“My father sent me an article from the New York Post about my former attorney Philip Smallman—and it made me very sick,” Albert Cleary somberly stated on the witness stand in a Brooklyn courtroom on Tuesday, August 18. 

A key prosecution witness in the 2005 murder trial of John Giuca, Cleary now explained why he provided false testimony. Cleary, 42, said that when he read about the egregious sexual misconduct that led to the suspension of Smallman’s law license in late 2024, he decided to reveal how his former lawyer convinced him to lie to Giuca’s jury. 

“I trusted him more than my own parents,” Cleary told the court regarding Smallman. Around the time of the Giuca case, the defense lawyer and longtime family friend commenced an affair with Susan Cleary, Albert’s mother. That romance—which Albert said that his younger brother once witnessed first-hand—led to the Clearys’ divorce. The family soon lost their palatial home in Prospect Park South.

Cleary’s testimony riveted a courtroom filled with supporters of John Giuca as well as the family of Mark Fisher, the Fairfield University student senselessly gunned down near Cleary’s house in October 2003. But after only 20 minutes, the proceedings abruptly came to a halt. Judge Danny Chun, a longtime ally of the DA’s office, summoned the lawyers for both sides to the bench. Although he had previously rejected a request from Giuca’s team—led by James Henning—to recuse himself from the hearing, Chun said that after observing Cleary’s emotional testimony, he now wanted to reconsider stepping aside. 

When the hearing resumed two days later, Chun shocked everyone following the case when he announced that he would indeed recuse himself. The reason? He knew too much about Smallman’s dubious track record in order to provide an impartial assessment of his impact on Cleary. It was the latest twist, and turn, in John Giuca’s endless quest to overturn his conviction for the murder of Mark Fisher. 

A Late-Night Party & Then a Murder

Giuca’s September 2005 trial created a tabloid frenzy. “Gangster Guilty in Gridder Slay—Punk Flabbergasted by Conviction,” declared one Post headline. Fisher had played football at Fairfield, leading Giuca to be dubbed the “Grid-Kid Killer.” 

Two years earlier, Fisher attended a late-night party at Giuca’s house in Prospect Park South. Around sunrise on a Sunday morning, Antonio Russo, a neighborhood friend of Giuca, shot Fisher a few doors down from the home of Cleary, who had also been at the party. 

At the trial, prosecutor—and future TV star—Anna-Sigga Nicolazzi convinced the jury that Giuca gave Russo the murder weapon, a .22 Ruger. Because she lacked any physical evidence connecting Giuca to the gun, Nicolazzi relied on testimony from the defendant’s inner circle.  

One day after the murder, Cleary retained Phil Smallman as his counsel. Meanwhile, Susan Cleary, Albert’s mother, was a high-ranking official in the Brooklyn Republican Party. Around the time of the September 2005 trial, Brooklyn DA Joe Hynes, a Democrat, faced a strong primary challenge (from State Senator John Sampson). Susan Cleary helped Hynes secure the Republican ballot line in the general election. 

Albert’s testimony certainly bolstered Nicolazzi’s case. He told the jury that Giuca, his “best friend,” kept a .22 at home. Cleary backed up Nicolazzi’s headline-friendly claims that his longtime pal belonged to a lethal gang called the “Ghetto Mafia,” with Giuca acting as Russo’s boss. According to Albert, the Ghetto Mafia was an offshoot of the Crips, even though most of its members were white (except Russo, who is Black). In order to join, a newcomer had to “get a body,” or kill someone. Although he did not belong to the gang, Albert asserted that John called him soon after the murder and said “Oh, we might have something to do with that.”

In court last week, Cleary stated that his trial testimony was false, explaining that he recanted because he feels “guilty about my lies and my silence about them.” When Giuca’s attorney Henning asked about his motivation for making the false statements in 2005, Albert replied, “It was to avoid being prosecuted for the murder of Mark Fisher.” Susan Cleary’s close ties to Brooklyn DA Hynes likely made her knowledgeable about such a scenario.  

At the time of the trial, Albert Cleary was on probation for an assault during a bar fight while he was a student at Fordham University. With Smallman as his counsel, Cleary received a five-year term of probation in May 2003. Last week he testified that his term ended “about six months after” Giuca’s trial, meaning early 2006. This strongly suggests that Cleary received a benefit (i.e. an early end to his probation) for his testimony, something previously not disclosed to Giuca’s counsel. The revelation could help build a future challenge to Giuca’s murder conviction. 

What the Judge Told a Stunned Courtroom

In 2015 and 2021, Judge Danny Chun handled two separate hearings (known as 440s) in which Giuca’s legal team—then led by Mark Bederow—sought to overturn the conviction. The first focused on whether Nicolazzi disclosed the benefits given to John Avitto, a jailhouse witness who recanted his trial testimony; the second probed whether the prosecutor concealed statements by a non-testifying witness that exculpated Giuca. Chun upheld the conviction both times.

Prior to the recent hearing, Henning’s team asked Chun to recuse himself, citing his two previous rejections of Giuca’s claims. In rejecting that motion, Chun maintained that “it would be against judicial economy to impose this matter onto another judge,” making reference to the voluminous record of the trial and two previous hearings. “This court is best informed and positioned to openly consider the evidence and issues” raised in Giuca’s latest 440 proceeding, Chun vowed. 

Asked for comment regarding Chun’s sudden decision to bow out, Brooklyn DA Eric Gonzalez’s spokesperson Oren Yaniv replied that it was not out of the ordinary, because the case is “just going to go before a different judge, like with any recusal.” This does not explain why Chun allowed the hearing to go forward, only to reverse his own stance regarding recusal after 20 minutes of testimony.  Smallman’s name appears nearly three dozen times in the 440 filing by Henning, so Chun should have known that the disgraced lawyer would be a central figure in the hearing. 

In his brief announcement that he would step away from the current proceeding, Chun told the stunned courtroom that he has known Smallman for roughly 25 years, stressing that it has been a “professional” (i.e. not social) relationship. In his role as deputy administrative judge for Brooklyn Supreme Court-Criminal, Chun explained, he has access to plenty of information. 

Chun further noted that the chief judge in Brooklyn Supreme-Criminal, Matthew D’Emic, went to high school with Smallman. D’Emic’s relationship with Smallman goes back over 50 years, as both were in the class of 1970 at Xaverian High School in Bay Ridge. D’Emic now oversees the replacement of Chun, and his challenge will be to find someone unfamiliar with Smallman’s misdeeds.  

Giuca’s first appearance with the parole board is in 2029. He is currently incarcerated at Eastern Correction Facility (in Ulster County), where a fellow resident recently burned to death inside a prison cell. Earlier this year Giuca received an associate’s degree in arts from the Bard Prison Initiative.  

When he stepped away from the case, Chun advised the defense and DA’s office that a new judge will be assigned soon after Labor Day. Stay tuned. 

Editor’s note: The following was added after publication to clarify details pertaining to Giuca’s 2005 trial.

In addition to allowing Albert Cleary to perjure himself during Giuca’s 2005 trial, attorney Phil Smallman advised his client to waive the immunity that prosecutors typically grant to witnesses supporting the DA’s case. Based on Smallman’s advice, Cleary agreed to proceed without protection from potential prosecution when he first took the stand before the grand jury in late 2004.

As Cleary explained at the August 18 hearing, his fear that he might be indicted for Mark Fisher’s murder led him to make incriminating statements against Giuca. As Giuca’s current attorney James Henning stated in his 440 filing, Smallman “inexplicably counseled” his client to decline immunity. Without it, Cleary now faced major consequences if he backtracked.

The wisdom of the courthouse trenches is that when witnesses agree to waive immunity, they are getting something in return from prosecutors (e.g., assistance in a different case). Such deals are not explicitly stated, because that would require disclosure to the defense, which would then use that info to impugn the witness.

It’s quite plausible that Cleary’s curtailed probation sentence was a reward for his testimony. Smallman did not respond to The Indy’s requests for comment. In Giuca’s current proceeding, Cleary is represented by veteran defense lawyer Ron Kuby, who is known as a zealous advocate for his clients’ best interest.