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A top prosecutor in Manhattan District Attorney Cy Vance Jr.’s office who quit after being accused of withholding evidence misled the court about her role in the handling of the tell-tale tape, a defense lawyer alleged Tuesday.
Assistant District Attorney Diana Florence said in court Friday that she only “very, very recently” learned of the 2015 recording, which could damage the credibility of her star witness in several big bribery cases.
But in a letter to the judge Tuesday, defense attorney Marc Agnifilo cited Florence’s court statement and charged, “The defense has reason to believe that the People [prosecutors] knew about the recording and had possession of it at least as early as 2016.”
Florence, appointed by Vance in 2015 as head of his Construction Fraud Task Force, resigned last week. It’s unclear exactly when she’s going to leave Vance’s office.
The key piece of evidence at the heart of the prosecutorial misconduct allegations is a 38-minute tape of Ifeanyi “Manny” Madu, a manager with the city Department of Environmental Protection. Madu was Florence’s sole cooperating witness and testified he accepted bribes from multiple contractors seeking his insider help to snag lucrative city work.
But Madu also swore under oath in a 2015 interview with the city Department of Investigation that he never took bribes from contractors. Florence didn’t give the tape to multiple defendants who pleaded guilty or were convicted over the last four years, even though the law requires prosecutors to hand over all evidence to the defense before trial.
‘Absolutely a Mistake’
Three weeks ago, the recording popped up in a cache of evidence she handed over in the latest pending bribery case.
“Now Your Honor, it was absolutely a mistake not to turn those things over,” Florence told Manhattan Supreme Court Justice Michael Obus Friday. “I did not know about the tape, however, and that interview I was not aware of it until very, very recently. And when I discovered that it existed, I immediately agreed that we should turn it over.”
On Tuesday, Agnifilo, representing Kyriacos Pierides, a former construction industry executive facing trial on charges of bribing Madu, challenged Florence’s timeline.
In a letter to Obus, Agnifilo cited an October 2016 affidavit by DOI Investigator James McElligott. At the time, McElligott was assigned to the Manhattan District Attorney’s office to “investigate building-related crimes.” Reached by phone, he declined to comment.
Also at that time, Florence was the lead prosecutor on the then-unfolding bribery cases involving Madu.
As lead investigator, McElligott would need to discuss the evidence he was using to obtain a search warrant with the prosecutors overseeing the case. The affidavit he used to get a warrant to search Madu’s emails is dated Oct. 26, 2016.
In the document, McElligott states he was informed by another DOI investigator that probers in 2015 interviewed Madu, who denied having any contact “on a social or professional basis” with a contractor suspected of paying bribes.
Agnifilo informed the judge on Tuesday that he’d received “information indirectly from a DOI official that the DA’s office has had this recording for at least four years.”
The 2015 Madu tape also has surfaced in another of Florence’s cases in which Henry Chlupsa, a now-former engineering firm executive, was convicted in a non-jury trial of bribing Madu.
Chlupsa did not learn of the tape until after he was convicted, and his attorney, Nelson Boxer, last week filed a motion alleging prosecutorial misconduct and asking the judge in his case to vacate the conviction.
In court papers, Boxer states that Madu — placed under oath by DOI — “denied accepting gifts, things of value or bribes from contractors.” He cited McElligott’s affidavit to allege the DA’s office knew of Madu’s denial at the time his client went to trial and should have turned it over.
“Presumably ADA Florence and other DOI Squad 3 investigators were aware of and supported the search warrant application,” Boxer wrote.
Call for a Hearing
In his letter to Obus, Agnifilo asked the court to hold a hearing with sworn testimony from DOI and other members of law enforcement “about when this tape recording was provided to the DA’s office.”
Prosecutors are required to turn over any evidence they collect during an investigation, including anything that is potentially helpful to the defense. Agnifilo has alleged Florence deliberately withheld evidence that undercut her prosecutorial theory and has asked Obus to dismiss the case.
Obus is considering that request.
Defending herself in court Friday, Florence declared she always “speaks truth to power.”
“I have been an ADA for almost 25 years and I have spent my career prosecuting the powerful,” she told the judge. “I use the prosecutor’s tools to advocate and empower people. And it has been my practice before open discovery was even a glimmer in the state legislature’s eye to practice open discovery. And this case is no different.”
A spokesperson for Vance said the district attorney would not comment on Agnifilo’s allegations until the judge rules on his requests. A message left for Florence was not returned.
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