had not said which paper he read, and that the one article that defendant annexed to the motion, which defendant suggested would have been prejudicial if read by the juror, could not have prejudiced the juror (even if he read it), because the allegedly prejudicial content of the article was an account by Antonio Russo to his girlfriend that defendant hhad been present at the murder and had fired sone shots at Fisher This was reported to be one of several flip-flopping accounts of the murder that Russo had given, some of which did not place defendant at the scene, However, as the People pointed out to the court, the xecordinge were sbundantly clear that the juror never thought that defendant was present at the murder. He repeatedly distinguished “the shooter” or “the triggerman” from defendant in discussing the case with defendant’s mother, and he described defendant as the one who gave the order that Mark Fisher be killed and as the one who was in the background. The People argued that, consequently, even if the juror had read the New York Fost article that defendant annexed to his motion, it could not have prejudiced him, The People also argued that because felony murder was ultimately the only murder charge that was submitted to the jury, and the jury received an acting-in-concert charge, the question of whether defendant fired shots or instead was not present when the a8shots were fired was irrelevant to the jury’s determination of the verdict, as long as there was evidence that defendant gave the gun to Russo and wanted Russo to rob Fisher. Finally, the People also noted that the juror had clearly stated to defendant’s mother several times that he had decided the case on the evidence at trial -- telling defendant's mother that “the evidence was all there,” that the prosecutor had “laid it out perfectly” and “built it down to the littlest details,” and that the defense “had nothing.” 29. While defendant's motion was pending, and even before it had been filed, articles appeared in the prece about defendant’s claims, and defendant's mother appeared on various television programs discussing the sting operation and her accusations of juror misconduct. these articles and video clips are still available on the internet.* “See, for example, the Novenber 28, 2008 article in the Daily News, titled “Mother of Convict ohn Giuca Used Sexy Strategy to Get Info From Juror”; the December 1, 2008 article in the New York Times, titled “Juror Sting Could Overturn Murder Verdict”; the December 16, 2008 article in the New York Post, titled “Mom Scams Juror ~ Goes Undercover to Free Son"; and a March 4, 2009 article in The Brooklyn Ink titled, “A Year After Undercover Mother Goes on Sting to Save Son, She still waits.” 1930. By decision dated April 1, 2009, the trial court denied defendant’s motion without a hearing. People v. Giuca, 23 Misc. 3d 1104(A), 2009 N.¥. Misc. LEXIS 688 (Sup. Ct. Kings Co. Apr. 1, 2009). The court noted that the motion contained “no sworn statements from a juror or first-hand accounts from an eyewitness documenting any juror misconduct during the defendant's trial.” The court found that the recordings upon which defendant relied were “selectively-recorded,” and that they were “compiled and submitted to the court in a manner which cast(] grave doubt on their completeness and reliability.” Later in its opinion, the court added that the recordings also “conspicuously lack{ed) the necessary foundation required by law for admissibility in a court proceeding” noting that defendant had not provided an affidavit ox affirmation that the recordings represented a complete and accurate reproduction of the conversations between defendant’s mother and the juror, that. no representation had been made that the recordings were not altered in any way, and that no affidavit had been provided from an expert who had analyzed the recordings and offered an opinion that the recordings had not been altered. 2009 N.Y. Misc. LEXIS 698, at **2, **8. 2031. The court added that it was only after the People had answered defendant's motion that defenee counsel suddenly @iscovered additional recorded conversations, which vere then supplied to the People and to the court, and the court stated that it could have “no confidence in the completeness or accuracy of the xecordings submitted by the defense in support of this motion." id. at **8-**9, the court listened to the recordings and found it “evident that they randomly begin and end, are not date or time stamped, and contain gaps in the conversations,” and the court added that the conversations, which took place over a one year peried between October 2007 and cctober 2008, were also “not completely audible or decipherable.” Id. at *9. 32. In denying the motion without a hearing, the court relied upon People v. Friedgood, $8 N.¥.2d 467 (1963), and many Appellate Division decisions upholding the appropriateness of a trial court's exercise of its discretion to summarily deny a motion to vacate a judgment based upon claims of juror misconduct where the motion is predicated on hearsay allegations contained in affidavite of defense counsel, private investigators, of others. People v. Giuca, 2009 N.Y. Misc. LEXIS 688, at **10-**12. 233. The court also denied defendant’s motion because, notwithstanding the motion’s “blatant procedural deficiencies,” the court thoroughly reviewed the specific claine of juror misconduct based upon the recordings and found them to be without merit. Id. at *#12, The court found that defendant’ claim that the juror “intentionally concealed before and during trial personal knowledge of some of the central issues and people involved in this case” was rebutted by the trial record and by defendant’s mother’s recordings, “assuming their reliability and authenticity.” The court noted that the voir dire minutos af trial revealed that potential jurors had boon asked to indicate if any of the names read to them from a witness List were familiar, or if they had heard or read anything about the case that would create a problem for them to be fair -- and the court cited to one of the recorded conversations, which revealed that the juror had told defendant's mother that he knew that jurors had to let the court know if they recognized anyone who might he a witness, but that he “didn’t know any of their names.” The court cited the juror's recorded statement that his cousin's relationship with the Wenzel brothers, whose nanes were mentioned on the witness list, had occurred ten or twelve years before trial, and that 22the juror’s cousin had spoken of defendant only as “Slim,” a nickname the juror did not then know referred to defendant. The court noted that the juror had explicitly stated to defendant’ s mother that he had “never met or even heard of the defendant before trial,” and the court further noted thet neither of the Wenzel brothers testified at defendant’s trial. Based upon ite review of the recordings, the court found no credible foundation for defendant’s claim that the juror had intentionally lied during jury selection and had a prior familiarity with the defendant and witnesses which would have impacted his verdict. Id. as 15. 34. The court also noted that the juror had explicitly stated in the recorded conversations that the prosecution had proved its case and that “the evidence was all there.” Id. at weis-##16, "18-19, The court found that the remainder of defendant's clains lacked any docunented showing of prejudice to a substantial right. ‘The recordings did not show when the juror discussed the case with his cousin, or that he improperly received any information which impacted his verdict, or that he fever communicated any extraneous information to other jurors. Defendant's motion similarly did not document that the juror received or relied upon any prejudicial information fron any 23newspaper article that he may have read during the trial, and the court noted that the law in New York was clear “‘that mere exposure to accounts in newspapers pertaining to a defendant and his conduct, without more, is insufficient to xebut the Presumption of a jurors impartiality and to warrant disqualification.'” Id. at *#17-*#18 (citations omitted). 35. The court concluded that because defendant’s motion was predicated on tenuous hearsay allegations and failed to establish juror misconduct which prejudiced defendant's right to a fair trial, a hearing was not warranted. Id. at #19. The court devoted tho balance of its decision to defendant's mothe:''s conduct, which demonstrated a “callous disregard for the privacy rights of jurors," and which highlighted “the need for our law to protect future jurors from such intrusion.” Id. at 83, 19-8833, 36. Defendant received permission to appeal to the Appellate Division from the order denying his motion to vacate the judgment. Notwithstanding the factual findings of the trial court that defendant’s claims of juror misconduct were not supported by the recorded conversations, defendant repeated in his main brief all of the same allegations of misconduct by the juror that he had asserted in his motion papers. Defendant’s brief was so laden 2awith misrepresentations of vhat the juror had allegedly said, and nisrepresentations of what the People had conceded below, that, after addressing the three primary claims of misconduct that had been argued below, the People had to include, in their brief to the Appellate Division, a subsection titied “Defendant's Additional Misstatements Regarding the Recorded Conversations and the People’s Positions.” 37. In his reply brief, defendant for the first time added a new clain that the recordings established that the Juror was anti- Semitic and that he had decided the case against defendant because he believed defendant to be Jewish. The People moved to strike this claim, because it had not been litigated below and because it was improper for defendant to raise a new claim for the first tine in a reply brief. The People also moved, in the alternative, to have the Appellate Division consider their response to the claim Af the court decided not to strike the claim -- and the People included in their motion papers a response to the merits of the claim. In those papers, the People agreed that the recorded conversations revealed that the juror had thought that defendant was Jewish, but the People disputed that the juror had made any anti-Semitic statements or statements that suggested that he’ was 25biased against defendant because he thought that defendant was Jewish.? 38. By a decision and order dated November 3, 2010, the Appellate Division affirmed the order denying defendant’s motion to vacate the judgment. People v. Giuca, 78 A.D.3d 729 (2d Dep't 2010). The Appellate Division noted that “{tJhe affidavits submitted by the defendant contained only hearsay allegations concerning the conduct of the subject juror and therefore were insufficient to support the motion.” Id. at 729. The Appellate Division further held that, although defendant had pubmitted audio recordings of statements allegedly made by the juzor during several conversations with defendant's mother, “the defendant's submissions failed to establish the accuracy or authenticity of those recordings, and the oral statements contained therein did not constitute ‘evidentiary facts.’” Id. at 730 (citations omitted). The Appellate Division also concluded that, “[iJn any event, the recorded statements attributed to the subject juror upon which the defendant relied * Additional articles appeared in the press while the appeal from the denial of the motion to vacate the judgment was pending. See, for example, an article in the New York Fost, dated October 15, 2010, titled “*Perjury’ bid in slay appeal.” 26in support ef his motion, even if true, would not entitle the defendant to vacatur of the judgment of conviction.” Id. 39, The Appellate Division granted the People's motion to strike that portion of defendant's reply brief alleging juror bias on the basis of religion, which had been raised for the first time in defendant’s reply brief. Accordingly, the Appellate Division did not consider that claim in the determination of the appeal. Id. 40. On April 4, 2011, defendant’s application for leave to appeal to the New York Court of Appeals was denied. People v. Giuca, 16 8.¥.34 059 (2021) (Lippman, 6.34). 42. By papers dated April 26, 2012, defendant thereafter moved for a writ of habeas corpus in the United States District Court for the Eastern District of New York. In his habeas petition, defendant did not raise any of the claims that were raised on direct appeal. Defendant argued that he was entitled to habeas relief solely on the basis of the alleged juror misconduct. In his papers, defendant again made multiple misstatements of the juror’s remarks and of the positions taken by the People in their papers in state court. Again, the People had to explain the falsity of the statements in defendant's papers with citations to the recorded conversations themselves. The People explained to 20‘the district court (in footnote 4 of their responsive papers) that ‘they had had to devote an entire subsection of their brief to the Appellate Division addressing defendant’s numerous misstatenents of the recorded conversations, and the People again addressed those sane misstatenents that defendant made in his habeas papers, including the following misstatements: that the juror “concealed his prior biases because he wanted to sit on the jury and convict Mr. Giuca"; that the Juror “concealed his personal knowledge of Mr. Giuca’s membership in the gang, his negative personal contacts with the gang, and his knowledge that certain gang menbers believed that Mr. Giuca was guilty of the murder; that the juror “confessed that he intentionally concealed his true beliefs because he wanted to sit on the Jury and convict Mr. Giuca"; that “[tihe neighborhood was full of mimors and no one was sure what was true - except for [the juror) . . . [who] already knew everything he needed to know"; that the juror admitted having considerable contact with Ghetto Mafia gang menbers prior to trial and believed that GM had committed many violent acts; that the juror’s younger brother had been abused by the GM, and that the juror concealed this information during voir dize and for the remainder of the trial because he wanted to sit on the juryy that the prosecutor had placed undue weight on the gang evidence and 28that that was “exactly what [the juror] wanted to hear. ie felt no need to scrutinize the substantive testimony or determine whether the GM really existed. He was confident that [he] already knew what he needed to know about Mr. Gluca and GH"; that the juror “admitted that he made up his mind about Mr. Giuca’s guilt before hearing the evidence, and understood that he would have been disqualified fron the jury had he not concealed his biases”? that the juror knew of co-defendant Russo and that before trial the juror hung out with menbers of the Ghetto Mafia and knew that that gang met at the hone of the Wenzels; that the juror knew of defendant from bis cousins thet the Juror mow that the Wenzele were prone to violence; and that GH members abused the juror’s brother. 42. In their answer to the habeas petition, the People also pointed out that defendant had altered his account of the genesis of his motion from the account that he had provided to the state court. In his habeas papers, defendant claimed that “(s)everal months after sentencing, Doreen Giuliano, defendant’s nother, heard a rumor about {the juror). The rumor was that [the juror] Lived nearby, had known one of the witnesses in the case, and had intentionally concealed thie knowledge throughout the trial.” However, in his state court motion papers, defendant had claimed 29only that, when defendant's mother decided to investigate the juror, she had heard a rumor that the juror lived near one of the witnesses at trial. 43. In their answer to the habeas petition, the People further pointed out that defendant had changed his claim from the claim in state court that the juror had received prejudicial, information from his cousin during the trial (which the jurors cousin had allegedly received from a visit to Billy Wenzel during the trial), to the position that “[the juror) recalled his cousin telling him [of an overheard conversation} before the testimony began” and admitted knowing at the time of jury selection “that he should have been disqualified from sitting on the jury because of his personal knowledge of Mr. Giuca and the GM, and what his cousin told him.” The People also disputed defendant's recitation of some of the People’s positions in state court. 44, Again, while the habeas petition was pending, articles appeared in the press, in addition to internet bloggers’ reports, repeating the juror misconduct allegations.* "In the August 19, 2012 New York Post article, “fruth-Sleuth Mom Wooed Her Killer Son’s Juror to Get ‘Mistrial’ Dirt,” the totally false statement was made that the juror had said that he “had recognized some of the witnesses in her son’s trial from the neighborhood, and he thought it was wrong not to admit that and 3045. On May 14, 2013, defendant’s petition for a writ of habeas corpus was denied. Giuca v. Lee, No. 12-Cv-02059, 2013 U.S. Dist. LEXIS 69424 (E.D.NLY. 2013) (Block, J.). In its Gecision, the district court discussed with approval how the state courts had handled the case, and the court added: Although the state courts need not have addressed the substantive contents of the recordings, it was prudent to do so to dispel the notion that there may have been any substantive indicia of juror misconduct, given the sensational nature of the means by which Giuliano ensnared (the juror] into her spider's web. The Court has similarly substantively analyzed the information contained in the recordings and agrees with the state courts’ conclusions. Curiously, in a number recuse nimseit.” That article also sympathetically xeported, as defendant's mother’s “conundrum,” the fact that her “undertaking necessitated such grand deceit that any inconsistencies in her story work against her.” In her August 1, 2012 posting to an internet blog site (at Inps:imlioterme wordpress com2012080 masher another- pespectve-onjohngiucety-matley-das), blogger Marley Davis, who acknowledged having visited defendant numerous times in prison, urged readers to attempt to influence the judge handling the habeas case, weiting that she thought that things in the case did not “add up,” and that she thought that defendant did not get a fair trial, asserting, “I find it horrendous that a prejudice man vas allowed on the jury. One who made up his mind BEFORE the trial even started.” Davis urged her readers to read about the case and she advised that defendant’s appeal was “on the judge's desk now and will be ruled on at the beginning of Septenber. I will be sending the judge a letter urging him to grant the appeal for a new, fair trial, if there is really even enough evidence to show him guilty. I don’t think there is.” The next day, in a posting titled, “update: Mack Fisher murder *Sample letter for Judge to get a new, fair trial for John Giuca*” Davis posted a sample letter to Judge Block, asserting that defendant did not get a fair trial because witnesses lied and because the juror was biased, and she urged readers to sign and send copies of that letter to the judge. 31of respects, the recorded conversations are at a variance with what Giuliano relates in her affidavit, as well as in Giuca’s lawyer’s briefs Id. at *13-*14. The district court denied a certificate of appealability to the United states Court of Appeals for the Second Cireuit. Id. at *20. 46. Defendant thereafter applied, pro se, to the United States Court of appeals for the Second Circuit for a certificate of appealability. By mandate dated August 15, 2013 and issued on September 26, 2013, the Second Circuit denied defendant’s motion and dismissed the appeal because defendant had “not made a Neubstantial showing of the denial of @ constitutional right.’ 28 U.S.C. § 2253(c)." Giuca v. Lee, Second Circuit Case No. 13-2229 (2013). 47, Following the 2013 election of Kenneth P. ‘Thompson as the new District Attorney for Kings County, defendant filed a petition for an internal review of his conviction by the Conviction Review Unit (“CRU”) of the District Attorney's Office. Again, defendant’s filing was accompanied by a barrage of articles in the press that were apparent attempts to influence the decision 32on his petition.” In his petition, defendant made numerous arguments in support of his request that the District Attorney agree that defendant’s conviction should be vacated and that defendant should receive a new trial. As part of the petition to the CRU, defendant provided recantation affidavits from three ‘ ghese articles included the February 2, 2014 article in the New York Times, “Petition Seeking to Void Brooklyn Murder Conviction Calls verdict a ‘sham,’ in which it was reported that defendant's conviction for Mark Fisher's murder was “a ‘shan’ built on prosecutorial misconduct, a feeble defense, contradictory evidence, a biased juxor and the testimony of witnesses who have since recanted”; the February 10, 2014 article in The Brooklyn Paper, “EXCLUSIVE: Chris Noth set to play former Brooklyn District, Attorney Charles Hynes in new movie” (which article mentioned defendant's mother’s sting operation against the juror and the petition for conviction review filed by the defense); the February 21, 2014 article in The Brooklyn Paper, “Mother of John Giuca hopes District Attorney Ken Thompson will review murder conviction”; the August 11, 2014 article in the Daily News, “Waiting for Justice in Brooklyn. Did a star ADA cross the Line?” the August 17, 2014 article in the New York Post, “Ghetto mobster or innocent min? A NYC murder cage falle apart” (asserting that “nine years after the verdict, the case against Giuca appears to be crumbling, possibly adding’ to a long line of overturned convictions from the era of former District Attorney Charles Hynes,” and recounting many of the arguments made in the petition to the CRU); the September 24, 2014 article in the Observer, “Did an Ambitious Prosecutor Convict the Wrong Man for the Killing of Mark Fisher?"; the December 15, 2014 article in the New York Post, “Mother of convicted killer asks DA to set him free for Christmas” (quoting defense counsel's confidence that defendant would be exonerated “because the case has been exposed as a house of cards propped up by prosecutorial misconduct”); and a _ten-page Letter/memorandum submitted to the CRU in support of the petition, posted online at http://www. freejohngiuca. com/paf /GershmanLetter~ Lipa 33trial witnesses -- Lauren Calciano, Anthony Beharry, and John Avitto -- and defendant claimed that the People knew or should have known that those witnesses had given perjured testimony at trial. Defendant asserted, further, that the People had violated their Brady and Giglio obligations by “concealing and then misrepresenting that Avitto sought and received a benefit from the DA in exchange for false testimony.” with respect to Avitto, defendant alleged that Avitto's testimony that he had heard defendant's father speaking to defendant at Rikers Island was “impossible” because defendant’s father had allegedly suffered a stroke yoare before hie vieit to defendant at Rikers Island and was allegedly unable to speak. Defendant also repeated claims similar to claims that had been saised on appeal about the prosecutor's allegedly improper summation remarks and alleged violation of the trial court's Molineux ruling; defendant again raised the juror misconduct claims? and defendant asserted, among additional elaine, = claim of actual innocence, as well as a claim that defense counsel at trial was ineffective for allegedly failing to (2) conduct. «an appropriate investigation, (2) effectively cross-examine the People’s witnesses, and (3) call witnesses “who would have destroyed the DA’s case.” 3448. By decision announced on January 12, 2015, the District Attorney declined to take any action to vacate defendant’s conviction, concluding that defendant had failed to establish that he did not receive a fair trial. 49. Defendant now moves for the second time to vacate his Judgment of conviction pursuant to C.P.L. § 440.10. Abandoning most of the clains that were raised in the petition to the CRU, including his claim that recantations by Calciano and Beharry supported a conclusion that there was perjured testimony at degendant’s trial that resulted from improper prosecutorial pressure, and the claim that he 4s actually innocent, defendant’s sole claim for relief in the instant motion involves John Avitto, whose testimony defendant alleges was perjured (Affirmation of Mark AB. Bederow dated Mar. 26, 2015 [hereinafter “Bederow Affimation”}], at 1, 5, 16, 29-30)." Defendant further argues that the prosecution took undisclosed actions on Avitto’s behalf in exchange for Avitto's testimony and that, in doing so, the prosecution violated its obligations under srady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United states, 405 U.S. 150 (1972) (Bederow Affirmation at 2-5, 19, 29-37). Defendant annexes two © Defendant nevertheless annexes Calciano’s and Beharry’s recantation affidavits to his motion as Exhibits E and G. 35affidavits from avitto in support of this motion, in addition to transcripts from court appearances in Avitto’s case (Avitto Affidavits; Defendant's Exhibits F, H, I, and K). Defendant also annexes two “Violation” letters to the court supervising Avitto’s case, dated September 19, 2005 and September 20, 2005, both of which bear the signature of Avitto’s TASC caseworker Sean Ryan (Defendant's Exhibits J and 1). 50. Defendant alleges that the lead prosecutor at Gefendant’s trial, Assistant District Attorney Anna-Sigga Nicolazzi, knowingly elicited false testimony from Avitto at defendant’s triel when Avitto testified that he was doing well in drug treatment and that he aid not expect or ask for any aseistance with his own case in exchange for testifying against defendant (Bederow Affirmation at 4-5, 17-20, 28-35). Defendant. alleges that A.D.A. Nicolazzi and other members of the District Defense counsel acknowledges that, in preparation for filing this motion, he had trial counsel, Samuel Gregory, Bsq., review Avitto’s ‘trial testimony, his own summation, the prosecutor’s summation, and other documents related to the trial and to Avitto, including the (allegedly fraudulent) September 20, 2005 progress report for Avitto, and that Mr. Gregory advised him that he “did not recall any trial issues related to avitto’s credibility, including those related to the People’s disclosure of Brady and Rosario material,” and that Mr. Gregory had “declined to execute an affirmation about any matters associated with Giuca’s case” (Bederow Affirmation at 7). 36Attorney's Office did intervene in Avitto’s burglary case to keep him out of prison notwithstanding Avitto's lapses into drug use and/or other violations of the rules of his court-mandated drug treatment programs, and defendant further alleges that A.D.A. Nicolazzi had a hand in the preparation of a “fraudulent drug program report” (the September 20, 2005 Violation letter) that was allegedly produced in order to minimize Avitto’s violations (more fully set forth in the Septenber 19, 2005 letter) and thereby to minimize the impeachment that defense counsel at trial could achieve in cross-examining Avitto with that letter (Bederow Affirmation at 18-19, 35-42) Si, In making this particular accusation, defendant alleges, upon information and belief, that defense counsel at defendant’ s trial did not receive the September 19, 2005 letter, which included information (not included in the Septenber 20 letter) regarding Avitto being terminated from Kingsboro Rehabilitation Center on September 19, 2005 for bringing cigarettes into the facility and distributing then to other patients (Bederow Affirmation at 18-19). 3752. Avitto’s two affidavits are dated July 8, 2013 and April 10, 2014."° In the first of these affidavits, Avitto asserts that he lied at defendant's trial and that he has been racked with guilt ever since (Avitto Affidavit, July 8, 2013, at 1, paras. 3), Avitto alleges that he fizet contacted police in dune of 2005 to claim that he had information about defendant after he had absconded from a drug treatment program and relapsed inte drug use, which violations of his February 8, 2005 plea agreenent could have resulted in hie imprisonment for three and one-half to seven years. Avitto asserts that he offered to help the police with the expectation that he would receive help in avoiding 4mprizonnent on his own case (Avitto Affidavit, July 8, 2013, at 2-3, paras. 10). Avitto alleges that he concocted @ false confession that he attributed to defendant based upon newspaper reports of the Mark Fisher case that he had read, and that, after he gave his information to Detective Byrnes and A.D.A. Nicolazzi on June 13, 2005, they thereafter accompanied him to court to clear up his outstanding arrest warrant (Avitto Affidavit, July 8, 2013, at 3- 5, 7, paras. 11-17, 25). % avitto’s two affidavite axe attached to defendant's motion papers, not to his separately bound package of exhibits, and defendant has not designated them with an exhibit number or letter. 3853. Avitto also alleges in his first affidavit that he had Subsequent meetings with A.D.A. Nicolazzi and with detectives, and that, during those meetings, he provided the additional false information that he had overheard a conversation at Rikers Island between defendant and defendant's father, who was visiting defendant, and that he had heard defendant's father ask defendant why he had the gun and defendant respond that he “just had it” (avitto Affidavit, July 8, 2013, at 4, 7, paras. 18, 25). Avitto describes court appearances in his own case at which he was not ordered incarcerated despite having violated the rules of his programs and the conditions of his xelease, and he asserts that the various assistant district attorneys who were present at these court appearances did not object to his release and did not ask for bail (avitto Affidavit, July 8, 2013, at 5-6, paras. 17-22). 54. In both affidavits, avitto addresses the two letters from his case worker, Sean Ryan, dated Septenber 19, 2005 and Septenber 20, 2005, respectively. In his second affidavit, Avitto acknowledges that the content of both letters is true: “Both of then are true. In other words, as the Septenber 19 letter Indicates, I did smuggle contraband into the program and 1 was discharged. As the September 20 letter indicates, at that time, T had absconded and my counselor may not have known my whereabouts” 39(avitto Affidavit, July 8, 2013 at 6-7, paras. 22, 237 Avitto Affidavit, Apr. 10, 2014, at 2, para. 7). Avitto explains that the contraband that he had smuggled into his rehabilitation center was cigarettes, and he ascerts no knowledge why two separate letters were prepared (avitto Affidavit, ape. 10, 2024, at 2, paras. 6 8). Avitto also adds the assertion that he had been @iagnosed with schizophrenia and that he had been prescribed Seroquel for that disorder, and that, while the Seroquel did help him sleep, he testified falsely at defendant's trial that the Seroquel had heen prescribed as a sleep medication and net for schizophrenia (Aviteo Affidavit, Ape. 10, 2014, at 3, para. 11). 55. Defendant's annexes, as Exhibit N, an August 15, 2014 letter to defense counsel from Assistant District Attozney Michael W. Trabulsi, who was involved in the review of defendant’s petition by the CRU. A.D.A. Trabulei informed counsel in that Letter that he had spoken with and corresponded with Sean Ryan, wuho had been Avitto’s case worker with the TASC BAC-LINK program, that Me. Ryan had veviewed both the Septenber 19, 2005 and the September 20, 2005 letters to the court regarding Avitto’s violations, and that Me. Ryan had informed A.D.A, Trabulsi that “the signatures that purported to be his appeared to in fact be nis.” 4056. A.D.A. Anna-Sigga Nicolazzi has xeviewed defendant’ s motion papers and his allegations that she connitted misconduct at defendant's trial, and she categorically denies those allegations. In an affirmation annexed hereto as People’s Exhibit A, A.D.A. Nicolazzi states as follows: Avitto sought out the District Attorney's Office to reveal that defendant had told Avitto, while avitte and defendant were incarcerated together on Rikers Island, that defendant was present at and participated in the beating of Mark Fisher just before defendant's friend took defendant’s gun from him and shot Fisher, and Avitto expressed his willingness to testify to defendant's adnissions at dafendant’s trial. avitto told her that he was coming forward because he thought that it was the right thing to do, Avitto did not ask the District attorney’ Office for any consideration in return for his testimony, she did not make any promises to Avitto in return for his testimony, and nothing was said in any of her conversations with avitto to suggest to him that he would receive help with his own case in exchange for testimony against defendant. Prior to the start of defendant's trial, she provided a witness list to defense counsel that included avitto’s name and his entire criminal record, so that defense counsel had the opportunity before avitto testified ato obtain and review all of the records from avitto’s current and past cases. 51. A.D.A. Micolazzi denies any knowledge of, participation in, of input into, the preparation of the September 20, 2005 Violation letter to the court supervising Avitto's case. 58. A.D.A, Nicolazzi states that Avitto did not give any testimony at trial that, at that time, she believed to be false or that she now believes to have been false. 59. A.D.A. Nicolazzi acknowledges accompanying Avitto to court on June 13, 2005, the dete on which he met with her for the first time at the Diatrict Attorney's office, but she denies taking any action on Avitto’s behalf that was not routine in TASC plea cases. 60. The Beople dispute the allegations of fact advanced by defendant in support of his motion. Accordingly, defendant should be required to prove those allegations at a hearing by a preponderance of the evidence. See C.P.b. § 440.30(3), (5) (iE allegation of fact essential to support motion is in dispute, then court must conduct hearing); C.P-L. § 440.3016) (at hearing, defendant has burden of proof by preponderance of the evidence); see also People v. Levis, 125 A.0.3d 1109, 1111-13 (3d Dep't 2015) (where, in support of defendant's ¢.P.L. 2§ 440.10 motion, witness claimed that he had been coerced to testify at defendant’s trial by threats from corrections officers and others at his prison, and no threats had been revealed by the People at defendant’s trial, court should have held a hearing to resolve whether witness had been threatened by prison officials, whose knowledge would not be imputed to the People, or by law enforcement officers affiliated with an outside police agency, such that the People would be duty-bound to disclose any evidence within the knowledge of those officers); People v. Jenkins, @4 A.D.3d 1403, 1407 (2d Dep't 2011) (reversing aummary danial of one branch of C.P.1. § 440.10 motion as improvident exercise of discretion, and remitting for hearing, where motion court denied a hearing regarding claim by recanting witness that his testinony was the product of improper police pressure; under circumstances of case, court’s conclusion that recantation was entirely incredible was unwarranted in the absence of a hearing; court should also have held hearing on ineffective assistance of counsel claim; but court properly denied other branch of motion after a hearing on a different recantation claim relating to a different witness); cf. People Smith, 85 A.D.34 1297 (34 Dep't 2011) (affirming denial of C.P.L. § 440.10 motion alleging a Brady violation for thePeople’s alleged withholding of evidence that witness at defendant’s trial received a benefit on his oun case, where motion court held a hearing on the claim and found no evidence that the plea offered to the witness was in any way related to his testinony at defendant's trial). 61. The People do not oppose this Court ordering an evidentiary hearing to resolve the disputed factual issues presented by defendant's motion. The People request an opportunity to advance legal azgunents in response to defendant’ s motion after the evidentiary hearing has been held, if such a hearing is ordered by the Court. WHEREFORE, the People oppose defendant’s motion to vacate his Judgment of conviction, but consent to an evidentiary hearing to resolve the disputed factual seues presented by defendant's motion. Dated: Brooklyn, Wew York May 21, 2015 es Assistant District attorney (718) 250-2489 “aEXHIBIT ASUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CRIMINAL TERM, PART 14 ‘THE PEOPLE OF THE STATE OF NEW YORK AEEIRNATION ~againat- Kings County Indictment Number JOHN G1uca, 166/204 Defendant. ANNA-SIGGA NICOLAZZI, an attorney admitted to practice in the State of New York and an Assistant District Attorney in the County of Kings, affirms the following to be true under the penalties of perjury: 1. I aman Assistant District Attorney in the Kings county District Attorney's Office. I have served in the District Attorney's Office since October 1995. 2. In Septenber of 2005, I was the lead prosecutor at the trial of People v. John Giuca, Kings County Indictment Number 8166/2004, which was tried before Justice Alan Marrus. Defendant had a co-defendant, Antonio Russo, who was tried at the sane tine but before a separate jury. Both defendant and Russo were convicted of felony murder and first-degree robbery for the robbery and murder of nineteen-year-old Mark Fisher, a FairfieldUniversity student. Defendant as also convicted of criminal possession of a weapon in the second degree. 3. I submit this affirmation in response to defendant's March 26, 2015 motion to vacate his judgnent of conviction. 4. I make the statements in this affirmation based upon my own recollection and based upon my examination of the files and kecords of the Kings County District Attorney's Office, including the transcript of defendant's trial and defendant’ s current motion papers and exhibits, 5. I have read defendant’s current motion to vacate his judgment of conviction, which motion 1e primarily bascd upon the 2013 recantation by John avitto of his testimony at defendant's trial. Avitto testified for the People at defendant's trial to admissions that defendant made to him while defendant and avitto were both incarcerated at Rikers Island, and he also testified that he did not receive any benefits from the People with respect to his own burglary case and that he was doing “good” in drug treatment. But Avitto now asserts that he lied at trial about defendant’s adeissions to him; and Avitto aeserts that he lied when he said that he received no benefits in return for his testimony, because he allegedly received assistance in staying out of prison on several occasions when he faltered in his court-mandated treatment prograns and faced the jail alternative of his third-degree burglary sentence. 6. More specifically, defendant asserts that, prior to defendant’s trial, in return for Avitto’s cooperation with the prosecution, 1 personally intervened in Avitto’s case in June of 2005 to facilitate the vacatur of a warrant for Avitto's arrest, which warrant had been issued after Avitto left his drug treatment program and relapsed into cocaine use. Defendant also alleges that I either created or caused to be created a false record, Signed with the name of Avitto’s EAC-LINK drug counselor, sean Ryan, to be placed in Avitto’s file, which document allegedly hid the fact that Avitto had been terminated from a drug treatment program two days before he testified at defendant’s trial because he had brought in and distributed cigarettes in violation of that Progran’s rules. Defendant also alleges that I elicited testimony from Avitto that I had reason to know was false and that I failed to correct that testimony. 7, dispute defendant’s allegations of wrongdoing in connection with the prosecution's dealings with John Avitto. 8 I did not take or promise to undertake any actions on Avitto’s behalf that were intended to constitute a benefit in return for Avitto’s cooperation with the prosecution at.defendant's trial, and T did not suggest to Avitto in any way, at any time, that “actions would be taken on his behalf with respect to his burglary conviction. 9. On more than one occasion, Avitte stated to me that he was not seeking any benefit from the People in return for his cooperation and testimony at defendant's trial. Avitto informed me, in essence, that he wanted to do what was right. avitto acknowledged to me that he was @ career criminal with a drug problem, but he asserted that he did not hurt people and that he thought what defendant had done to Mark Fisher was wrong, and that this was the reason he had come forvard to offer to assist the prosecution at defendant's trial. 10, Avitto informed me of inculpatory statements that he said that defendant had made to him while they were both innates at Rikers Island, Defendant's statements that Avitte recounted including an admission to being present along with two others when Mark Fisher was killed, and to personally pistol-whipping Mark Fisher before one of defendant's companions took the gun and shot Fisher -- were consistent with other evidence in the case of which IT was aware, including the fact that Mark Fisher’s body had bruising to the face and hands, which indicated that he had been in a fight before he was shot.11, My only court appearance with respect to Avitto’s on third-degree burglary conviction occurred on June 13, 2005, the day on which Avitto cane to the Kings County District Attorney's Office for the first time. On that date, Avitto was represented by counsel from the Legal Aid Society and the court acknowledged on the record that Avitto was voluntarily returning on the warrant. The court stated that the LINK progran was going to find another program for Avitto, and that the court knew that it would be easier for LINK to find a program for Avitto if he was not incarcerated. The court asked Avitto to cooperate with LINK and Warned Avitto that tf he did not cooperate with LINK, then the court would have no choice but to put him back in jail. The court thereafter released Avitte on his own recognizance. I did not say anything to the court at that appearance, either on the record or off the record, to influence the court's treatment of Avitto’s case or to influence the court's decision to give Avitto another chance to participate in a drug treatment program rather than to incarcerate him at that tine. 32, At no time did I create or cause to be created any Violation letter bearing the signature “Sean Ryan” regarding avitto’s case.13, Avitto did not give any testimony at trial that, at that tame, I believed to be false, or that I now believe to have been false. 14. If the court orders an evidentiary hearing on defendant's motion to vacate the judgment, T could explain in further detail any matters involving my dealings with John Avitto. BSNQy Anna-Sigga Nicolazzi Assistant District Attorney (718) 250-2140 Date: Brooklyn, New York May 21, 2015EXHIBIT 80 be argued by DIANE R, EISNER SUPREME COURT OF SHE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT THE PEOPLE OF THE STATE OF WEW YORK, | apperiate pivision Docket Number Respondent, | Docwet Num eae | Kings County Indictment Number JOHN GEUCA, . | s166/oa Defendant-Appellant EEONARD JOBLOVE DIANE R. EISNER Assistant District attorneys ‘of Counsel way 16, 2008 CHARLES J. HYNES DISTRICT ATTORNEY KINGS COUNTY. [RENAISSANCE PLAZA 350 JAY STREET. BROOKLYN, NEW YORK 11202908 5 250-2000‘TABLE OF CONTENTS PRELIMINARY STATEMENT STATEMENT OF FACTS . Introduction ....0.. 00) a The Pre-Trial Molineux Ruling. The Trial we ‘The People's Case | The Night Of October 2003 and The Murder of Mark Fisher .. The Early Stages Of The Homicide Invest ation vee. Events Subsequent To the Murder And Both Defendante! Cover-Up Efforts Seana eee een : Mark Fisher's Friends Do Not Know His Fate and Search Por Him seeeeses ce Sooner Ba The Identification Of Mark Pisher's Body and the Subsequent Investigation . 5 : Trial Testimony About Defendant's Gang Affiliation and His Relationship with Co-Defendant Russo - ert Defendant's Admission To A Fellow Innate Defendant's Case The Verdict and sentence porwr r - DEFENDANT'S CLAIMS THAT THE PROSECUTOR EXCEEDED ‘TE BOUNDS OF THE COURT'S MOLINEUX RULING, TMPUGAED DEFENDANT'S RIGHT TO COUNSEL AND DENIGRATED DEFENSE GOUNSEL, “SANDBAGGED THE DEFENSE,“ IMPROPERLY APPEALED TO SYMPATHY, AND IMPROPERLY INSTRUCTED THE JURY ON 7 LAW OF FELONY MURDER, ARE ALL UNPRESERVED FOR APPELLATE REVIEW AND ENT: MERITLESS Seen 2 2 2 4 a ct 12 18 a9 26 30 33 35| | | i 1 | | i i | | | | | ‘TABLE OF CONTENTS (cont'd) A, The Prosecutor's Opening statement Was In Compliance With The Court's Molineux Ruling sees... ss ee ‘i B. The Bvidence Blicited By The Prosecution Did Not Exceed The Bounds Of The Court's Molineux Ruling » see 40 €. Defendant's Claims That The Prosecutor (1) Placed Undue Weight On The Gang-Related Evidence, (2) Impugned Defendant's Right To Counsel And Denigrated Defense Counsel, (3) "Sandbagged" The Defense, (4) Improperly. Defined Felony Murder, and (5) overstepped Rhetorical Bounds In Her Summation are Similarly Unpreserved and Meritiess. Goae Se eeenneeneeentrs ry 1. The Prosecutor Did Not Place Undue Weight on The Gang-Related Evidence .... ate era 2. The Prosecutor Did Not Impugn Defendant’s Right To Counsel Nor Did She Denigrate Defense Counsel ss... 47 3, The Prosecutor Did Not *sandbag" The Defense By Arguing That Defendant Might Have Fired Shots At Mark Fisher 0... Pee etter eetaaeteevn nes B2 4. The Prosecutor Did Not Mislead The gury About she Elements Of Felony Murder anes Senet 5, Defendant Was Not Prejudiced By The Prosecutor's Rhetoric In Summation ....... 63-~nvousntcnn cnn nnnasnseeiasssnseencenoms Certificate of Compliance... TABLE OF CONTENTS (cont'd) POINT Iz ~ DEFENDANT’S CLAIM THAT ‘THE COURT ERRED IN FAILING 70 GIVE LIMITING INSTRUCTIONS REGARDING THE GANG-RELATED EVIDENCE AND CERTAIN CONSCIOUSNESS-OP-GUILT EVIDENCE IS UNPRESERVED AND MERITLESS. MOREOVER, BECAUSE THERE WAS NO NEED FOR LIMITING INSTRUCTIONS, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO REQUEST POINT IIT ~ DEFENDANT’ CLAIM THAT THE COURT SHOULD HAVE STRICKEN DEFENDANT’ REMARK ABOUT GANG MEMBERS HAVING TO ‘GHD A BODY" BECAUSE THAT CONMEN? SUGGESTED “PRIOR MISCONDUCT” AND WAS IRRELEVANT TO THE FELONY .MIRDER CHARGE IS, FOR THE MOST PART, UNPRESERVED FOR APPELLATE REVIEW. MOREOVER, THE COURT PROPERLY REFUSED TO SYRIKE THE TESTIMONY BECAUSE 11S PROBATIVE VALUE OUTWEIGHED I'S PREJUDICE. . ONCLUSION - DEFENDANT'S JUDGMENT OF CONVICTION SHOULD BE AFFIRMED IN ALL RESPECTS Se eee eee Page 65 7 - 82 a3SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, | appellate Division Docket Number Respondent, | Dooe®t sue eel Kings County JOHN GIUCA, Indictment Number Bi66/04 Defendant-Appellant . RESPONDENT’ S BRIEF PRELIMINARY STATEMENT Defendant, John Giuea, appeals from 2 judgment of the Suprene Court, Kings County, rendered on October 19, 2005, convicting him, aftor a jury triel, of one count of Murder in the Second Degree (P-L. § 125.25[3]}, one count of Robbery in the First Degree (P.L. § 160.15[2]), and one count of Criminal Possession of a Weapon in the Second Degree (P-L. $ 265.03{1}(b}}. Defendant was sentenced to concurrent terms of Amprisonnent of twenty-five yeazs to life, twenty-five years, and fifteen years, respectively, and to a period of five years of post-release supervision (Warrus, J., at trial and sentence). Defendant is currently incarcerated pursuant to this judgment. There was one co-defendant at trial.’ 1 co-defendant Antonio Russo has not yet perfected his appeal.STATEMENT OF FACTS Introduction At about 6:40 a.m. on October 12, 2003, in the vicinity of 150 Argyle Road in Brooklyn, defendant, acting in concert with co-defendant Antonio Russo, participated in the azmed robbery of nineteen-year-old Mark Fisher. Fisher was shot five tines Guring the robbery and died from his wounds. For these crimes, defendant was charged by Kings County Indictment Wunber 8166/2004 with two counts of Murder in the Second Degree (Pb. § 125.25 [1], (31), one count of Manslaughter in the First Degree (P.L. § 125.20{1]}, two counts of Robbery in the First Degree (P.b. § 160.15(11, (21), one count of Robbery in the Third Degree (P.L. § 160.08), and one count each of Criminal Possession of a Weapon in the Second, Third and Fourth Degrees (P-L. $$ 265.03(2), 269.0214, 265.01{1)). The Pre-Trial Molineux Ruling The prosecutor sought permission to elicit evidence that defendant and co-defendant Russo belonged to a gang called the “Ghetto Mafia” or "GM" for the purpose of establishing that dofendant held a higher position within that gang than Russo. The prosecutor asserted that the evidence was relevant to “both giving the gun and telling (Russo) what to do with it,” and to show that Russo “would listen to anything that he was told by[defendant}” =~ matters relevant to the acting-in-concert charges. The prosecutor also sought to elicit, with respect to motive, a statement defendant made two weeks before Fisher's murder about defendant’s gang “getting soft” and about discussions defendant had had with a co-leader of the gang about implementing a rule that members of the gang would have to commit a homicide. The prosecutor further sought to elicit evidence that the geng had meetings, wore certain colors, and had initiations. The prosecutor did not seek to elicit “specific bad acts of the gang,” although she knew of drug activity, gun possessions, and shootings by defendant (Pretrial Motions Transcript dated dune 26, 2004 [hereinafter “Pretrial Teanseripe”] at 12-15, 43-45). The attorneys for defendant and co-defendant Russo objected that the probative value of the evidence was outweighed by its prejudice but the court disagreed, ruling that while gang membership is not admissible when incidental to the charged crime, it is adwiseible when it is dixectly Numbers in parentheses refer to the pages of the trial transcript. Names preceding the numbers refer to the witnessesThat night, Mark, Christopher, Jackie and some other Fairfield students all went to “Bar Harbour,” a bar on the upper east side of Manhattan (Peters: 195-98). At about 11:00 p.m., ANGEL DEPIETRO, another Fairfield student, also showed up at “Bar Harbour” with a group of girlfriends from Long Island including twenty-year-old MEREDITH DENIHAN, a student at a different college. Angel had made plans to mest AL CLEARY at the bar. Al, a Fordham student and good friend of angel's boyfriend, knew the city and was going to show the girls sone good places to go (Denihan: 136-39; Peters: 197) DePietro: 205~ 07; Cleary: 244-46). Angel’'s group bumped into the Fairfield group at the bar, where Mezedith Denihan hit it off with Mark Fisher, Meredith and Mark remained at the bar, talking and drinking, while the Fairfield group went for pizza and Angel’s group went to “rin Lizzie,” another bar. Subsequently, Mark and Meredith went to the pizzeria (Denihan: 141-46, 148, 185, 187-867 Peters: 198-99 DePietro: 207-09, 224-27) Cleary: 246-47). The Fairfield group then decided to go to “Martell’s,” another bar. Christopher, Jackie, and two others shared a cab, expecting Mark and Meredith to follow them there (Peters: 200). However, Meredith called angel, learned that she was at “Tin whose testimony is being cited. Numbers preceded by “S." refer to the pages of the sentencing transcript.Lizzie,” and she and Mark went there instead. Angel, whose ID had been rejected, was outside along with Al Cleary and some of Al's friends, including defendant (Denihan: 144-45; DePietx: 210; Cleary: 248-50). Angel was worried when she saw that Mark was still with Meredith because Mark was now separated from the friends with whom he was to spend the night and Mark appeared to be drunk. At about 3:30 a.m., Al’s mother called him and told him to cone home (Denihan: 144, 149, 187-89; DePietro: 210, 225-27, 244: Cleary: 248-50, 263, 285-86). Meanwhile, Christopher and Jackie, who had been waiting at “Martell’s” for about an hour for Mark to show up, finally gave up and decided to retuzn to New Jersey. Because Mark did not have his cell phone, they weze unable to tell him that they were leaving (Peters: 200). Angel and Meredith were also concerned about getting home, having missed the last train back to Garden City. Al Snviced Angel to spend the night at his house and, after checking with her boyfriend, Angel agreed. angel invited Meredith to join then and take the train home the next morning. Mark borrowed Angel’s cell phone and called his friends, but he could not reach then. Meredith was concerned about leaving Mark alone and, at some point, Angel stopped a cab, but Mark did not have much money and he did not know Jackie's address in New Jersey.Mark then asked Angel if he could spend the night where she was going (Denihan; 145-46, 189; DePictro: 211-12, 2277 Cleary: 249, 286). Defendant then proposed that everyone return to his house because his parents were avay. The group agresd, defendant and AL bought beer, and everyone shared a cab to defendant's Brooklyn home, arriving there at about 4:00 a.m. (Denihan: 146- 47, 149; DePietro: 212, 227; Cleary: 250-51, 271, 284, 286-88). The group entered defendant's Living room but defendant moved everyone to the den because his mother was particular about her living room. Meredith called hone to tell her mother where she was and, at about 4:40 a.m., Mark called Christopher’ s cell phone but got no answer. Mark left Angel's cell phone number in a message asking that Christopher call hin. Christopher, who had already gone to sleep, did not get this message until he awoke (DePietro: 2137 Peters: 201; Cleary: 251- 52). Defendant served wine and beer and, at some point, defendant’s younger brother joined evezyone. About one-half hour after arriving at defendants home, Angel fell asleep on the couch. At some point, someone came to the door. Al, vho was playing “Brooklyn tough guy” for Mark's benefit, said, *(r)his may be a problem, we got problens vith people in the neighborhood,” but Mark simply replied, “Even though I don’tknow you, I got your back.” Actually, tho of defendant's Eciends vere at the door, Arty Grineky and Tony Saleh, and they Joined everyone in the den. At some point, Mark, wha was drunk, sat down on a table. Defendant asked Mark to move and when Mark said that he was fine, defendant and Tommy insisted, strongly, that Mark move to a chair, which he did. About five minutes later, another friend of defendant's, co-defendant Tony Russo, arrived. Russo, @ heavy-set Hispanic-looking man with braided hair, walked over to Mark at sone point and said, “Hey yarmulke” (Deniha 147-81, 185, 190; DePietro: 213-15, 2287 Cleary: 252- 54, 256-57, 272, 276-78, 284, 289-90, 304-05, 306). Meredith talked with defendant about how Brooklyn was nicer ‘than she had imagined but defendant warned her that there were bad areas and he told Meredith that, “you have to protect yourself,” and thet both he and his younger brother had guns in the house. When defendant removed his shit, Meredith saw that 152, 184-89, he had “Brooklyn” tattooed on bis asm (Denihan: 183-84, 190, 193). Sonetine that night, defendant showed Al a .380 handgun and bullets for that gun that defendant had in his bedroom. Al noticed that the .360 bullets vere fatter than the .22 caliber bullets that defendant had showed him the week before, when defendant fired a .22 caliber Ruger pistol into a pile oftelephone books in his closet to show Al how the bullets looked after being fired (Cleary: 266-67) At some point, the group went outside to defendant’ s porch off the den, Someone rolled a marijuana cigarette and defendant, defendant's brother, Al, Meredith, and co-defendant Rosso began to smoke. Al believed that at some point Meredith requested the drug Ecstasy. Al also recalled that Mark wanted to smoke but that defendant told him to get some money. Mark replied that he had an ATM card and defendant sent Russo with Mark to get money. They zeturned about five minutes later (Benthan: 1527 Cleary: 253-55, 273-14, 279-80, 307-08). Al eventually dropped off to sleep near Angel on the couch. At about $:30 a.m., Al woke Angel and told her they should go back to his house. Angel did not see anyone in defendant's house when they left, but she did not look at the porch.’ Angel and Al watked the few blocks to Al’s house, where Al gave Angel sone clothes and the guest room before he went to sleep in his own room (DePietro: 215-18, 2287 Cleary: 253-85, 281, 302-03). Meredith, who had been in defendant’s bathroom for sone time, calling friends to see if she could get someone to cone and get her, returned to the porch to find that Angel, Al, and ‘Tt was Al's recollection that he went out to the porch and told Meredith that he and Angel were leaving before they left (Cleary: 281).Mark were all gone. Defendant told Mezedith that if friends came for her, he would give then Ecstasy pills. when Meredith asked whore Mark had gone, defendant told her that Mark had gone to an AIM, After Meredith expressed surprise, defendant jokingly said, “yes, he went to an ATM but you never know what happens when you go to an ATM in Brooklyn.” Defendant told Meredith that Angel had gone to Al's house. Defendant also told Meredith that he did not want Mark in his house anymore and that he wanted to kick him out. Meredith then tried but could not reach Angel by phone (Denihan: 153-54, 157-58, 184, 190-92). Meredith recalled that sometine after Mark returned with co-defendant Russo there was some discussion about how Mark would get a train to New Jersey (Denihan: 154-55, 158). At some point, Mark asked defendant when “it wae going to kick in’ and Meredith asked Mark what he had taken, Mark told Meredith that he had taken a Clozapine ox Darvecet, some kind of pain killer, and defendant told Mark that it wold start to work in about five minutes (Denihan: 159, 191). Defendant's friends Arty and Tommy then left. Mark went back inside to the den, where he fell asleep on a couch. Meredith wanted to sleep there too but Mark took up the entire length of the couch so she went to the living room to make some nore calls to try to find a way home. Unsuccessful, Meredith fell asleep on a couch in the living room at about 6:00 a.m. 10Defendant, his brother, and co-defendant Russo were still outside on the porch at that time (Denthan: 159-61) . It was still dark outside at about 6:40 a.m., when EDWARD SCHOENFELD, who lived at 145 Argyle Road, near Al Cleary’s house, heard five startlingly loud gunshots. Schoenfeld, who had been awake, heard three shots first, then a pause, then two more shots (Schoenfeld: 128-28, 131-36). The shots sounded so Close by that Schoenfeld had ducked, but he quickly rose and called 911 (Schoenfeld: 129, 135). Officer DILLON STEWART and fellow officers thereafter located the body of a man who appeared to be dead, lying face~ down on the ground on Argyle Road. Schoenfeld did not recognize him (Schoenfeld: 130-31, 132-34 stewart: 736-39) . The Barly Stages Of The Homicide Investigation Homicide Detective JAMES GAYNOR responded to the front of 150 Argyle Road at about 8:00 a.m., where he found a man’s body with abrasions to the forehead, bridge of the nose, chin, right cheek, and back of the right hand. The man’s rear pants pocket had been torn and some buttons had been torn off his shirt. When the shirt was removed, Detective Gaynor saw seven gunshot wounds to the torso. Theze was no identification on the body but Detective Gaynor found, in the pants pocket, an ATM receipt for a twenty-dollar withdrawal at 5:23 a.m. from a store on Beverly Road and Coney Island Avenue. There were two .22 uucaliber shell casings on the ground near the body and a blanket with a lion emblem around the man’s feet (Gaynor: 367-73, 393 400, 402-03, 410; Stewar 739) Detective JOSEPH LUPO of the Crime Scene Unit arrived at about 9:00 a.m. He photographed and diagraned the body and the area. No latent fingerprints were recovered from the shell casings (Lupo: 87-100, 104-06, 103, 112-14). Events Subsequent To The Murder And Both Defendants’ Cover-Up Efforte At about 7:00 a.m. that same morning, ALFREDO BETHUNE had gotten a call from Marie antiago, his ex-nother-in-law, asking him to come downstairs to her apartment. Co-defendant Russo, who had always worn his hair in long braids, was there and he wanted his hair cut immediately. Russo was nervous and said that he was going to California. Bethune cut Russo's hair and Left (Bethune: 709-12). GREGORY WARE, a friend of defendant’ s and Russo's, saw Russo that morning and burst out laughing because Russo had no hair (War 674-78). Meredith Denthan awoke in defendant's house at about ten or eleven aim. She had heard nothing after falling asleep, except for the sound of a screen door slamming. Meredith did not see anyone on the first floor of the house and, after her sister failed to answer her call, Meredith decided to leave and try to find her way home (Deniha 161-64, 181, 193). Meredith walked 12a few blocks and found an ATM and a car service to take her home (Denihan: 164-65) After Al Cleary awoke at his house, his mother told hin ‘that there had been a shooting and that a body had been found on a driveway on the bicck. Al received a call from defendant later, asking if Meredith was with Al. Al said that she was not and when he mentioned the shooting, defendant said, “oh well, we might have had something to do with that.” Al asked defendant what he meant but defendant simply told Al to find out where Meredith was. when Al asked about Mark, defendant said that Mark vas fine and that he had taken @ train hone (Cleary: 256, 270, 290-91, 314-16). When Angel awoke at about 11:00 a.m., Al told her that defendant was wondering where Meredith was. Angel suggested asking if Meredith was with Mark and Al repeated to her what defendant had said about Mark leaving (DePietro: 219; Cleary: 270). Defendant made subsequent calls to Al to find out where Meredith was, Defendant could not believe that Meredith had found her way home on her oun and defendant told Al to “make sure that someone spoke to her.” Al asked again about Mark and this time defendant said, “Tony kind of left with him, if you ienow what I mean.” Defendant told Al to make sure that Angel reached Meredith and to call him back when she did. Al madeefforts to hide his concerns from Angel for the rest of that day, although Al now suspected that Mark vas dead (Cleary: 270, 291-95, 314-17). ‘That day, defendant called his good friend ANTHONY BEHARRY and asked for a favor. Defendant gave Anthony a gun to dispose of and Anthony did as defendant asked, leaving the gun on a street comer, where it was picked up and money left in exchange -- which Anthony subsequently gave to defendant (Beharry: 647- 51). Also on that Sunday, Angel and Al cleaned Al’s garage before leaving for Angel’s house. Angel had been unsuccessful in reaching Meredith and Al had been keeping defendant informed of her efforts. gust as Al and Angel got off the train in Garden City, defendant called and told Al that police would be coming to question Al and that if they did, Al should say nothing and just ask for his attorney. Defendant repeated this instruction three tines. Al hurried defendant off the phone because he now knew for suze that something was wrong and he did not want to worry Angel. Angel eventually learned that Meredith had taken a taxi hone. ‘That night, Angel reached Meredith and found out that Mark was not with her (DePietro: 219-21, 228-29; Cleary: 256, 290-91, 315, 218-19). Jater that night, Al retuned to Brooklyn with angel and Angels boyfriend. Al snuck out of his house to see defendant 4and find out what was going on. Defendant was at home azguing with his girlfriend, LAUREN CALCTANO. when defendant asked Al how Meredith had found a cab hone, Lauren snapped that defendant had probably called the cab for her while they were in bed together (Cleary: 319-20, 339). Defendant thereafter told Lauren what had happened the night before. Defendant told her about meeting people at a bar and about everyone coming to his house because his parents were away. Defendant told Lauren and AL that, “all of @ sudden,” co-defendant Ruseo had come up to him and told him that he “wanted to rob Markl.” Defendant said that Russo thought that Mark cane from money and that he was cocky. Russo asked defendant for a gun and defendant gave it to him. Defendant said that before Mark left, Mark had gone to get a jacket from the closet and that defendant had told hin, © don’t know you, I’m not giving you @ jacket, take a blanket from the couch, T have a lot of then.” Defendant said that Mark took a blanket and that he and Russo left together. Defendant told Lauren that Mark needed to go to the ATM machine because he had spent all of his money and had no money to get home (Calciano: 581-82, 605-11, 626). Defendant said that the next thing he knew, he heard sirens heading towards Argyle Road. Al said something about the matter bably being in the paper and Al also said, “I don’t even know if he is alive.” Lauren thought that Al looked “wrecked” and asvery upset but that defendant seemed only slightly nervous. Lauren then left while Al remained with defendant (Calciano: 982-83, 606, 611-12).° At some point, Al and defendant went upstairs. Defendant was upset and said that he did not know df Mark was alive or dead. Defendant said that he hoped Mark was alive because Mark could clear his name by telling people that he had been shot by @ Hispanic guy, not a white guy. Defendant said that he regretted giving Russo the gun and he added, “tony, I told him to do one thing, he does another and, you know, I really hope he didn’t do something stupid here.” Defendant told Al that he had been annoyed with how Mark had sat on the table, “disrespecting the house,” and how Mark had been behaving in a drunken fashion all night. Defendant said that he had gotten fed up with Mark and that he had told Russo to show Mark “what's up.” At that point, Russo had asked for defendant's gun and defendant had given it to him, Defendant told Al that Russo had gone outside to wait on Turner Place, down the road from defendant's house, and that defendant had sent Mark outside, leading him out the door. Defendant said that Russo jumped out and started beating Mark, but that Mark fought back. Russo then shot Mark, beat him some more, and then shot him again -- thereafter returning the 5 Al testified that he saw Lauren remove a gun bag from defendant’s house, but it was unclear when this observation took place (Cleary: 331). 16gan to defendant and telling him that “it was done” (Cleary: 320-24). AL then told defendant that Angel's friends had been calling, trying to find out where Mark was, and that Al did not know what to say to them. Defendant, who was unaware up to that point that there was a school connection between Angel and Mark, was taken aback by that news. Al then told defendant that he had a family friend who was an attorney and Al euggested that defendant call him (Cleary: 323, 328). After Al returned hone and Angel's friends called again, Al gave then the precinct Phone nunber (Cleary: 324, 338-42, 358). on Monday, Al went to defendant's house, wheze they looked at the newspaper to see if there was a story. Defendant again said that he wished that Mark was alive and he kept telling Al that he did not kill Mark and that, “this is not going to fall on me.” Defendant was worried that the police were going to come to talk to them and when Al asked if the house was “clean,” defendant told him that Anthony Beharry had taken the guns. Defendant also told Al that he had put bullets outside on his roof and that he had to get then out of there. Defendant cleazed then from the roof gutter and flushed then down the toilet. The bullets appeared to be the .22 bullets that Al had seen the week before because they were longer and skinnier than uvthe .380 bullets that defendant had showed Al on Saturday night (Cleary: 326, 464-65). Defendant told Al that he did not have to talk to the police but defendant nevertheless practiced a story with Al. Defendant told Al to say that defendant had fallen asleep on the back porch, that Mark woke defendant and said that he wanted to go home, and that defendant took Mark to the front door and pointed him towards the Church Avenue train station. Defendant also wanted Al to eay that after defendant closed the door, AL saw Meredith sleeping on the couch and he saw defendant go upstairs to bed. then police officers cane to talk to Al the next day, Al gave the pre-planned story (Cleary: 327-28). Mark Fisher's Friends Do Not Know His Fate And Search For Him While all of these events were unfolding in Brooklyn, Mark Fisher's friends did not know where he was and they were worried. Christopher Peters had gotten Mark's message when he auoke on Sunday and he had called Angel’s phone, but he had gotten no response. Christopher and gackie thought that Mark must have returned to Fairfield University by train and they decided to return too, but Mark was not there (Beters: 201). Angel’s roommate Kate eventually reached Angel, who said she thought Mark had gone hone. Eventually, Kate got in touch with a friend who had heard of a murder in Brooklyn. 18Christopher Peters called his friend, CHRISTOPHER DENEEN, a Fairfield student who lived in Queens, and he got Deneen to call the precinct in Brooklyn. Deneen did but was told that the dead man was not Mark (Peters: 202; DePietro: 222-23; Deneen: 241~ 4). On her way back to school that night, Meredith learned from Angel that Mark was missing and that everyone was worried (Denihan: 166). The Identification Of Mark Fisher’s Body And The Subsequent Investigation Detective Gaynor received Christopher Deneen’s call, reporting that Mark Pisher had gone to the city the night before land had not been heard from since. Detective Gaynor contacted Fairfield University, got in touch with Mark’s parents, and, at 2:00 a.m. on Monday, October 13%, he and ancther detective went to Mark’s home in Andover, New Jersey, where Mark's parents identified him from a photograph (Gaynor: 374-755 Fisher: 362~ 63). Later that day, they also identified Mark's body at the morgue in Brooklyn (Fisher: 364-66). De. Charles Catanese performed the autopsy and wrote a report. He found that Mark, who was nineteen years old, was six-feet three-inches tall, and that he weighed two hundred and Hive pounds. Five gunshots had pierced Mark's torso and right arm: two entering his back, one entering the right side of his asabdomen, one entering his right shoulder, and one his right arn. Mark also had abrasions and contusions on his forehead, nose, chin, and cheek, and to his right hand and thumb. Several small caliber bullets were recovered from Mark's body during the autopsy. Alcohol and a stimulant drug were found in blood and tissue samples. The various bullete had bit Mark's left and Hight lungs, his heart, esophagus, and Liver -~ thereby causing his death. Based upon this report, Mark’s death was ruled a homicide (Dr. JOACHIM GUITIERREZ: 025-32, 825-37, 629-40, 842). Meanwhile, Detective Gaynor informed Mark's friends at Fairfield that Mark had been murdered and he conducted 223-24; Deneen: 241; interviews there (Peters: 202-03; DePietr Gaynor: 375). Later, Angel informed Meredith and Al that Mark had been murdered and Al reported back to defendant what he had heard (Denihan: 167-68; Cleary: 350-51). That same day, Meredith contacted police in Brooklyn because she knew that she had been one of the last people to see Mark (Denihan: 167-68). That night, Al went with defendant to meet with Phillip Smallwan, the attorney that Al had mentioned to defendant (Cleary: 328-29). on Tuesday, October 14M, defendant's gizlfriend Lauren visited him again. Defendant told Lauren that he had a “funny Feeling” that “everybody that was there” was going te be called in for questioning. Defendant was out with Lauren when his 20mother called, telling him that five detectives were at the house and were leaving to get a search warrant. Defendant initially dia not want to go home. He then agreed to go to the precinct and Lauren drove him there (Calciano: $84-85, 615-18, 624-25, 627).° Detective DENNIS MURPHY was speaking with co-defendant Russo at the 70™ precinct because he had learned that Russo was at the party. Defendant’s stepfather, Frank Giuliano, was waiting for defendant at the precinct. While defendant and Giuliano were waiting in an office near the detective squad, Detective Murphy overheard Giuliano ask defendant “what happened this weekend,” and he heard defendant say, “let me see what they have, and see what they offer me” (Murphy: 466-69, 474-75, 478— 85). Meredith Denihan had flown back to Brooklyn on Tuesday and had spoken to Detective Gaynor. The next day, she gave an audiotaped statement about what she knew to an Assistant District Attorney (Denihan: 186-57, 169-61; Gaynor: 376). Sometime after Tuesday, defendant told his girlfriend Lauren that she might also be called in for questioning, even though she was not at the party. Defendant told Lauren not to "Defendant's mother identified the blanket found at Mark's feet as one that had been in her home (Gaynor: 387, 410-11, 414). aworry because she knew attorneys Sam Gregory and Lance Lazarro (Calciano: 585).” Lauren was first questioned on Wednesday, October 15th 2003, but she did not tell detectives what she knew. Nor did she divulge what defendant had told her when she was subsequently questioned on three occasions (Caleiano: 587-88). CRYSTAL VALENTIN, co-defendant Russo's girlfriend, who had been away at a religious retreat on Columbus Day weekend, Lied to the detectives she spoke to initially, telling them that she had been with Russo. Valentin lied because she was pregnant with Russo’s child, she did not want him to go to jail, and she also feared him (Valentin: 495-505, 520-24).* During the course of his investigation, Detective Gaynor spoke with defendant, co-defendant Russo, Angel DePietro, AL Cleary, Arty Gninsky, Tommy Saleh, Gregory Ware, Anthony Beharry, Janes Petrillo, Scott Powers, the Wenzel brothers, Lauren Caleiano, and Crystal Valentin (Gaynor: 376-79, 402) When Al Cleary spoke with the police shortly after Mark's murder, he gave the story that he had prepared with defendant. sam Gregory represented defendant at trial. * on cross-examination, co-defendant Russo's counsel questioned Valentin about her interviews with A.0.A.8 and about a drug- related arrest of hers. Valentin asserted her innocence (Valentin: 511-19). She subsequently testified about statenents made by co-defendant Russo that were only heard by Russo's jury (Valentin: 529-64). 2However, when police returned two days later and asked Al if he had ever seen defendant with a gun, Al agreed that he had. Al made this admission because it was known by others in the neighborhood that Al knew about defendant’s gun and Al thought that a lie about this might be easily disproved. Al did not want the police to disbelieve what he had told them about Mark waking defendant and defendant letting Mark out and directing him toa train station (Cleary: 333-36, 353). Daring the course of Detective Gaynor’s investigation, he spoke to many people in different states. He also ordered the telephone records of anyone who may have attended the pasty and ‘the telephone records of their friends to see with whom those people had been in contact (Gaynor: 279, 403-04). Despite all of the interviews and tests, including gunpouder residue tests, hair and fiber tests, and tests for DNA on Mark's nail clippings, no suspect developed immediately (Gaynor: 380-21, 406). on october 24", Mark's wallet, containing his identification and two quarters, was found in a sewer at the corner of Turner Place and Stratford Road (Gaynor: 361-83). * Detective MARK BASOA, a ballistics expert, determined that the shell casings recovered on Argyle Road were .22 caliber and that both had been fired from the same weapon. He also examined the deformed bullets taken from Mark's body and found them to be .22 caliber. Markings indicated that the bullets probably came from the same weapon but, because of the deformities, that could not be determined with certainty. Tha bullets could have been fired from a Ruger .22 caliber pistol (Basoa: 848-56). 23Al continued to give his prepared story over the next few months despite being pressed by police, who knew about Al's Previous youthful offender adjudication and ais probationary status -- the result of Al's having participated in beating two people after a drunken bar fight three years before (Cleary: 268, 273, 346-49). Al knew that he faced the revocation of his probation and he took a lie detector test, after which he was left alone for awhile. However, the police returned to him and stepped up the pressure (Cleary: 338-39, 342-43). In January or February of 2004, Anthony Beharry visited co- defendant Russo at Rikers Island. At one point, Russo made a gesture with his hand that looked like a gun and Russo asked Beharry, “did you take care of that? Did you do me that favor” (Beharey: 654-56, 663-64). In May of 2004, Detective JAMES McCAFFERTY joined the investigation, reinterviewing people and checking telephone records. Defendant’s and co-defendant Russo's cell phone records showed that from 5:13 a.m. on October 12, 2003 through the end of October 14, 2003, defendant and Russo had placed twenty-six calls to each other. By contrast, between October 9” and 11", they had each placed only two calls to the other. Detective McCafferty also found that defendant placed several, calls to Anthony Beharry between October 12" and 14%, and that at 6:42 a.m. on October 12", about two minutes after the murder, 24defendant’ s brother Matt had called defendant (McCafferty: 863- 73). On the evening of July 5, 2004, Detective McCafferty was Present when defendant, who was being taken inte custody by a sheritt in Florida, asked, “Is there a warrant for my brother also?” (McCafferty: 867-68). At the sheriff's office, Detective Mccafferty overheard defendant, in a cell phone call to his mother, say “make sure that you call Tonny and Lauren” (Mccatterty: 868-69, 884). Detective McCafferty had already come in contact with Tony Salen and Lauren Calciano (uecafterty: 672). In November of 2004, over one year after the murder, Al Cleary, in the presence of his lawyers and menbers of the District Attorney's Office, gave an audiotaped statement to detectives in which he was honest. AL had b 8 subpoenaed to testify at the grand jury and he had been informed that he could be prosecuted for perjury if he lied. Al subsequently testified at the grand jury, as did Meredith Denihan (Deninan: 169-617 Cleary: 327-30, 342-43, 355). Lauren Calciano was also subpoenaed to testify at the grand jury in Wovenber of 2004. she, as well, gave an audiotaped statement to detectives and menbers of the District Attorney's office prior to her testimony in which she told the truth. on December 2, 2004, Lauren testified truthfully in the grand jury. 25She was aware that if she lied, she could be charged with perjury (Calciano: 587-88, 613, 616-19, 622-24, 627)" At some point, Anthony Beharry, who had not revealed nis role in disposing of defendant’s gun, made that admission and he received immunity from prosecution in exchange for his testimony (Beharry: 652-54) ‘Trial Testimony About Defendant's Gang Affiliation And His Relationship With Co-Defendant Russe Al Cleary testified that Tonmy Saleh and Arty Gninsky were very close friends of defendant's, but that co-defendant Russo was not as close to defendant. Al believed that defendant was you know, the boss and [Russo] would do whatever he said.” AL knew Russo almost as long as he knew defendant and Al knew thet James Petrillo and Anthony Seharry were other friends of defendant's in the area (Cleary: 257-58). ¥ Tauren acknowledged a long-time interest in a career in law enforcement and that the police knew about her application for a job with the U.S. Mazshal’s Service. Lauren also acknowledged that in the fall of 2003, prior to October, her relationship with defendant had been strained by allegations of infidelity on both sides (Calciano: 989-91, 601-02). In her original statements to police, Lauren had said that defendant did not trust her and that he would not have gaid anything in front of her (Calciano: 592). Lauren already knew of a reward by the spring of 2004, but she was not interested and never sought a reward at any time (Calciano: 596, 619-20). ™ Anthony acknowledged a close friendship with lauren and he recalled her telling him at some point that detectives hed told her that she would never become a U.S. Marshal if she did not do what they wanted (Beharry: 657, 661) 26Al testified that defendant had told him of a gang called “GM” or “Ghetto Mafia,” which had evolved from a sect of the Crips that defendant and his friends jolned in high school. Defendant had told Al that Rob Legister founded and was the head of the GM, and that the members wore orange as their color. The brothers Billy and Jesse Wenzel were also members of GM. Defendant had told Al that he, “fom,” and “Greg” were “capos” in the group. The group had meetings that Al, a non-member, was not allowed to attend -- some of which were held near co- defendant Russo’s house. Al had seen defendant, Russo, and ‘Tommy Saleh wearing orange beads on occasion. Al was never a member of GH but he was friends with people who were. Al knew that Russo was “not a capo” in the group and that defendant was “higher than him” (Cleary: 259-62, 265, 274-75, 305). AL had heard a rap song that had been remixed to change its words to include references to GM (Cleary: 263-64). Al testified that he sometimes “hung out” with co-defendant Russo because he wanted to be a part of Russo's group, but AL denied liking Russo and characterized him as “nuts” (Cleary: 345-46). Al never observed any initiation rite for GY or Ghetto Mafia but, when he and defendant were back in high school, AL al acknowledged on cross-examination that he hung out with co- defendant Russo, Tomy Saleh, Arty Gninsky, and defendant, that he wanted to be a part of their crowd, and that he displayed a “tough guy” persona to impress them (Cleary: 332-33). 20had seen an initiation into the Crips that involved the person being initiated standing in a square and fighting four people at one time (Cleary: 260) AL testified that about one or two weeks before Mark Fisher was murdered, Al had had a conversation with defendant in which defendant said that GM was “getting soft” and that defendant and Rob had been talking about “having to get a body before they got into Gu.” Al knew that “get a body” meant kill somebody (Cleary: 263, 276, 342). About one week before Mark's murder, defendant showed Al a -22 caliber Ruger pistol and some bullets that defendant had in his bedroom, Defendant fired the gun into a closet filled with telephone books and showed Al what the bullets looked like after being fired (Cleary: 266). cryatal Valentin, co-defendant Russo's ex-girlfriend by the time of trial, testified that she and Russo were dating in October of 2003 and that they saw each other every day at that time. Crystal had often seen Russo with defendant and she knew they were friends. Russo was also friends with defendant's brother Matt and he was best friende with Gregory Ware. Crystal had heard from Russo that he was a member of the group “OMC,” 5 Defense counsel elicited that Al knew of a reward in the case before he told police of defendant's statement about the Ghetto Wafia needing body, but Al denied having any interest in the reward (Cleary: 344, 356-60). 28which stood for “Outlaw Mafia Crip” and that the group wore the colors blue and gray. Sone members of the group wore beads, but Crystal never saw Russo with beads. Crystal, who was not in a gang, knew that gray was the “war color,” when there was going to be a fight. Russo had told Crystal of his gang initiation, during which he had had to stand in a square and fight (valentin: 495-505, 520-21) ." Leuren Caleiano testified that by October 2003, she had been dating defendant since nigh school, off and on, for about four years. Lauren knew defendant's family and friends, and she knew that some of the guys, including defendant, co-defendant Russo, and Tommy Saleh, called themselves GY and that they would go to “meeting{s].” Lauren had observed that these friends “all wore orange a lot” and beaded necklaces (Calciano: 567-71, 590). Lauren also knew that defendant’s younger brother was close to Russo's age, that those two spent time together, and that Russo Looked up to defendant, with whom he was close. Anthony Beharry was good friends with defendant and with Lauren (Calciano: 572, 577). “4 During cross~examination, co-defendant Russo’ _ counsel. questioned Valentin about interviews she had had with A.D.A.s, and about an outstanding arrest she had for selling crack cocaine, and about her prior marijuana use. Valentin acknowledged the arrest but maintained her innocence of the crack sale charge (Valentin: 511-19). 29GREGORY WARE, who admitted that he had shot soneone after a Fight in 2002, and who was one year into a seven-year prison term for attempted murder, testified that he was close friends with defendant, co-defendant Russe, Tommy Saleh, Robert Legister, Arty Gninsky and Anthony Beharry, all of whom were in a gang called GM or Ghetto Mafia, whose colors were orange. Before GM, the menbers of GM had been Crips and their colors were blue and gray, Defendant and Tommy Saleh were the leaders of GM and defendant was close with Russo (Ware: 668-73) ./* Defendant's Admission To A Fellow Inmate JOHN AVITTO testified that he was in the same dorm with defendant at Rikers Island and that he and defendant spent a lot of time together, playing cards and chess. Defendant told Avitto that he was going to court about a homicide, that he had been arrested a year before, released for lack of evidence, and thereafter rearrested (Avitto: 768-70). At first, defendant told avitto that he had a party and ran out of alcohol, but defendant said that he never left the party (avitte: 770). However, in February of 2008, Avitto overheard defendant talking to visiting family menbers. Avitto heard ® Gregory's testimony about the fight indicated that it had started at Anthony Beharry’s house, during a party. Gregory testified that the group that was fighting got kicked out of Anthony’s house. Gregory's testimony about the fight did not mention any involvement by any of the members of “GM” (Ware: 669-70). 30defendant's father ask defendant why he had the gun with him and he heard defendant reply, “I just had it” (avitto: 772-73).1¢ The next day, Avitto asked defendant why he had lied to him and Avitto mentioned overhearing defendant admit to having the gun with him. Defendant seemed shocked and the conversation ended (avitto: 774). Later, however, defendant told avitto that he and others were at the party, that they had run out of alcohol, and that they needed money. Defendant told Avitto that Mark Fisher (whom defendant referred to as “the deceased”) had offered to go to an ATM and get some money and that he had left with defendant and two other people. When Mark withdrew only twenty dollars, defendant got angry, pulled cut his gun and hit Mark on the eide of the head with it, causing Mark to fall. Defendant told Avitto that he and a friend then started punching and kicking Mark. After awhile, defendant’s friend grabbed defendant’s gun and shot Mark. Defendant did not tell avitto where this took place, what happened to the gun, or the nanes of the people with him (Avitto: 775-76) on ancther occasion, defendant was upset that his picture had been in the newspaper and on yet another occasion, defendant was angry after returning from court, telling Avitto that he thought someone he knew was “rating him out” (Avitto: 777-78). M Visiting records from Rikers island for defendant and Avitto were admitted in evidence (891). aLAvitto testified that he had been in Rikers Island on a burglary charge when he met defendant and that he subsequently pleaded guilty and received an eighteen to twenty-four month @rug-treatment program, with a promise that the case would eventually be dismissed if he succeaded in treatment. Avitto was also told that he would be sentenced to three and one-half to seven years in prison if he failed at the program. avitto admitted abusing cocaine and heroin for thirteen years and he acknowledged an extensive criminal record, which he said was related to his need to get money for drugs (Avitto: 178-84, 786- 800). At the time of trial, Avitto asserted that he was doing well in drug treatment, although he acknowledged one relapse when he sniffed cocaine (Aviteo: 784-85). Avitto first spoke to police about this case in June 2005, after the disposition of his burglary case. tle did not ask for anything with regard to his cases and he received nothing from the District Attorney’s Office (Avitto: 785-86, 014)."7 stipulations ‘Telephone records from October 2003 -- for the cell phones Defense counsel extensively cross-examined Avitto about his prior crimes and the sentence Avitto faced if he did not succeed at drug treatment. Counsel also examined Avitto about his prescription medications and about whether people in prison are Suspicious of other inmates and reluctant to talk. Avitto asserted that defendant was frightened in prison and thet he opened up to Avitto, who had taken defendant under his wing (Avitto: 786-810). 32of defendant, co-defendant Russo, defendant's brother, Al Cleary, Anthony Beharry, and Crystal Valentin ~~ and for the home phones of co-defendant Russo and Marla Antioco, were received in evidence pursuant to a stipulation (860-61) ."* It was stipulated that co-defendant Russo flew from New York to Los Angeles, California, on October 17, 2003 and that he returned to New York on October 23, 2003 (862). Tt was stipulated that Edward Schoenfeld’s 911 cell was feceived at 6:40 a.m. on October 12, 2003 (861). It was stipulated that fingerprint tests on Mark Fisher's wallet came back negative (861-62). Defendant’ s Case Defendant offered as exhibits, blow-ups of certain telephone records already in evidence (921). Defendant also offered tuo stipulations: (1) that in December 2004, the Grand Jury indicted defendant and thet, pursuant to an arrest warrant, defendant was arrested in front his hone at 182 Stratford Road on December 20, 2004 at 11:40 p.m. and (2) the number of defendant's hone telephone (922). ‘The Verdict and Sentence Defendant was convicted of first-degree robbery, felony murder, and criminal possession of a weapon in the second degree Maria Antioco was Anthony Bethune’s ex-mother-in-law, who had called him to cut co-defendant Russo's hair. 33(1064-66). On October 19, 2005, defendant was sentenced to an indeterminate term of imprisonment of twenty-five years to life on the murder count, to concurrent determinate sentences of twenty-five years and fifteen years on the robbery and weapon possession counts, respectively, and to a period of five years of post-release supervision (S. 32). 34pomnt 1 DEFENDANT'S CLAIMS THAT THE PROSECUTOR EXCEEDED THE BOUNDS OF THE COURT’S MOLINEUX RULING, — IMPUGNED DEFENDANI’S RIGHT 10 COUNSEL AND DENIGRATED DEFENSE COUNSEL, “SANOBAGGED THE DEFENSE,” IMPROPERLY APPEALED TO SYMPATHY, AND IMPROPERLY INSTRUCTED THE JURY ON THE TAN OF FELONY MURDER, ARE ALL UNPRESERVED FOR APPELLATE REVIEW AND ENTIRELY MERITLES Defendant claims on appeal that the prosecutor exceeded the bounds of the court's Molineux ruling in her opening statement, in the evidence that she elicited, and in her summation, and that additional summation errors included impugning defendant! s right te counsel, denigrating defense counsel, “sandbagging” the defense, improperly appealing to sympathy, and improperly defining felony murder for the jury. ALl of these claims are unpreserved for appellate review because defendant did not object to any of the coments/evidence which are now the subject of his complaints. Moreover, all of defendant’s claims are meritless because the prosecutor fully complied with the Molineux ruling and did not conmit the claimed errors in her summation. A.__The _Prosecutor’s Opening Statement Was _In Gonpliands With The Court’s Molineux Ruling. Defendant's claim that the prosecutor exceeded the bounds of the Molineux ruling is unpreserved for appellate review and meritless and this Court should decline to review it in the interests of justice. See People v. Olibencia, 45 A.D.3d 607, 35608 (2d Dep't 2007) (declining to review unpreserved claim that prosecutor transgressed Molineux ruling); People v. Dolberzy, 11 A.D.3d 708 (2d Dep't 2004) (elaim largely unpreserved and remarks in opening statement not unduly prejudicial). nile defendant asserts that the prosecutor, “in flagrant violation of the court’s Molineux ruling,” repeatedly denounced Gefendant as a “Tony Soprano,” a “capo” and 2 “Mafioso” who xan a petty street gang (Defendant's Brief at 3, 15-16), it 1s clear that the prosecutor's opening statement in no way portrayed defendant as the leader of a functioning, much less ruthless, criminal enterprise. Rather, the prosecutor's opening portrayed defendant’s gang-related activities as mostly the stuff of posturing and fantasy. As euch, it did not exceed the bounds of the court's Molineux ruling and it was not prejudicial." 38 “the court's initial ruling, allowing testimony about Gefendant’s relationship to co-defendant Russo within their gang's hierarchy and allowing testimony recounting a statement Gefendant made that the gang wae getting soft and about members Shaving to get a body before they got into GH” (Pretrial Transeript at 19-21, 34-35), is not challenged on appeal. Indeed, it was clearly a ‘proper exercise of the court's discretion. See, 9.g., People v. Cain, 16 A.D.34 288 (1 Dep't 2005) (gang expert evidence properly admitted: highly probative of defendant's motive, as well as his accessorial liability for the acts of the person who shot the victins, and it was critical to jury's understanding of relationship between defendant, the victine, “and the gunman); People v. Shan, 276 A.D.24 262 (1 Dep't 2000) (any prejudice from expert’ testimony on gangs minimal; testimony did not suggest that defendant pasticipated in Jarge-scale criminel activities); see also People v. Faccio, 33 A.D.3d 1041, 1042 (3d Dep't 2006); People v, Williams, 20 A,D.3d 1005, 1007-08 (3d Dep't 2006); People v; Ramixez, 23 36The prosecutor was pemitted to elicit evidence that Gefendant held a higher position within the gang's hierarchy ‘than co-defendant Russo and she told the jury that Russo would do just what defendant told him to do because defendant vas a leader of his group and Russo @ follower. The prosecutor explained the hierarchy, using the familiar fictional character of Tony Soprano, 2 mafia gang leader on an HBO television series, by saying, “this gang fancied themselves and this defendant fancied himself almost like a gangland fantasy, like something you would expect out of a movie, with this defendant the head, “the Tony Soprano figure, if you will” (26). The prosecutor’s reference to “the Tony Soprano figure, if you will” was clearly made only to explain defendant‘s position as superior to Russo's within their gang and the prosecutor did not call defendant “a Tony Soprano,” as defendant alleges. Certainly, her remarks did not even remotely suggest that defendant had perpetzated the kind of acts associated with Tony Soprano in the television show (Defendant’s Brief at 29). Rather, the prosecutor designated defendant’s gang as the stuff of a “fantasy,” with defendant “fancying himself” ae a leader. The prosecutor continued to diminish the gang's importance when she told the jury that defendant had told co-defendant A,D.3d 500, 501 (2d Dep't 2005); People v. Oliver, 19 A.D.3d S12 (2a Dep't 2005) . 7Russo to take Mark Fisher and “show him what's up,” and that ‘those words had meaning “in their fantasy gangland world” (28). lahen the prosecutor spoke of defendant's various admissions, she asserted that, “no matter what kind of a leader he thought he was," defendant could not keep what happened to himself (31). The prosecutor similarly did not refer to defendant as a “Mafioso.” What she said was that defendant vas a “self-titled Mafioso” -- a critical distinction (35-36). Indeed, the prosecutor had already told the jury that it was defendant who had named his gang “Ghetto Mafia” or “GH” (26). At another point, the prosecutor referred to defendant's “so called gang or group of theirs” (37). None of these remarks were the subjects of objections because they actually denigrated the gang as not being a real, functioning, criminal enterprise and the defense clearly did not find them to be prejudicial (38). In fact, defense counsel seized on the “Tony Soprano” reference to set up a stray man that he could knock down in his own opening. Counsel said, “ITLL talk about this gang evidence with you, because you know T could say anybody acts like Tony Soprano, but that’s just words, that’s just throwing dirt, and 1/11 dump the water on that and get the squeegee and get rid of that in about two seconds because that’s just throwing dirt on him’ (48). Defense counsel concluded by stating, listen to the cross examination, 38because she does a good opening statement, she says something about Tony Soprano, the kid was at his house, doesn’t mean this guy’s guilty of murder, ladies and gentlemen. The evidence is going to show that the two actions, immediately before and inmediately after this thing occurs, shows he didn’t know it was going to happen and he didn’t approve that it happened” (51). Although the prosecutor had never said or suggested that defendant “act [ed] 1ike Tony Soprano,” defense counsel used the reference to exude righteous indignation and suggest that the prosecution would be exaggerating defendant's role in this case. Because the prosecutor's remarks did not reveal any prior bad acts by defendant or the gang, nor did they portray the gang as a particularly dangerous entity, the prosecutor's opening was not in violation of the Molineux ruling and defendant's unpreserved claim of error is entirely meritless. See People v. Rios, 44 A.D.3d 494 (1% Dep't 2007); People v. Daniels, 35 A.D.3d 756, 787 (2d Dep't 2006); People v. Beggs, 19 A.D.34 1150 (4 pep’t 2005); People v. Dolberry, 11 A.D.3d 708 (2d Dep't 2004) (all finding opening statement error claims unpreserved and/or meritless); cf People v. Castro, 281 A.D.2d 935, 936 (4 Dep't 2001) (prosecutor's opening statement, “although perhaps unduly theatrical or melodramatic in its tone,” properly framed what victim would testify to and did not distort the evidence or otherwise prejudice defendant. 39B. The Evidence Elicited By The Prosecution Did Not Exceed The Bounds Of The Court’s Nolineux Ruling. There is also no merit to defendant's unpreserved claim that the prosecutor exceaded the bounds of the Molineux ruling by calling “witness after witness to testify about the gang's prior shootings and violent initiation rites” (Defendant's Brief at 3). The testimony about a shooting perpetrated by Gregory Ware, which defendant now asserts was a gang-related shooting that should have been precluded (Defendant's Brief at 16-17, 28), was, in fact, never tied to the gang. Ware testified that he and a friend got into a spontaneous argunent about smoking with some other people who cane to a party at Anthony Beharry’s house and that he and his friend were “kicked out” of anthony’ s house (Ware: 669). Since the jury knew that Beharry was close friends with defendant and that Ware had been asked to leave Beharry’s house before the shooting incident took place, there was absolutely nothing about Ware’s testimony that suggested that defendant or GN had anything to do with it. Indeed, defense counsel did not object or claim that the testimony violated the Molineux ruling. Evidence of Waze’s criminal act was relevant to his credibility, it bad to be revealed to the jury, and it in no way portrayed defendant in a negative light. That defense counsel. did not find the testimony to have been prejudicial is obvious 40fron his decision not to cross-examine Ware (676) (who only gave substantive testimony against co-defendant Russo before a @ifferent jury), and not to even mention Ware in his summation. There is similarly no merit to defendant's unpreserved claim that the prosecutor exceeded the bounds of the Molineux ruling in the testimony that she elicited from Crystal Valentin, co-defendant Russo’s ex-girlfriend. Valentin, like Ware, gave no substantive testimony against defendant, In claiming that Valentin’s testimony was prejudicial, defendant seizes upon her testimony that Russo spoke of a gang initiation rite in which he stood alone in a square area and fought four people, and his statement that his gang had “war” colors (503-04) (Defendant! s Brief at 17, 28). However, Al Cleary’s and Valentin’ s testimony established that this ritual and the “war” colors did not even relate to “GM,” but rather, to a Crips gang that some of defendant's friends were part of years before, in their sophomore year in high school. Not only were these activities remote in time from the murder, they did not constitute a “crime.” While the fight ritual could certainly have been seen as a rather violent form of hazing, there was no testimony that it ever involved weapons ox anyone not voluntarily participating in the initiation rite. Indeed, although Al Cleary testified that defendant had told him of the ritual, nobody testified that defendant ever took part in such a fight or was even present at “afone. Nor was there any testimony of a ‘war actually being fought by the Crips gang or GM. Because Valentin’s testimony related to events renote in time to the charged crime and because it did not establish that defendant or his friends perpetrated any criminal acts, there is no merit to defendant’ s unpreserved claim that the testimony was unduly prejudicial. Indeed, as with Ware, defense counsel did not object to Valentin's testimony and he did not mention Valentin in his sunmation. Defendant’ complaint that the court improperly adnitted evidence of defendant's possession of the 380 handgun (Defendant's Brief at 18, 28), which was objected to at trial (236-37), 18 also meritless and should be deemed waived by defense counsel's failure to submit a limiting instruction about that evidence -- an instruction that the court had said it would “he happy to give” if defendant proposed one (237). 3m any event, the evidence was properly admitted, not as a prior bad act, but because defendant’s possession of this gun, in addition to a .22 caliber pistol that defendant had shown Al Cleary the week before, tied in with the People’s theory of intentional murder and was part of the narrative of what happened on the night of the murder. Noreover, the testimony was also relevant because it corroborated Meredith Denihan’s atestimony that defendant had told her that both he and his brother had guns in the house (236-37). Im any event, the .380 handgun was concededly not the murder weapon and testimony about defendant's possession of this gun was not unduly prejudicial. In fact, defense counsel apparently never sought @ limiting instruction about defendant’ s possession of this gun becouse that evidence wltimately proved very useful to the defense. Anthony Beharry had testified thet defendant gave hin a gun to dispose of and because Beharrry was defendant's very good friend, it would have been difficult to suggest that Seharry had made this up. However, because of the evidence of dafendant’s possession of the .380 on the night of the murder, counsel was able to argue in summation that defendant did not have the murder weapon ~~ which had been given to co-defendant Russo and which “never made it back to the house” -- and that it was the .380 that Beharry disposed of for defendant, Counsel was able to plausibly argue that, after learning of the murder and realizing that he was bound to be investigated because Mark Fisher had been in his howe, defendant reasonably wanted the .380, an illegal weapon, out of his house (967-68). Finally, the prosecutor agreed in summation that “having guns” did not in any way implicate defendant in the morder (994). Because the .360 was not the murder weapon, because 3evidence of its possession was useful to defendant in neutralizing Beharry’s testimony, because the prosecutor agreed that its possession had no bearing on the murder, and because a Limiting instruction was never requested, although the court was willing to give one, defendant should not be heard to complain on appeal that he was prejudiced by this evidence. For all of the aforementioned reasons, defendant’s unpreserved claim that the prosecutor exceeded the bounds of the court's Molineux ruling with respect to the evidence that ehe elicited is completely meritless. See C.P.b. § 470.05(2); People v. Olibencia, 45 A.D.3d 607 (2d Dep't 2007); People v. Adair, 19 A.D.3d 1038 (4th Dep't 2005); People v. Woody, 9 A.D.3d 439, 439-40 (2d Dep't 2004); People v. Garcia, 294 A.D.2d 515 (2d Dep’t 2002); People v. Greeman, 235 A.D.2d 281 (1° Dep't 1997) (all finding either unpreserved and/or meritless claims that prosecutor transgressed Molineux ruling). C. Defendant's Claims that the Prosecutor (1) Placed Undue Weight On ‘The Gang-Related Bvidence, (2) Impughéd Defendant”s Right To Counsel And Denigrated Defense Counsel, (3) “Sandbaqged” The Defense, (4) Improperly Defined Felony Murder, And (5) Overstepped Rhetorical Bounds In Her Summation Are Similarly Unpreserved And Meritless. ALL of defendant's claims of summation error are unpreserved because defendant did not object to any of the comments now alleged to be prejudicial. Moreover, defendant's claims should not be reviewed in the interests of justice “4because they are meritless. See People v. Butts, 279 A.D.2d 587 (2a Dep't 2001); People v. Caminero, 193 A.D.2ds 547, $48 (2° Dep't 1993) People v. Allen, 186 A.D.24 379 (1° Dep't 1992); Eeople v. Holland, 174 A.D.2d 508 (1% Dep’t 1991) (all finding claims that prosecutor either appealed to sympathy, denigrated the defense, or improperly argued inference of consciousness of guilt, unpreserved and/or meritless). The Prosecutor Did Not Place Undue Weight On The Gang-Related Evidence The prosecutor did not rely too heavily on the gang evidence or improperly suggest in summation that defendant’ s gang had been involved in uncharged crines (Defendant's Brief at 3-4, 29, 36). Im fact, the prosecutor scofrea at the notion that GM was a functional criminal enterprise, referring to it as a “pathetic fledgling gang looking for sone kind of street credibility” (980), as “this so-called gang” (983). the Prosecutor also mentioned “the gangland fantasy world that this defendant and his buddy hed created for himself” (985), and she described defendant as “trying to play the gang leader he so wanted to be” (991), and as “playing gangster” for Meredith Denthan and “bragging about how rough Brooklyn could be” (1004). When the prosecutor referred to defendant as a “gangland leader,” it vas sarcastically, in the context of discussing co- defendant Russo’s slavish devotion to defendant the “gangland 45leader” that Russo so wanted to impress (998). See People v. Qverlee, 236 A.D.2d 133, 142 (1% Dep't 1997) (use of sarcasm is well-recognized device to illustrate implausibility). when the prosecutor argued that Russo would do as defendant said, she asserted that they were bonded by friendship and by “their Little gang” (988-89), Tt was in that sense, as well, that the prosecutor referzed to Russo as defendant's “soldier” (990). None of the prosecutor’s arguments about how the gang factored into Russo's obedience to defendant and about the unlikelinood that Russo was acting on his own amounted to an argument that “because [defendant] is a gangland leader the jury need not decide what [he] actually did” (Defendant’s Brief at 22). Nor did the prosecutor's arguments suggest that the gang evidence proved defendant’s propensity to commit a violent crime (Defendant’s Brief at 4). The prosecutor never suggested that GM had engaged in prior criminal acts and her references to the gang were not prejudicial or unfair in any way. See People v. Melendez, 211 A.0.2d 436 (1° Dep’t 1995) (prosecutor's cross~ examination of defendant and summation remarks did not portray defendant as having a propensity for homicidal violence). References to defendant's gang were properly confined to the allowable evidence that defendant had a higher place in the gang's hierarchy than co-defendant Russo (988-90, 995), and that defendant had made a statement that the gang was getting soft 46and that it needed to “toughen up by committing a homicide” (1024), Everything that the prosecutor said about defendant’ s gang was fair comment about evidence properly elicited pursuant to the Molineux ruling and there is no merit to defendant's unpreserved claim that the summation was improperly prejudicial. See People v. Dorgan, 42 A.D.34 505 (2d Dep't 2007) (rejecting uunpreserved summation error claim because challenged remarks were for the most part fair comment on the evidence, responsive to defense argunents and theories, or otherwise within broad bounds of rhetorical comment permissible in summation) 2. he Prosecutor Did Not Impugn Defendants Right To Counsel Nor Did She Denigrate Defense Counsel Defendant's claim that the prosecutor unfairly “insinsated that [defendant] was guilty because he consulted with an attorney and suggested to his friends that they do so before speaking to the police” (Defendant's Brief at 29) is also unpreserved. In fact, defense counsel did not object to AL Cleary's testimony that he introduced defendant to an attorney or that defendant urged Al not to talk to police and to consult an attorney (318-19, 328), and counsel did not object to the prosecutor's summation comment about Cleary referring defendant to an attorney (996). Moreover, defendant's claim of error is meritless. The prosecutor did not, in fact, argue, as defendant now asserts, athat defendant’s decision to consult an attorney demonstrated “consciousness of guilt” an argument defendant contends would have been unfair because a prudent innocent person may consult an attorney if he believes that police want to question him (Defendant's Brief at 29-30). Actually, the prosecutor's reference to defendant seeing an attorney was part of a fair response to defense counsel's all-out attack on Al Cleary’s credibility. During cross-examination, defense counsel had suggested that Cleary only changed his story after learning about a reward in the case (343-44), and in summation counsel assailed Cleary’s testimony a5 completely “discredited” and suggested that Cleary only incriminated defendant after being “beat len} up” by the prosecution, which threatened Cleary’s probation status (945, 952, 961). Counsel argued that he “never expected that this case would fall apart the way it’s fallen apart. I have never, would have expected that these witnesses would have shown [sic] to lie repeatedly in this case” (976). That Cleary had recommended to defendant that defendant consult with an attorney right after defendant told Cleary about events relating to Mark Fisher, and that defendant did consult with the attorney, was an integral part of the narrative of the events that followed the murder and -- if believed by the jury - = that testimony was extremely relevant to the credibility of 48Cleazy's assertion that defendant nade incriminating statenents to him. Certainly, if defendant had not made incriminating statements, there would have been no reason for Cleary to recommend that he seek counsel. Thus, in summation, the prosecutor properly recalled for the jury that Cleary had testified that he took defendant to see a close friend of his, the lawyer Phil Smallman, “because he knew his friend was going to need help” (996). This was not an argument that defendant demonstrated a consciousness of guilt because “he knew he would ‘need help,’* or because he “needed help” (Defendant's Brief at 20, 23, 29, 30). It was an argument that Cleary’s testimony regarding defendant's inculpatory statenents was credible, given the actions that Cleary took. The remarks were fairly responsive to a defense summation that had pummeled Cleary and there was nothing improper about then. That defendant told people to whom he had made inculpatory statements to resist talking to the police and to retain attorneys was proper consciousness-of-guilt evidence and it was appropriately not objected to by defendant. See people v. Punter, 222 A.D.2d 242 (1** Dep't 1995) (defendant’s evasive answers properly admitted as consciousness of guilt); People v. Kearse, 177 A.D.2d 393 (1" Dep’t 1991) (defendant’s testimony 49concerning her failure to respond to police efforts to see her properly admitted as evidence showing consciousness of guilt). Moreover, that both Al Cleary and Lauren Calciano had been urged by defendant not to talk to police was extremely relevant to the credibility of their explanations for not having given defendant up until they were faced with having to testify under oath at a grand jury, more than one year after the murder. rt was fair comment for the prosecutor to axgue in summation that defendant’s direction to his friends to seek counsel and to avoid talking to the police showed defendant’s fear of his guilt being discovered and there was correctly no objection to this argunent (987). Certainly, the prosecutor was not bound to view the evidence that defendant had consulted an attorney and recommended that his friends do so as being “consistent with [his] being innocent of the homicide” (Defendant's Brief at 29- 31) when it was fairly inferable from the testimony that defendant had acted to impede an investigation. Moreover, the Prosecutor was not bound to acknowledge that an innocent person might conault with counsel when it was never the defense position that defendant consulted with counsel, much less that his doing so was consistent with innocence. Rather, it was the defense position that the two witnesses who said that defendant either saw an attorney or recommended that they do so -- Al 50Cleary and tauren Calciano ~- were lying about everything they had said about defendant. The prosecutor was entitled to urge the jury to believe Cleary and Caiciano and to argue that Cleary would not have suggested that defendant see an attorney if Gefendant had not made the admissions that Cleary testified he made. There is also no merit to defendant's unpreserved clain that the prosecutor denigrated defendant’s trial counsel. The prosecutors comment’ in summation, recounting Caleiano’s testimony that defendant had told her not to worry about the police wanting to talk to her because Calciano knew attorneys Sam Gregory and Lance Lazzaro (and Sam Gregory happened to be representing defendant at trial) hardly denigrated counsel. In no way did the prosecutor's conment, which showed that defendant was trying to have Calelano stonewall the police, suggest that defense counsel had done or would do anything improper and there is no way that the prosecutor’s remark could have been seen as an ad hominem attack on counsel (Defendant's Brief at 31). Indeed, counsel, who had cbjected to Calciano’s testimony mentioning his name, did not object to the sunmation remark (985-66, 987). See People v. Simon, 35 A,D.3d 894 (2d Dep't 2006); People v. Martinez, 302 A.D.2d 271 (1% Dep't 2003); People v. Torres, 220 R.0.2d 269 (1% Dep't 1995) (all rejecting claims that prosecutor denigrated defense counsel) . s23. The Prosecutor Did Not “Sandbag” The Defense By Arguing That Defendant Might Have Fired shote At Mark Fisher Defendant’s claim that the prosecutor “sandbagged” the defense by arguing in sunnation that defendant might have fired some shots at Mark Fisher himself -- something that the prosecutor had not suggested in her opening statement and a conclusion inconsistent with the version of events presented in defendant's statements to Al Cleary and Lauren Calciano (Defendant’s Brief at 13, 35-36) ~~ is also unpreserved because there was no objection to the remark (1017). Moreover, the prosecutor's argument wae fair comment on the evidenc Calciano and Cleary were not the only witnesses to recount statenents by defendant at trial. gohn avitto testified that defendant adnitted being present at the shooting, that defendant told Avitto that he was the one who pulled out a gun and pistol~ whipped Mark Fisher, and that co-defendant Russo then took the gun and shot Fisher (Avitto: 774-75). However, the 911 caller had reported a pause between two separate volleys of shots, and it was a fair argument that during that pause, the gun might have been passed to or from defendant and that defendant might have fired some of the shots. There was certainly no unfair prejudice from this suggestion, first, because the prosecutor made it abundantly clear that the People did not know what actually happened on the 82street and, second, because it was always the People’s position, and the law of felony murder, that defendant did not have to have fired any of the shots, or even been present during the robbery, to be guilty of felony murder. Thus, there was nothing about the prosecutor’s discussion about the various permutations and combinations of possibilities under which defendant would be guilty of felony murder that was prejudicial. In discussing the evidence, the prosecutor asked: Did (defendant) fire the first shots? 1, 2, 3, then hand the gun over to Russo to finish and walk? Did Russo fire every one of those shots that pumped into Mark Fisher’s body brutalizing him over and over again until he died? We don’t know. But one thing is abundantly clear, that this defendant was every bit involved in this crime. You know beyond a reasonable doubt that he supplied the gun, that he knew it was going to be used to rob Mark Fisher, to show him “what's up,” and you know they took Mark Fisher’s wallet completing that robbery and that . . . whether you find that [defendant] was actually present or not, doesn’t, in any way, matter under the law” (1019). Contrary to defendant’s claim that the prosecutor's belated suggestion that defendant might have fired some of the shots precluded him from making the argument that co-defendant Russo was “nuts” and fully capable of committing the robbery/homicide on his own initiative (Defendant’s Brief at 36), defendant could certainly have made that argument. That the argument was not made was most likely because the only 53witness to testify that Russo was “nuts” was Al Cleary (345), a witness labeled as “discredited” and a liar by the defense (945, 951-52) and, thus, someone whose testimony the defense could not rely upon in support of an argunent of their own. In support of his “unfair sandbagging” claim, defendant cites two federal cases, United States v. Russo, 74 F.3d 1383, 1396-97 (2d Cir. 1996), and United States v. Gleason, 616 F.2d 2, 25-26 (2d Cir. 1979). However, in the federal system, the prosecutor sums up first, the defense responds, and the Prosecutor has a final opportunity to give a rebuttal summation. im both of the cited cases, it was deemed unfair for the prosecutor to have euggested a new argument in the rebuttal summation (although the errors in both cases were not found to warrant reversal). As defendant is surely aware, the defense sums up first in state court and, as such, it always does so unaware of precisely what the prosecutor will argue. Indeed, as, defense counsel stated in summation, “John avitto says after reading the papers it happened when they were going to the ATM and there aze two other guys so I don’t know what her theory is going to be” (975). Because the prosecutor was in no way obligated to signal what inferences she would argue that the juzy draw from the evidence, because the various possibilities that she suggested to the jury were reasonable based on the evidence, and because it did not matter, in any event, whether sadefendant fired any shots for him to be guilty of felony murder, there is absolutely no merit to defendant’s unpreserved claim that the defense was “sandbagged.”” Similarly, the prosecutor didnot. = aargue. contradictory and unsupported theories in her opening and closing statements (Defendant’s Brief at 13). While the prosecutor began the case with two counts of murder for the jury to consider, the case concluded with only the felony murder count being submitted to the jury and the prosecutor properly focused her arguments towards that charge in summation. 4. the Prosecutor Did Not Mislead The Jury About The Elements Of Felony erder. Nox did the prosecutor mislead the jury about the elements of felony murder, another of defendant's unpreserved clains (Defendant’s Brief at 31-33, 36-37). In making this argument defendant seizes on two pages of @ forty-eight page sunmation, in which the prosecutor “start{ed] with . . . Lauren Calctano” (981). Walle the prosecutor did suggest at that point that calciano’s testimony that defendant gave the gun to co-defendant Russo knowing that Russo intended to commit a robbery was sufficient alone to support a conviction of felony murder (982), the balance of the prosecutor’s summation made it very clear that the People had to prove that defendant shared Russo's 55intention to rob Mark Fisher in order for him to be guilty of felony murder. The prosecutor noted that defendant had indicated his involvement in what happened to Mark Fisher by telling AL Cleary, after Al told defendant that there had been a shooting fon the block, “well, we may have had something to do with that” (986). Thereafter, the prosecutor argued that because defendant and co-defendant Russo had a bond together and “spoke the same language,” Russo (who had told defendant that he wanted to rob Mark Fisher [982]), knew thet defendant intended that he do so when defendant told Russo to take Mark outeide and “show him whats up,” and then gave Russo his gun to do so (988-89). The prosecutor then argued that Russo went outside to wait for Mark at a location predetermined by Russo and defendant and that defendant thereafter sent Mark outside so that he could be attacked by Russo (989). At another point in her summation, the prosecutor argued: What he had told Russo to do, he gave Russo the gun. That night, in those early morning hours, he was charged up, trying to play the gang leader that he so wanted to be, this kid was on his territory, the girl was paying attention to Mark and he somehow had been shown disrespect by sitting on his table rather than a chair so all this defendant was thinking of at that time was of hurting Mark Fisher, who [sic] humiliated him, having his money taken and with it his pride, however he could. And, because he told him to say one ‘thing but Tony had done another, is that any excuse? 56Absolutely not but remember, those were his words to Al Cleary, I told Tony to do one thing but he went and did another. What that is, is adnission that at the very least this defendant knew about and sanctioned the robbery that you knew that was committed and maybe, maybe, things got out of hand from what they had planned. (991-32). In responding to defense counsel’s suggestion that AL Cleary was more involved than he had let on, the prosecutor said, “It wasn’t Cleary who had spoken of the robbery beforehand with Russo. It was this defendant (996). The prosecutor noted how defendant had smirked when he told Meredith Denihan “you never know what can happen at an ATM here in Brooklyn,” arguing that this comment reflected that defendant had already been making plans for Mark to be robbed at that point, and that the comment was “an admission . . . that he had knowledge and was part and parcel of his plan to humiliate and Show Mark ‘what was up’ in part by robbing him. . . ." (1003, 2013). When the prosecutor discussed John Avitto's testimony, she reminded the jurors that defendant had told Avitto that he wanted money for more alcohol and that he had hit Mark in the face after Mark did not take out enough money from the ATM (1008), and the prosecutor suggested, based upon a telephone call between defendant and co-defendant Russo at 5:13 a.m, 37about forty minutes before the murder, “that Mark Fisher was supposed to be robbed, supposed to be dealt with during that Hirst visit to the ATM machine” (1012). The prosecutor also noted that defendant had told avitto that “he was actually participating in that robbery, he was mad Mark didn’t give him the money so he struck Mark's face with the gun” (1016). The prosecutor argued that the version that defendant gave Avitto made sense because Mark was a very big man and it was unlikely that Russo could have done everything alone, including holding the gun, demanding the money, going through Mark’ ® pockets, and beating him about the face and body, causing tears to Mark's clothing and multiple bruises to his face and body. The prosecutor added, as corroborating defendant’ s account that he was present and assisting in the robbery, that defendant’s brother had called defendant only two minutes after Mark was shot, something he would not have done if defendant had been at home with his brother at the time (1027-18). In arguing that defendant was “every bit involved in this crime,” the prosecutor summarized: You know beyond any reasonable doubt that he supplied the gun, that he knew it was going to be used to rob Mark Fisher, to show him ‘what's up,’ and you know that they took Mark Fisher's wallet completing that robbery and that whether [defendant] . - was actually present or not, doesn’t, in any way, matter under the law. SB| _-Bither way, he is absolutely guilty of the acting in concert with Antonio Russo, both by the robbery and that means ultimately the murder itself. (2018). Finally, when the prosecutor told the jury about the charges it would receive, she again made it clear that it was the People’s position that defendant knew about the robbery in advance, acted in concert with co-defendant Russo in perpetrating the robbery, and so was guilty of felony murder (1025-26). Because all of these argunents made it clear that defendant had to have acted in concert with Russo to commit the robbery for defendant to be guilty of felony murder, nothing in the prosecutor's summation misled the jury. Moreover, any isolated statements taken out of the context of the entire summation were also not prejudicial because the jury had been correctly informed of the elenents of felony murder by the court and the prosecutor as early as voir dire and because, in its final charge, the coust informed the jury that it had to take the law from the court and the court correctly instructed on the elenents of felony murder. Indeed, during the first round of voir dire, the prosecutor had explained: And one of the crimes for murder is going to be felony murder, basically, that if people work together to commit’ another crime, in this case a robbery, even if not every one of them intended for a person to die, if 59they work together in the robbery under the law, if it's proven beyond a reasonable doubt, that makes then guilty. (Voir Dire transcript dated September 13, 2005 {hereinafter “V.D." at 57). Defense counsel also discussed “acting-in- concert” and said “I try to stay lay from the law because (the court is] better at the lew than I am and he won't let me talk about the lax, but, essentially, in order to be guilty of acting in concert, two things have to be presents you have to participate, like do something, and you have to act with the same mental state ae the person who carried out the act” (V.D. 62). During the first round of voir dire, the court twice explained “assuming that two people participate in a robbery and one of them kills the victim during a robbery, they're beth equally responsible for the killing, that’s the law” (V.D, 115- 16). tater during voir dize, the prosecutor again stated with respect to felony murder that “if people work together to commit a crime, it doesn’t matter if they intended to kill somebody, if sonebody dies during the crime that makes then guilty of murder” (159-60) . In ite preliminary inetructions, the court told the jurors that it would instruct them on the law and that the jurors had to follow the law as the court would give it to them (18). At the end of trial, the court gave extensive and careful final instructions on the elements of acting-in-concert, first-degree «0robbery, and felony murder, again telling the jury first that it had no discretion regarding the law and that it had to “follow the law as I give it to you. . ." (1034). The court clearly explained that the People had to prove that defendant and co- defendant Russo “each acted with the mental culpability required for the commission of the crime of Robbery in the First Degree,” and that the People had to prove that defendant “acted with the intent to forcibly steal property from Mark Fisher and that this forcible stealing would take place with @ handguns that the person who committed this crime would be armed with a deadly weapon, a firearm.” The court further instructed that the People had to prove that defendant “either solicited, requested, commanded, importuned or intentionally aided” co-defendant Russo in the commission of @ first-degree robbery of Mark Fisher and the court stressed that it was “not sufficient” for the People to establish that the defendants were associated with each other or that one was “merely present while the other engaged in the criminal conduct.” The court repeated, “Before one can be found to be criminally Mable for the conduct of another, it must be proved, both, that he possessed the required mental culpability, that is, an intent to commit that crime, a robbery; and secondly, that he either solicited, requested, commanded, importuned, or intentionally aided the other defendant to commit the crime of Robbery in the First Degree” (1041-42). The court 61thereafter repeated, again, thet to find defendant guilty, it had to find that Yeach shared in the intent to forcibly steal property, that they had a community of purpose, and that they were acting in concert together . . . " (1043). In iisting the elenents of First Degree Robbery, the court again made it clear that defendant could not be convicted unless the People proved that he, acting with co-defendant Russo, knowing that he or Russo was armed with a deadly weapon, forcibly stole property (1045). Indeed, the court had told the jury that it could not even consider felony murder if it found defendant not guilty of the robbery (1045). hen the court explained the elements of felony murder, it noted, again, that the People had to prove defendant’s participation in the robbery (1046-47). During deliberations, the jury requested to be xe-instructed on the elenents of robbery and felony murder (1055), and the court complied with this request (1057-61). Because of these extensive instructions, any possible error in the prosecutor’e discussion of felony murder was cured. See Pople v. Delphin, 26 A.D.3d 343 (24 Dep't 2006); People v. Robinson, 16 A.D.3d 768, 770 (34 Dep't 2005) People v. wright, 5 A.D.3d 873, 875 (3d Dep't 2004); People v. Rosenblitt, 198 A.D.2d 362, 383 (24 Dep't 1993); People v. Arnold, 226 A.D.2d 468, 469 (2d Dep’t 1996); People v. Barnes, 175 A.D.24 695 (1% 62Dep’t 1991) (a11 holding that if prosecutor misstated law, error cured by court's instructions on law). Defendant Has Not Prejudiced By The Prosecutor’ s Rhetoric In Summation Finally, defendant was not prejudiced by the prosecutor's assertion that, Mark Fisher was ultimately “a lamb surrounded by wolves” -- another remark that was not the subject of an objection (981). In the context of this case, where it appeared that Mark, a suburbanite who had never been to the city alone, was viewed as an easy target by a local gang itching to establish itself as tough, the reference was not outside of the broad bounds of rhetorical comment permissible in summation. See People ¥. Galloway, 54 N.¥.2d 396, 395-400 (1981); see also People v. Miller, 8 A.D.3d 176, 177 (1% Dep't 2004) (brief xhetorical flourishes that may have evoked sympathy did not deprive defendant of fair trial, particularly in light of court’s instructions to disregard any considerations of sympathy); People v. Howe, 292 A.D.2d S42 (2d Dep't 2002) (same); Beople v. Garcia, 166 A.D.2d 199, 199-200 (1° Dep't 1990) (allegedly inflanmatory summation remarks within bounds of rhetorical response); see also People v. Stephens, 2 A.D.3d 988, 890 (3d Dep't 2003); People v. Chapin, 265 A.D.2d 738, 739 (3d Dep’t 1999) (both finding prosecutor’s characterization of defendant as “predator” inappropriate but not egregious enough 63to warrant reversal in Light of totality of evidence and court's curative instructions); People v. Hamilton, 227 A.D.2d 669, 672 (3d Dep't 1996) (same); People v. Graham, 169 A.D.2d 842 (2d Dep't 1981) (defendant not denied fair trial although some of Prosecutor’s remarks appeared improperly intended to arouse sympathy) « Moreover, even if the prosecutor’ s isolated remark here was improper, for reversal to be warranted for a summation error, defendant must show that he was substantially prejudiced by the remarks, People v. Roopchand, 107 A.D.2d 35 (24 Dep't), af! 65 N.¥.2d 837 (1985), something that could not have occurred here, particularly in Light of the coust’s final instructions to the jurors to disregard issues of “fear, favor, passion, prejudice or sympathy for anyone,” and instructing that the jurors were not obligated to accept any of the arguments made by the attorneys in their closing argunents, and that they should decide the case only from the evidence, which included testimony, exhibits, and stipulations (1033-34). Finally, any possible error was also harmless in light of the overwhelming evidence of defendant's guilt. There was evidence of a flurry of cell phone calle between defendant and co-defendant Russo around the time that Russo initially took Mark Fisher to the ATM, suggesting that something had been planned in connection with that trip. There was also a flurry 64of calls later on, around the time of Mark’s murder. Moreover, Meredith Denihan testified that when she noticed that Russo and Mark were gone, defendant had smirkingly said, “you never know What happens when you go to an ATM in Brooklyn," @ comment that suggested that a robbery had been planned. Lauren Caleiano’s testimony established that Russo told defendant that he wanted to rob Mark and that defendant gave Russo his gun to do so, and Al Cleary testified that before giving Russo the gun, defendant had also directed Russo to show Mark “what’e up.” John avitto testified that defendant told him that the group et defendant’ s home had run out of Liquor and that defendant wanted money fom Mark to buy moze. According to Avitto, both defendant and Russo took Mark to the ATM, where they beat him, took his wallet, and ‘then killed him after he angered them by only withdrawing twenty dollars. That Mark's wallet was found in a sewer equidistant between defendant's and Russo's hones was further evidence of a robbery by both defendant and Russo. Because there was overwhelming evidence that defendant participated in what turned out to be a felony murder, any possible error in the prosecutor's summation was harmless. 65POINT rr DEFENDAND’S CLAIN THAT THE COURT ERRED IN FAILING 70 GIVE LIMITING INSTRUCTIONS REGARDING THE GANG-RELATED EVIDENCE AND CBRTAIN CONSCTOUSNESS-OF-GUILT EVIDENCE IS _ONPRESERVED AND MERTTLESS. MOREOVER, BECAUSE THERE WAS NO NEED FOR LIMITING INSTRUCTIONS, DEFENSE COUNSEL WAS NOT INSSFECTIVE FOR FAILING TO REQUEST THEM. Detendant’s claim that the court should have given Limiting instructions regarding the Molineux evidence and regarding certain “consciousness of guilt” evidence is unpreserved for appellate review because defendant never sought such instructions. See People v. Cherry, 46 A.D.3d 1234 (3d Dep't 2007); People v. Olibencia, £5 A.D.2d 607, 608 (2d Dep’t 2007); People v. De La Cruz, 44 A.D.3d 346, 247 (1 Dep't 2007); People vi Norman, 40 A.D.3d 1128, 1129-30 (2d Dep't 2007)7 People v. Sommerville, 30 A.D.3d 1093, 1094-95 (4™ Dep't 2006); People v. Wright, 5 A.D.3d 873, 876 (3d Dep't 2004); People v. John, 221 A.D.2d 964, 565 (2d Dep't 1995); People v. Leitzsey, 173 A.D.2d 488 (20 Dep't 1991) (all finding unpreserved claims that court erred in failing to give limiting instructions regarding consciousness of guilt evidence). Moreover, this Court should not consider defendant’s unpreserved claim in the interests of justice because defendant was not prejudiced by the absence of limiting instructions. Although the court had said at the time of its Molineux ruling that it would give a limiting instruction at the end of trial, 66the court noted that it would formulate the instruction about the testimony, “after I hear it” (Pretrial Transcript at 21). Because the gang-related evidence that the court allowed ultimately did not even suggest, much less show, defendant’ s involvement in any prior criminal acts, there was no need for the court to formulate a limiting instruction, particularly in the absence of a request. See People v. o"Gara, 239 A.D.24 215 (2 pep’t 1997) {declining to xeview unpreserved claim that court should have given limiting instruction regarding prior bad acts; jury never urged to consider evidence as demonstrating Gefendant’s propensity to commit crimes and counsel did not request limiting instruction at any time). Indeed, when the court allowed evidence that defendant possessed a .380 handgun on the night of the murder, it similarly offered to give a Limiting instruction if the defense Proposed one, but counsel never did so (237-36). Thus, defendant should not be heard to complain that the absence of Limiting instructions prejudiced hin (Defendant’s Brief at 23, 38, 39-40). Cf. People v. Greene, 252 A.D.2d 746 (3d Dep't 1998) (defendant should not be heard to complain of prejudicial effect of court’s ruling when court's offer of an appropriate Limiting instruction was rejected). Re has been fully discussed in POINT I, subdivision 2, no evidence was elicited at trial regarding any prior criminal acts oof defendant or GM. Evidence that members had an internal hierarchy, “hung cut” together, had meetings, and wore orange, was hardly unduly prejudicial.*” Nor could defendant have been substantially prejudiced by testimony that a gang that he was a menber of as a sophomore in high school had at one time a voluntary one-on-four fist fight initiation rite and had gray as its “war” color, particularly in the absence of any testimony that defendant himself took part in any initiation rite or that any “war” actually took place.** While defense counsel. acknowledged in his summation that being in a gang was “not a goed thing," he noted that it was far from proof beyond a reasonable doubt that defendant comnitted the charged crimes and he was correct (942-43). Indeed, counsel's failure to request Limiting instructions about the gang-related evidence at the end of trial demonstrated that the defense ultimately did not see it as prejudicial, See People y. Gonsa, 220 A.D.2d 27, 30 (3d Dep't 1996) (evidence of prior bad acts not prejudicial: acts described “did not demonstrate defendant's propensity to engage %® purthermore, all of this evidence came from defendant's mouth, as the court ruled it must. Al Cleary testified to what defendant had told him about the gang's meetings, colors and hierarchy (259-62, 265, 274-75, 305). % In a footnote to his brief, defendant cites a case that explains that “Crips” wear “colors” to identify each other and to know who to attack and who not to attack in street fights (Defendant's Brief at 17, fn. 10). However, there was no such testimony at this trial and nothing to indicate that any fights actually took place. 68