memorandum of law supporting motion to vacate

8/12/2019 Memorandum of law supporting motion to vacate

1/175

1

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: CRIMINAL TERM PART X--------------------------------------------------------------------xTHE PEOPLE OF THE STATE OF NEW YORK,

Respondent, Indictment No. 10641/90

-against-NOTICE OF MOTION

JOHNNY HINCAPIE,

Defendant.--------------------------------------------------------------------x

PLEASE TAKE NOTICE, that upon the annexed affirmation of Leah M.

Busby, duly executed on the 25 th day of November, 2013, the Memorandum of

Law filed herewith and the exhibits thereto, and all proceedings previously held

herein, the undersigned will move this Court, Supreme Court of the State of New

York, Criminal Term, 100 Centre Street, New York, New York, at a day and time

to be set by this Court, for:

An order pursuant to Criminal Procedure Law 440.10 vacating the

judgment entered against Johnny Hincapie on January 3, 1992, or in the

alternative, an order granting an evidentiary hearing;

An order, pursuant to Criminal Procedure Law 440.30(5) to produce the

defendant at any hearing to be conducted for the purpose of determining this

motion; and


2/175

2

Such other and further relief as the Court may deem just and proper.

Dated: New York, New York November 25, 2013

_________/S/______________LEAH M. BUSBYRONALD L. KUBYLaw Office of Ronald L. Kuby

119 W. 23 rd Street, Suite 900 New York, New York 10011(212) 529-0223

Attorneys for Johnny Hincapie

TO: New York County District Attorneys Office One Hogan Place

New York, New York 10013


3/175

1



-against-AFFIRMATION

JOHNNY HINCAPIE,

Defendant.--------------------------------------------------------------------x

STATE OF NEW YORKss:

NEW YORK COUNTY

Leah M. Busby, an attorney duly admitted to practice as such in the Courts

of the State of New York, hereby affirms, under the pains and penalties of perjury,

as follows:

1. I am one of the attorneys for Johnny Hincapie, and I make this

Affirmation in support of the Motion to Vacate the Conviction of Johnny Hincapie

pursuant to Criminal Procedure Law 440.10.

2. I make this Affirmation upon the basis of personal knowledge and

information and belief. The sources of my information and belief include a review

of the documents in this case, conversations with my client, interviews with

witnesses, and the exhibits annexed to the Memorandum of Law.


4/175

2

3. I hereby incorporate by reference, as if fully set forth herein, the

Statement of Facts in the accompanying Memorandum of Law, pages 1-27.

4. The grounds for relief raised in this motion have not previously been

determined on the merits upon a prior motion or proceeding in a court of this state,

or upon an appeal from judgment, or upon a prior motion or proceeding in a

federal court.

WHERFORE, it is respectfully requested this Court vacate the conviction of

Johnny Hincapie pursuant to Criminal Procedure Law 440.10, or in the

alternative, order an evidentiary hearing.

Respectfully submitted,

_________/S/__________Leah M. Busby



5/175


6/175

i

TABLE OF CONTENTS

Table of Cases and Authorities ................................................................................. iv

Index of Exhibits ....................................................................................................... vi

STATEMENT OF FACTS ........................................................................................ 1

A. Introduction ........................................................................................... 1

B. The Crime .............................................................................................. 4

C. The Truth the Jury Never Heard: Johnnys Story and the New Evidence ........................................................................................ 6

i. New Evidence: Luis Monteros Affidavit andEvidence Obtained from FOIL Request ..................................... 7

ii. New Evidence: Anthony Andersons Affidavit ........................ 12

iii. Ricardo Lopezs Statement ....................................................... 13

D. Rounding Up the Wolfpack ............................................................. 15

E. Confession and Lineup ........................................................................ 18

F. Trial and Post-Conviction Proceedings ............................................... 23

G. A Trail of Believers ............................................................................. 25

H. Conclusion ........................................................................................... 26

ARGUMENT ........................................................................................................... 27

I. JOHNNY HINCAPIES CONVICTION SHOULD BE VACATED UNDER CRIMINAL PROCEDURE LAW 440.10(1)(g) ON THE GROUNDS THAT NEWLYDISCOVERED EXCULPATORY EVIDENCE, WHICHCOULD NOT HAVE BEEN PRODUCED AT TRIAL,


7/175

ii

CREATES NOT ONLY A PROBABILITY, BUT A NEARCERTAINTY OF A MORE FAVORABLE RESULTIF IT HAD BEEN INTRODUCED AT HIS TRIAL. ......................... 27

A. The Elements and Interpretation of Criminal ProcedureLaw 440.10(1)(g) ................................................................... 27

B. The Affidavit of Luis Montero ................................................. 30

i. Luis Montero Has Nothing To Gain By ComingForward ........................................................................... 30

ii. Monteros Consistent Statements and ClearMemory ........................................................................... 32

iii. The Recommendation for Dismissal s Corroborationof Monteros Account ..................................................... 33

C. The Affidavit of Anthony Anderson ......................................... 34

i. Andersons Consistency ................................................. 34

ii. Johnnys Serendipitous Meeting with Andersonand Andersons Basis for Not Coming ForwardEarlier.............................................................................. 36

iii. Space and Time ........................................................... 37

D. The Confession of Ricardo Lopez ............................................ 38

E. Conclusion ................................................................................ 39

II.

JOHNNYS CONVICTION SHOULD BE VACATEDUNDER CRIMINAL PROCEDURE LAW 440.10(1)(h)ON THE GROUNDS THAT JOHNNY IS FACTUALLYINNOCENT AND HIS CONTINUED INCARCERATIONVIOLATES HIS RIGHTS TO DUE PROCESS UNDERARTICLE 1, SECTIONS 5 AND 6 OF THE NEW YORK


8/175

iii

STATE CONSTITUTION AND THE EIGHTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATESCONSTITUTION. ............................................................................... 42

III. THIS COURT SHOULD RE- OPEN JOHNNY HINCAPIESSUPPRESSION HEARING BASED ON THE NEWEVIDENCE THAT HIS CONFESSION WAS OBTAINEDIN VIOLATION OF HIS DUE PROCESS RIGHTSUNDER THE NEW YORK STATE AND FEDERALCONSTITUTIONS. THE NEW EVIDENCE ESTABLISHESTHAT JOHNNY HINCAPIES CONVICTION MUST BEVACATED PURSUANT TO SECTIONS (1)(b), (1)(d), (1)(f),AND (1)(h) OF CRIMINAL PROCEDURE LAW 440.10. ............ 45

CONCLUSION ........................................................................................................ 51


9/175

iv

TABLE OF CASES AND AUTHORITIES

Cases

Hincapie v. Greiner,56 Fed. Appx. 61 (2d Cir. 2003) .............................................................................. 38

People v. Balan,107 A.D.2d 811 (2d Dept. 1985) ............................................................................. 28

People v. Bedessie,19 N.Y.3d 147 (Ct. App. 2012) ................................................................... 45-46, 49

People v. Bermudez,

25 Misc.3d 1226A (Sup. Ct., N.Y. County 2009) ............................................. 42-45

People v. Fuller,29 Misc.3d 1207(A) (Sup. Ct., N.Y. County 2010) . ................................................ 50

People v. Huggins,144 Misc.2d 49 (Sup. Ct., N.Y. County 1989) ............................................ 27-28, 35

People v. Latella,112 A.D.2d 321 (2d Dept. 1985) ............................................................................. 28

People v. Lemus,2005 N.Y. Misc. LEXIS 3611 (Sup. Ct., N.Y. County, Oct. 25, 2005) ............ 29, 41

People v. Salemi,309 N.Y. 208 (1955), cert. denied, 350 U.S. 950 (1956) .................................. 28, 43

People v. Stokes,83 A.D.2d 968 (2d Dept. 1981) ............................................................................... 35

People v. Tankleff,49 A.D.3d 160 (2d Dept. 2007) ................................................................... 29, 37, 40

People v. Tarsia,50 N.Y.2d 1 (Ct. App. 1980) ................................................................................... 50
http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=29+Misc.+3d+1207%28A%29%2520at%25201207Ahttp://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=29+Misc.+3d+1207%28A%29%2520at%25201207Ahttp://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=29+Misc.+3d+1207%28A%29%2520at%25201207Ahttp://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=29+Misc.+3d+1207%28A%29%2520at%25201207A


10/175

v

People v. Vasquez,36 Misc.3d 1236(A) (Sup. Ct., N.Y. County 2012) ................................................. 38

People v. Wheeler,25 Misc.3d 690 (Sup. Ct., Kings County 2009) ...................................................... 42

People v. Wise,194 Misc.2d 481 (Sup. Ct., N.Y. County 2002) ...................................................... 29

Authorities

U.S. Const. Amend. IV .......................................................................... 42, 45, 49-51

U.S. Const. Amend. VIII ....................................................................... 42, 45, 49-51

N.Y. Const. Art. I ................................................................................... 42, 45, 49-51

C.P.L. 440.10 ................................................................................................ passim

C.P.L. 440.30 .................................................................................................. 28-29

Ronald Sullivan, 4 Are Given Maximum Sentences inUtah Tourists Subway Murder, The New York Times ,Jan. 4, 1992, Available at http://www.nytimes.com/1992/01/04/nyregion/4-are-given-maximum-sentences-in-utah-tourist-s-subway-murder.html. ............................................................................................... 15
http://www.nytimes.com/1992/01/04/http://www.nytimes.com/1992/01/04/


11/175

vi

INDEX OF EXHIBITS

Exhibits A1-A4: Renderings of 7 th Avenue Subway Station

Exhibit B: Affidavit of Johnny Hincapie

Exhibit C: Affidavit of Luis Montero

Exhibit D: Recommendation for Dismissal of Indictment of Luis Montero

Exhibit E: Affidavit of Anthony Anderson

Exhibit F: Videotaped Confession of Ricardo Lopez

Exhibit G: DD5 Report by Detective James Christie, dated Sept. 4, 1990

Exhibit H: Emily Sachar, Prosecutor Has Clean Confessions, Newsday ,Oct. 15, 1991

Exhibit I: Videotaped Confession of Johnny Hincapie

Exhibit J: Confession Transcript of Johnny Hincapie

Exhibit K: Vivian Shevitz Letter, dated May 22, 2007

Exhibit L: Affidavit of William Hughes

Exhibit M: William Hughes, The Murder That Changed New York City,City Limits Magazine , October 26, 2010, Available at http://www.citylimits.org/articles/4220#.Ukm3JxBHZFA

Exhibit N: Affidavit of Robert Dennison

Exhibit O: Resume of Johnny Hincapie


12/175

1



-against-

JOHNNY HINCAPIE,

Defendant.--------------------------------------------------------------------x

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO VACATECONVICTION OF JOHNNY HINCAPIE

STATEMENT OF FACTS

A. Introduction

The murder occurred days before the New York Post screamed to then-

mayor David Dinkins, Dave, Do Something! It was 1990 a year of 2,245

homicides, including children hit by stray bullets, robberies gone wrong, and as it

was the peak of the crack epidemic, scores of drug-related killings. By September

1990, the city, seemingly at its breaking point, had had enough. When, on

September 2, 1990, a group of teens attacked a family of tourists in a subway

station, leaving 22-year-old Brian Watkins dead, the city was enraged. The murder

was seen as especially callous because the purpose of the attack was to get money


13/175


14/175

3

affidavit of Anthony Anderson. Anderson, who admits his presence and

participation in the robbery, states that Johnny played no part in the robbery and

was not present when it took place.

The affidavits of Luis Montero and Anthony Anderson are also corroborated

by an earlier statement by Ricardo Lopez, who, like Anthony Anderson, was

actually involved in the mugging of the Watkins family. In his statement, Lopez

said Johnny was not present at the time of the robbery. This statement was

excluded from Johnnys trial as hearsay , but used against Lopez.

Finally, Luis Montero describes the brutality inflicted upon him by the

investigating detectives. He was on the cusp of confessing to a crime he did not

commit simply to make it stop. His affidavit provides new and important evidence

supporting Johnnys lon gstanding claims that his confession was coerced.

Johnny, who had no prior arrest record before this case, has spent the

majority of his life in prison for a crime he did not commit. He entered prison at

age 18, and he turned 41 on June 5, 2013.

Justice has been done for the Watkins family. Yull Morales, the member of

the group who actually stabbed Brian Watkins, confessed at the time of the murder

and remains in prison. The five other men convicted of second-degree felony

murder and robbery for their roles in the crime Anthony Anderson, Pascual


15/175

4

Carpenter, Emiliano Fernandez, Ricardo Lopez, and Ricardo Nova also are

imprisoned. It is now time to do justice for Johnny.

B. The Crime

On Labor Day weekend in 1990, Brian Watkins and his family were visiting

New York City from Utah to watch the U.S. Open tennis tournament. (Tr. 181). 1

On Sunday, September 2, 1990, after a day of watching tennis, Brian and his

family were en route to a restaurant in Greenwich Village from their hotel on West

53 rd Street. (Tr. 182-83). They entered the subway station at 53 rd Street and 7 th

Avenue shortly after 10:00 p.m. and purchased their subway tokens. (Id.) See,

Renderings of 7 th Avenue Subway Station, attached as Exhibits A1-A4. While

they were waiting for their tokens, they noticed a group of teenagers enter the

station without paying, after one member of the group had jumped the turnstile and

opened the exit gate for the others. (Tr. 184-85). Not thinking much of it, they

collected their tokens, passed through the turnstile, and walked down the steps to

the subway platform. (Tr. 187).

About an hour before the Watkins family had entered the subway station,

approximately 30 to 50 teenagers boarded a subway train in Queens to go dancing

at the Roseland Ballroom, a nightclub on West 52 nd Street. (Tr. 1972). The cover

charge at Roseland that night was $15 per person. A portion of the group did not

1 All references to the trial transcript will be cited as Tr. followed by the page number.


16/175

5

have enough money to get into Roseland, and at some point, hatched a plan to grab

a wallet from someone. (Id.) When the train pulled into the 7 th Avenue station, the

majority of the group left for Roseland. Those without enough money re-entered

the subway station. (Id.) One member of the group jumped the turnstile and opened

the exit gate, letting the others enter. (Tr. 184-85). The group then walked down

the stairs to the subway platform, and stood near the stairway. (Id.) Having spotted

the Watkins family and choosing them as the target for the mugging, the group

proceeded to attack the family. (Tr. 1972).

Brians father, Sherwin, was knocked to the ground and his right back

pocket and left front pocket were torn open with a box cutter. (Tr. 194). As a

result, he sustained a deep wound to his buttocks and leg. (Tr. 204). Brians

mother, Karen, was grabbed by the hair and kicked in the chest and face. (Tr. 286).

When Brian attempted to intervene, he was fatally stabbed in the chest. (Tr. 287).

Brians brother and sister -in-law were also present, but were not harmed. (Id.) A

member of the group of teenagers grabbed approximately $150 to $200 in bills

from Sherwins torn front pocket, and then the group ran out of the subway station.

(Tr. 204-05).

Brian Watkins ran after the group that had attacked his family, unaware that

his pulmonary artery was severed (Tr. 287). He collapsed on the first landing near

the token booth (Tr. 288). When Brians family caught up with him and realized he


17/175

6

had been stabbed, they called an ambulance. Brian died in the ambulance on the

way to St. Vincents Hospital. (Tr. 305 -06).

C. The Truth the Jury Never Heard : Johnnys Story and the NewEvidence

Johnny Hincapie, who is from Bayside, Queens, had recently turned

eighteen when the attack on the Watkins family occurred. (Hincapie Aff. at 1,

attached as Exhibit B). While Johnny did not play any part in the mugging, he was

with the larger group of teenagers who went dancing at Roseland. (Id. at 2). Johnny

was a talented dancer and at the time of the mugging, was interested in pursuing a

career as a professional dancer. (Id. at 1-2). As a teenager, Johnny worked at dance

clubs as a promoter, and performed as a dancer in several music videos. (Id.)

When the subway train pulled into the 7 th Avenue station, Johnny got off

with the larger group and exited the subway station. (Id. at 3). He did not go

immediately to Roseland he first needed to find Anthony Nichols, who had his

money. (Id.) Johnny had given his money to Nichols to hold onto because Johnny

was wearing designer jeans without pockets and didnt have anywhere to put it.

(Id.)

After a few minutes, Nichols had not come out of the subway station, so

Johnny asked the individuals he was with where he could find him. (Id. at 3).

Johnny then walked down the steps to the token booth level, to see if Nichols was

still in the subway station. (Id.) Johnny then passed through the exit gate without


18/175

7

paying and spoke to several other people he knew about Nichols whereabouts,

including a person who was sitting on a bench. (Id.) Johnny remembers being told

that some people may still have been downstairs, at the subway platform level.

(Id.)

Johnny then started to go down an escalator to look for Nichols. (Id.) On his

way down the escalator, he saw a large crowd of people rushing toward the stairs

and escalator, in his direction. (Id.) At that point, Johnny, unaware of what had

happened below but seeing people fleeing from something, turned around and

exited the station. (Id.) Johnny remembers bumping into a woman as he went back

up the stairs. (Id. at 3-4). When Johnny got out of the subway station, he ran into

Anthony Nichols, and they both walked to Roseland together. (Id. at 4). Johnny did

not find out that the crowd leaving the station was rushing out because of the

mugging until he saw the news the next morning. (Id.) Johnny had no knowledge

of a plan to mug anyone. (Id.)

i. New Evidence: Luis Monteros Affidavit and EvidenceObtained from FOIL Request

Johnnys account is corroborated by a recent affidavit sworn to by Luis

Montero, who, like Johnny, had gone with the larger group to Roseland but did not

participate in the mugging. Monteros affidavit is attached as Exhibit C. According

to Montero, a few minutes after the large group left the 7 th Avenue subway station

on its way to Roseland, a skinny guy, came down into the station and asked


19/175

8

about the whereabouts of a person whose name Montero does not recall and

Montero told him that he did not know where he was. (Montero Aff. at 3). Montero

did not know then, and does not know now the name of the skinny guy . (Id.) A

short time later, Johnny, with whom Montero was acquainted, walked into the train

station from the street level and approached Montero while he was sitting on a

bench. (Id.) See, Exhibit A3 for their approximate positions in the subway station.

Montero remembers that Johnny was looking for someone, but he doesnt

remember who that person was. (Id.)

Montero then remembers watching Johnny leave the station and then come

back into the station a short time later. (Id.) Johnny again approached Montero and

they spoke to each other about two attractive girls who were standing a few feet

away. (Id.) The girls eventually left. (Id.) Montero then saw Johnny walk toward

the electric stairs entrance to the subway platform. ( Id.) 2 As Johnny started to

walk down the escalator, Montero heard screaming. (Id.) The screaming was

coming from the floor below, the subway platform level, and Montero could not

see the platform from where he was sitting. (Id. at 4). To see what was going on,

Montero ran toward the middle escalator. (Id.) Montero saw Johnny, who was

walking down to the platform level and had almost reached the bottom of the

2 There were three ways to get to the subway platform from the token book level: two stairwayson either end of the platform or one escalator in the middle. See, Exhibits A1-A2.


20/175

9

escalator. (Id.) See, Exhibit A4, which shows where Montero stood when he saw

Johnny on the middle escalator.

Montero then saw Johnny turn around and come up the same escalator.

(Montero Aff. at 4). Montero remembers that the escalator was not running at the

time. (Id.) When Johnny turned around, Montero saw him bump into a woman who

gave Johnny a dirty look. (Id.) Montero then noticed the two girls they had been

checking out earlier running up from the subway platform. (Id.) At that point,

Montero panicked and ran to the bench to grab his shirt and then started to run out

of the station. (Id.) Montero saw Johnny ahead of him on the stairway as he was

running out of the station. (Id.) Montero then proceeded to Roseland. (Id. at 5).

Montero later found out that the commotion in the station was a result of the

mugging of the Watkins family on the subway platform.

Based on the information provided in Monteros affidavit, Johnny could not

have been involved in the mugging because Johnny was not on the subway

platform at the time it took place.

Statements made to detectives and prosecutors at the time of the mugging

investigation by a witness, known only as Ms. V, provide support for Monteros

affidavit. Ms. V is likely one of the girls that Montero and Johnny were checking

out. Johnny only very recently learned that Ms. V spoke to detectives and that she

had knowledge that could be helpful in proving his innocence. In response to a


21/175

10

FOIL request made on November 29, 2012, the District Attorneys Office released

to Johnny the Rec ommendation for Dismissal (RFD) of the indictment against

Luis Montero. The RFD, which was released on April 9, 2013, is attached as

Exhibit D . The RFD heavily cites Ms. Vs statements to detectives in support of

the dismissal of the indictment against Montero.

According to the RFD, Ms. V was on the subway platform with a friend

when the Watkins family was attacked. (RFD at 1). In response to witnessing the

attack, Ms. V and her friend ran up to the token booth level of the station. Ms. V

then saw the two Hispanic men run out of the station. (Id. at 3) Ms. V did not know

Luis Montero by name, but she noticed him and the Hispanic man he was with

because she felt they were leering at her and her friend. (Id. at 4). Because Ms. Vs

account of what took place matched Monteros account, the District Attorneys

Office concluded that the evidence was strongly supportive of Monteros

contention that he remained on a bench at token booth level [sic] throughout the

attack. ( Id. at 5).

Thus, Monteros account of wha t he saw and did on the night of the

mugging was deemed reliable by the District Attorneys Office at the time of the

original investigation. Monteros current affidavit conforms with his original

statements to the District Attorneys Office. Therefore, Monteros current affidavit

should be afforded the same credibility today.


22/175

11

Montero has not come forward to exonerate Johnny until now because he

was afraid of dealing with law enforcement again . (Montero Aff. at 10).

Montero, who was wrongfully held in jail for a year and a half before the

indictment against him was dismissed, had many valid reasons for fearing law

enforcement and for trying to put this case behind him.

While Montero was in jail on charges of participating in the Watkins

mugging, he received threatening letters purportedly from the KKK and his

mother was attacked by an unknown group of people because of Monteros alleged

participation in the mugging. (Id. at 9). Montero was so afraid after he was released

from jail that he left the United States to live in Colombia for several months. (Id.)

To make matters worse, a s a result of recordkeeping errors related to Monteros

participation in the Watkins mugging, he has had many problems with immigration

officials over the years. (Id. at 10). He has had to go to court several times to sort

out immigration matters related to this case. (Id.) With a family to care for,

Montero has been fearful of doing anything that might interfere with his ability to

obtain American citizenship. (Id.)

Today, Mon teros situation has changed. Montero recently passed his

citizenship test and background check and will be sworn in as an American citizen

in the near future. Montero has come forward now because he is less concerned


23/175


24/175

13

observe who was at the platform, I did not see Johnny at all in the platformduring the r obbery. Then as someone yelled, lets go, me and the otherfive exited the station up to the street level and ran to Roseland nightclub.Again, Johnny was not with us when we exited the subway station nor washe with us when we ran to Roseland. Only upon arriving to Roseland iswhen I first saw Johnny already on line with some girls.

(Id.)

Anderson also explains why he has not come forward until now: his attorney

advised him to keep [his] mouth shut about any information in the case.

(Anderson Aff. at 2). His attorney told him anything he said would hurt him

because he had already made an incriminating statement against himself. (Id.)

Anderson also states he did not know he was legally able to come forward because

he was and still [is] a layperson to the law. ( Id.)

In conclusion, Anderson states: I always knew that Johnny had nothing at

all to do with this crime. Therefore, I am coming forward now and speaking the

truth. I cannot allow an innocent man to continue to be in prison for a crime which

he was not involved. ( Id.)

iii. Ricardo Lopezs Statement

The confession of Ricardo Lopez, who was convicted of second-degree

murder and robbery along with Johnnys other co -defendants, provides even further

corroboration of Johnnys innocence . Johnnys jury never heard Lopezs statement ;

the trial court excluded it as hearsay. The relevant portion of Ricardo Lopezs

confession follows:


25/175

14

A: When we got out wewent upstairs. Then a that whole bunch of people like (Indicating.) there was 60 of us, and 50 of them left(Indicating.) and the ones that need money stood there, but the two ofthem left.

Q: Okay. A: And thats like it was eight of us. Q: Who was there then?

A: It was Rocstar [Morales], Emiliano, Score [Carpenter], Anthony, a who else? A what s his name Ricardo, me, Johnny, and Kevin.

Q: Okay. And they all needed money? A: (Shakes negatively.) No, Johnny and Kevin left.Q: Okay.

A: They left.Q: So all the others needed money. Right?

A: (Nods Affirmatively.) All of them. All six of us.

(Video Confession of Ricardo Lopez, disc enclosed as Exhibit F).

As if the fact that Johnny was not there needed further confirmation, Lopez

again clarified:

Q: So there were eight people surrounding the five? A: No. No. Six. (Indicating.)Q: There were six?

A: Because the two of them left.

(Id.)

This portion of Ricardo Lopezs confession, considered together with the

new evidence described above, would have given jurors reasonable doubts, if not

strong doubts, about Johnny Hincapies guilt. However, this evidence was not

available to Johnnys jury.


26/175

15

D. Rounding Up T he Wolfp ack

With the media calling the Watkins mugging a wolfpack attack, 3 police

immediately began rounding up suspects. The police investigation began with two

men, Antonio Gonzalez and Ivan Vazquez, who had been standing outside of the

7th Avenue subway station drinking beer during the mugging. (Tr. 372). Gonzalez,

a locksmith, and Vasquez, a dispatcher, both were employees of a nearby hotel and

had recently gotten off of work. (Tr. 371). When the large group of teenagers

initially left the subway station, Gonzalez and Vasquez saw most of the group walk

toward Roseland, while about 12 individuals, both male and female, stayed behind

and hung out near the subway entrance. (Tr. 384).

According to both Gonzalez and Vasquez, 3 to 5 members of the group then

re-entered the subway station. (Tr. 431). One individual stayed outside of the

station and they saw a couple of guys go up and down the subway steps a few

times. (Tr. 433). A few minutes later, Gonzalez and Vasquez heard screaming and

saw the group of teenagers they had noticed earlier running out of the subway

station and then run in the direction of Roseland. (Tr. 438). Gonzalez went down

the steps and found Karen Watkins, bleeding and distraught. (Id.) Vasquez went

home. (Tr. 439). The police were called, and Gonzalez stayed at the scene,

3 See , Ronald Sullivan, 4 Are Given Maximum Sentences in Utah Tourists Subway Murder,The New York Times , Jan. 4, 1992, Available at http://www.nytimes.com/1992/01/04/nyregion/4-are-given-maximum-sentences-in-utah-tourist-s-subway-murder.html.


27/175

16

watching as Brian Watkins was sped off in an ambulance. (Tr. 399). Not knowing

what to do, Gonzalez returned to his office to calm down. (Id.) At some point later,

he returned to the subway station and asked to speak with a police officer. (Id.)

Gonzalez informed a detective that he knew where the people responsible

for the crime were. (Tr. 400). He walked with several detectives the few blocks to

Roseland, and after walking through the club, he pointed out one of the men he had

seen running out of the subway station, who was later identified as Anthony

Anderson. (Id.) Gonzalez also pointed out a Hispanic man he claimed to have seen

standing outside of the subway station while the others were underground. (Tr.

402). This man was Luis Montero.

One of the detectives who worked on this case was Detective Ronald Casey.

On the night of the crime, Det. Casey first examined the scene at the subway

station, and then went to speak with the family at St. Vincents Hospital. (Tr. 592).

After speaking with the family, he drove them to Roseland, where show-ups of

Anthony Anderson and Luis Montero were conducted, with the family remaining

inside the vehicle. (T. 600-05). At the time of the show-ups, the Watkins family

stated that both Anderson and Montero had participated in the attack on them. (Id.;

RFD at 2).

Anderson and Montero were then taken to the Midtown North police

precinct, where they were interrogated by Det. Casey, and another detective,


28/175


29/175

18

with an orange box cutter, they surrounded a family and slashed an older mans

pocket to take his wallet.

It was not until later that night, around 8:00 p.m., that detectives left to look

for Johnny Hincapie, based on information provided by Emiliano Fernandez. (Tr.

1594-95, 1977). Emiliano Fernandez also provided detectives with two other

names: Anthony Nichols and Kevin Mouton, two individuals who were never

charged in relation to the mugging. See, DD5 of Detective James Christie, dated

Sept. 4, 1990, attached as Exhibit G.

E. Confession and Lineup

Based on the information provided by Emiliano Fernandez, detectives

arrived at Johnny Hincapies home around 9:00 p.m. on September 3 rd. (Tr. 2688).

The detectives asked for Johnny, and when he appeared, grabbed him by the arm

and ordered him to accompany them to the police station. (Tr. 2692, 2696, 2913).

When Johnnys mother asked the detectives if he needed a lawyer, they asked how

old he was, and told her that an 18-year-old did not need a lawyer. (Tr. 2261-3,

2693-4, 2696, 2739).

Johnny was then taken to the Midtown North police precinct and was

interrogated by Detective Ronald Casey, Detective James Christie, and Detective

Carlos Gonzalez. Det. Christie told Johnny that Emiliano Fernandez had given up

his name as a participant in the robbery. (H. 1261). While Det. Christie testified


30/175

19

that he used no physical force and did not raise his voice at Johnny, (H. 1262),

what actually happened in the interrogation room was much less benign.

Detectives Christie and Gonzalez introduced themselves to Johnny, asked if

Johnny was hungry or thirsty, and left the interrogation room. (Hincapie Aff. at 5).

Johnny was then left alone with Det. Casey, who had been lying on a bunk bed in

the room, smoking a cigarette. (Id.) When Johnny told Det. Casey that he did not

know about the robbery, Det. Casey repeatedly told him he was lying, and that if

he wanted to go home, he would admit his involvement. (Id. at 6). When Johnny

continued to tell Det. Casey that he knew nothing about the robbery, Det. Casey

became increasingly violent. (Id. ) He blew smoke in Johnnys face, screamed at

him, pulled his hair, slapped him, and pushed Johnny to the floor with his foot.

(Id.) Finally, Det. Casey told him that in order to go home, he needed to memorize

the story given to him. (Id. at 6-7). He then told Johnny the details of the robbery

and the role Johnny was to have played in it. (Id. at 7).

When Johnny asked what a lawyer would say about Det. Casey telling him

to memorize a story that Johnny knew to be untrue, Det. Casey said that the lawyer

would advise him to memorize the story. (Id.) Det. Casey recited the story Johnny

was to memorize several more times, and when Johnny had it memorized to Det.

Caseys liking, he called in Det. Christie to write the story down. ( Id. at 7). Johnny

was told to sign off on the story and was then moved into another room where he


31/175

20

was videotaped reciting the same story to Assistant District Attorney Donna

Henken. 4 (Id. at 8-9). Unlike other suspects who were given the opportunity to

write their own statements (Tr. 631, 787, 804), Johnny was not given this option.

(Tr. 2203).

The same detectives that had interrogated him and took down the statement

sat in the room watching. (Hincapie Aff. at 9). In the video of his confession,

Johnny can be seen responding to ADA Henkens questions with one -word

affirmative responses, and watching the detectives as he speaks. See, Hincapie

Confession, disc attached as Exhibit I and transcript attached as Exhibit J. When he

explains his involvement in the robbery, he tends to use words like they and

them instead of I or we. ( Id.)

Beyond his own affidavit, proof that Johnnys confession was false is

provided in the confession of Johnnys co-defendant, Pascual Carpenter, who

confessed and was convicted of playing the precise role in the robbery to which

Johnny confessed. In Johnnys confession, he stated that during the robbery, he

grabbed a woman from behind and pulled her off of one of his friends. (Id.)

However, Carpenter confessed, much earlier in the day, that he was the person who

held the woman back during the incident. (Tr. 650, 1277). Carpenters written

4 ADA Donna Henken, who was 33 years old in 1990, was a relatively novice prosecutor September 2, 1990 was her first night alone on the homicide chart. See, Emily Sachar,Prosecutor Has Clean Confessions, Newsday , Oct. 15, 1991, attached as Exhibit H.


32/175

21

statement was taken at 6:15 a.m. on September 3 rd. (Tr. 1188). Johnnys statement

was taken more than 16 hours later, at about 10:45 p.m. (Tr. 1230). Only one

woman was grabbed during the mugging, Brian Watkins mother, Karen Watkins.

Michelle Watkins, the only other woman present, told officers that she had not

been touched. (H. 377).

At some point during Johnnys interview with Detective Casey, Johnny was

shown two photos, one of Karen Watkins and one of Michelle Watkins, and asked

to point to a photo of the woman he confessed to grabbing. (T.706). Detective

Casey testified that Johnny identified the correct photo. (Id. ) However, Johnnys

version of events is quite different: Detective Casey pointed to the photo he should

pick and Johnny replied, okay . (Hincapie Aff. at 8 ).

At trial, Johnny attempted to show that his confession was involuntary and

unreliable. Aside from cross-examinations of the relevant detectives, Johnny also

presented evidence, based on tests administered before and after the robbery, that

he had an impaired ability to comprehend verbal and written words, and that this

condition is exacerbated by anxiety. (Tr. 2576, 2584, 2777, 2867, 2890).

Finally and perhaps most important, Luis Monteros affidavit supports

Johnnys account of how he came to confess. In his affidavit, Montero describes

the physical and verbal abuse that he was subjected to after his arrest, including

being hit on the sides of his body with some sort of weapon and being choked.


33/175

22

(Montero Aff. at 5-8). Montero also states that he was told to sign a piece of paper,

but he refused to do so. (Id. at 7). Montero was so scared and confused after hours

of questioning, accusations, and abuse that by a certain point he was ready to

confess to playing a part in the mugging. (Id. at 8). Luckily for Montero, he was

too late. When Montero told a detective that he was ready to speak with the DA, he

was told that he had lost his chance because the ADA conducting the video-taped

interviews had already left for the night. (Id.)

The only other evidence presented at trial to corroborate Johnnys

confession was a line-up viewed by Karen Watkins. During a line-up that included

Johnny, Ms. Watkins said Johnny looked vaguely familiar. (H. 1154). However,

Ms. Watkins also could not identify Johnny at trial. (Tr. 316-17). In other line-ups

involving Johnnys co -defendants, Ms Watkins used similar language, stating that

certain individuals looked familiar, or similar, but those individuals were in

fact fillers, line-up members who were not suspects. (Tr. 762, 768). The Watkins

family, understandably distraught after the attack, misidentified a total of 27 fillers

during various line-ups. In line-ups that the other witnesses Sherman Watkins,

Todd Watkins, Michelle Watkins, Antonio Gonzalez, and Ivan Vasquez viewed

that included Johnny, no witnesses identified Johnny as a participant in the

robbery. The truth is that some of the co-defendants looked similar, especially

Johnny and Emiliano, and both the witnesses and detectives had trouble


34/175

23

differentiating between them. This was established at trial, when an investigating

officer was asked to identify Emiliano Fernandez in the courtroom, and he pointed

to Johnny Hincapie. (Tr. 1203). The officers explanation for this mistake was,

gee they look alike. ( Id.)

Luis Montero was also mistakenly identified in a show-up on the night of the

mugging. (RFD at 2). In preparation for trial, the District Attorneys Office

learned that the Watkins family had not actually recognized Montero in the show-

up, but rather his peace sign necklace, which several of the other defendants also

wore. (Id.)

Unfortunately for Johnny, the significant evidence that his confession was

coerced and that the line- up was unreliable was insufficient to give Johnnys jurors

a reasonable doubt as to his guilt.

F. Trial and Post-Conviction Proceedings

The New York County District Attorneys Office originally divided the

eight co-defendants into two groups of four, ostensibly in an effort to avoid Bruton

issues. Johnny Hincapie was tried in the first trial of four with Emiliano Fernandez,

Ricardo Nova, and Pascual Carpenter. The D.A.s decision to try Johnny in this

group assured that his jury would not hear Lopezs exculpatory statement. All four

defendants were convicted of second-degree murder and robbery on November 10,


35/175


36/175


37/175

26

to Johnnys other six co -defendants as well. (Id.) Of those co-defendants, two

agreed to meet with Hughes, two said their attorneys advised them not to speak

about the case, and two did not respond to numerous letters from Hughes. (Id.) The

two co-defendants Hughes visited, Morales and Fernandez, told Hughes they could

not remember whether Johnny was present when the crime took place, or whether

Johnny was involved in the crime in any way. (Id.)

Robert Dennison met Johnny when he was giving a presentation to prisoners

about how to best position themselves for release on parole. (Dennison Aff. at 1,

attached as Exhibit N). Johnny told Dennison his story, and Dennison was struck

by Johnnys sincerity and found his story believable and compelling. (Id. at 1-2).

Thereafter, Dennison met Hughes and the two have been working together to prove

Johnnys innocence since that time. (Id. at 2-3).

H. Conclusion

While in prison, Johnny Hincapie has earned his GED, his bachelors degree

in behavioral science, and a masters degree in professional studies and urban

ministry. Johnny has also been involved in the prisons theater program. When

released from prison, Johnny plans to start a non-profit geared toward providing

access to theater education to low-income children. See, Exhibit O, Resume of

Johnny Hincapie.


38/175

27

The newly discovered evidence in this case, including the affidavits of

Anthony Anderson and Luis Montero, together with the excluded statement of

Ricardo Lopez, clearly establish that Johnny was not present when the mugging of

the Watkins family occurred. Johnny, a man with a demonstrated interest and

capacity to better New York City and society in general, has spent his adult life

confined in a state penitentiary. It is time to do justice for Johnny.

ARGUMENT

I. JOHNNY HINCAPIES CONVICTION SHOULD BE VACATEDUNDER CRIMINAL PROCEDURE LAW 440.10(1)(g) ON THEGROUNDS THAT NEWLY DISCOVERED EXCULPATORYEVIDENCE, WHICH COULD NOT HAVE BEEN PRODUCED ATTRIAL, CREATES NOT ONLY A PROBABILITY, BUT A NEARCERTAINTY OF A MORE FAVORABLE RESULT IF IT HAD BEENINTRODUCED AT HIS TRIAL.

A. The Elements and Interpretation of Criminal Procedure Law 440.10(1)(g)

The power to grant a motion to vacate a defendants conviction based on

newly discovered evidence is purely statutory and may be exercised only when

the requirements of the statute have been satisfied, the determination of which

rests in the courts sound discretion. People v. Huggins, 144 Misc.2d 49, 51-52

(Sup. Ct., N.Y. County 1989).

Crim. Proc. L. 440.10(1)(g) provides that the Court may vacate a judgment

of conviction where:


39/175

28

[n]ew evidence has been discovered since the entry of a judgment basedupon a verdict of guilty after trial, which could not have been produced bythe defendant at the trial even with due diligence on his part and which is ofsuch character as to create a probability that had such evidence beenreceived at the trial the verdict would have been more favorable to thedefendant; provided that a motion based upon such ground must be madewith due diligence after the discovery of such alleged new evidence.

Crim. Proc. L. 440.10(1)(g).

Courts have identified six prerequisites to the granting of a motion to vacate

a conviction based on newly discovered evidence. Those elements are:

1. it must be such as will probably change the result if a new trial is granted;2. it must have been discovered since the trial;3. it must be such as could not have been discovered before the trial by the

exercise of due diligence;4. it must be material to the issue;5. it must not be cumulative to the former issue;6. it must not be merely impeaching or contradicting the former evidence.

Huggins, 144 Misc.2d at 52 (citing People v. Salemi, 309 N.Y. 208, 216 (1955),

cert. denied, 350 U.S. 950 (1956); People v. Latella, 112 A.D.2d 321, 322 (2d

Dept. 1985); People v. Balan, 107 A.D.2d 811, 814-15 (2d Dept. 1985)).

Pursuant to Crim. Proc. L. 440.30, upon considering the merits of a motion

to vacate, a court may grant the motion without a hearing if:

(a) The moving papers allege a ground constituting legal basis for the

motion; and(b) Such ground, if based upon the existence or occurrence of facts, is

supported by sworn allegations thereof; and(c) The sworn allegations of fact essential to support the motion are either

conceded by the people to be true or are conclusively substantiated byunquestionable documentary proof.


40/175

29

Crim. Proc. L. 440.30(3). If a court elects to conduct a hearing, the defendant

has the burden of proof, and must prove by a prepondera nce of the evidence every

fact essential to support the motion. Crim. Proc. L. 440.30(6).

When reviewing new evidence, courts must consider the cumulative effect

of the new evidence and determine if, had such evidence been received at the

trial, th e verdict would have been more favorable to the defendant. People v.

Tankleff, 49 A.D.3d 160, 181 (2d Dept. 2007). In making this determination,

courts will look to whether the new evidence would have significantly

undermined the Peoples case. People v. Lemus, 2005 N.Y. Misc. LEXIS 3611

(Sup. Ct., N.Y. County, Oct. 25, 2005). One crucial consideration is whether the

witnesses providing new evidence were unrelated to each other and whether

their genesis as witnesses was separated by both space and time. Tankleff, 49

A.D.3d at 180-81. Courts also look to whether the missing evidence at trial

deprived the defendant from presenting an alternative theory of the case to the jury.

People v. Wise, 194 Misc.2d 481, 490 (Sup. Ct., N.Y. County 2002).

In this case, the new evidence consists of the affidavits of Anthony

Anderson and Luis Montero. Because of the weakness of the prosecutions

original case against Johnny, either of these affidavits standing alone would

constitute a basis to vacate Johnnys con viction. Considering the cumulative effect

of the new evidence, in combination with the weak basis on which Johnny was


41/175

30

convicted, it is clear that Johnny was wrongfully convicted and his conviction must

be vacated.

B. The Affidavit of Luis Montero

Luis Monteros affidavit is honest and highly reliable for several reasons.

Montero had many reasons to continue to stay uninvolved in this case, but he chose

to come forward because he thought it was the honorable thing to do. In addition,

Montero has given his account of the night in question several different times to

different individuals, and each version has been the same . Monteros memory of

the night in question is clear the events of that night had a huge impact on his life

and because of that, he remembers the night very well.

i. Luis Montero Has Nothing To Gain By Coming Forward

Luis Montero already has lost a great deal because of this case and he

feared that he risked losing even more should he share the information he

possessed related to Johnny. Montero was wrongfully held in jail for 18 months as

a result of his alleged participation in the mugging, and while there, was sent

threatening letters purportedly from the KKK. (Montero Aff. at 9). Monteros

mother was attacked because of his perceived involvement in the mugging. (Id.)

When Montero left jail, he was afraid people were following him. (Id.) Montero

was so afraid that he left the country for Colombia for several months. (Id.)


42/175

31

When Montero finally came back to the United States, this case haunted him

for years. Montero faced many issues with immigration authorities because of

clerical problems with his record as a result of his wrongful arrest. (Id. at 10).

Finally, within the next few months, and more than 20 years after his wrongful

arrest, Montero will be sworn in as an American citizen.

With the longstanding trauma this case has caused Luis Montero, it is not

hard to believe that he never wished to approach law enforcement about his

knowledge related to Johnny Hincapie. When Montero told the truth back in 1990,

the detectives did not believe him. Instead, they put him in jail for a year and a

half. Montero cannot be faulted for thinking that no possible good could come of

allowing law enforcement into his life again.

When William Hughes and Robert Dennison approached Montero about

Johnnys case in 2012, Monteros life had come a long way he was (and still is)

gainfully employed, had children, and was just a short time away from becoming a

citizen. Montero was less fearful than he had been in the past about the

immigration consequences of coming forward, and decided to speak about his

knowledge of Johnnys innocence. (Dennison Aff. at 2-3). From the first time

Montero was approached by representatives of Johnny, Montero has never asked

for anything in return. (Id. at 3).


43/175

32

ii. Monteros Consistent Statements and Clear Memory

According to Hughes, when initially approached, Montero gave a detailed

account of his recollections of Hincapies movements and whereabouts in the

minut es before Brian Watkins was killed with no prompting, coaching or leading

questions of any kind. (Hughes Aff. at 3). Montero drew a detailed sketch on a

napkin in his kitchen for Hughes and Dennison, showing where he was standing,

using arrows to indicate where he saw Hincapie enter and exit the 7 th Avenue

subway station on the E- line. ( Id. at 4). Hughes went to the subway station the

next day to see if his memory of the station was accurate, and it matched every

word he said, and furthermore dovetailed exactly with what Hincapie had been

telling me for six years. ( Id.)

When Montero was brought to the Law Office of Ronald L. Kuby in May

2013 to prepare an affidavit, Montero expressed concern about any potential

negative effects his coming forward would have on him, especially on his

immigration status and his employment. (Id.) When made aware that his coming

forward would not negatively affect him, he reluctantly provided an overview of

what happened on September 2, 1990. (Id.) Montero provided the same account,

with the same details, that he had previously told Hughes and Dennison. (Id.)


44/175

33

iii. The Recommendation for Dismissal s Corroboration ofMonteros Account

According to the Recommendation for Dismissal (RFD) of the indictment

against Luis Montero, a young woman, referred to only as Ms. V, made statements

to detectives that provided corroboration of Monteros account of events. Ms. Vs

statements were heavil y relied on by the District Attorneys Office in its decision

to dismiss the indictment against Montero. Notably, Montero provided his account

to Johnnys team before the team obtained the RFD. (Hughes Aff. at 4).

According to the RFD, Ms. V was on the subway platform with a friend

when the Watkins family was attacked. (RFD at 1). In response to witnessing the

attack, Ms. V and her friend ran up to the token booth level of the station. Ms. V

then saw the two Hispanic men run out of the station. (Id. at 3) Ms. V did not know

Luis Montero by name, but she noticed him and the Hispanic man he was with

because she felt they had been leering at her and her friend. (Id. at 4).

The District Attorneys Office determined that Ms. Vs account matched

Monteros account sufficiently to establish the reliability of Monteros statements,

and was strongly supportive of Monteros contention that he remained on a bench

at token booth level [sic] throughout the attack. ( Id. at 5). The District Attorneys

Office deemed Monter os account of what he saw and did on the night of the

mugging reliable at the time of the original investigation. Because Monteros


45/175

34

statements then are consistent with his statements today, this court should likewise

deem his current affidavit reliable.

C. The Affidavit of Anthony Anderson

There is no reason to doubt the reliability and credibility of Andersons

affidavit. Andersons consistent account of which individuals were involved in the

mugging, the method by which Johnny learned of Andersons will ingness to come

forward on his behalf, Andersons reasonable basis for not sharing the information

he possessed, and the space and time between the affidavits of Anderson and

Luis Montero, all establish that Andersons affidavit is the truth.

i. Anderso ns Consistency

Anderson has been consistent all along. In Andersons original statements

to detectives, he implicated himself along with several others in the mugging, but

not Johnny:

ADA Shiels: Now, you said that [Anthony Anderson] gave somenames of persons that he was with. Do you recall whatnames he gave?

Det. Casey: He gave street names. He gave Score, Trauma, RockStar, Ricardo, Ricky, Emiliano.

(H. 267).

The real names of these individuals are as follows: Score was Pascual

Carpenter; Trauma was Emiliano Fernandez; Rock Star was Yull Morales, Ricardo

was Ricardo Nova, Ricky was Ricardo Lopez. Emiliano is the same Emiliano


46/175

35

referred to as Trauma. (H. 268 -89). Anderson later gave additional names to

Detective Casey, Joe Santana and Keith Aldridge, as people he was with. (H.

268). Santana and Aldridge were brought in for questioning and eventually

released. (T.785). Anderson never mentioned Johnny Hincapie.

Andersons recent affidavit constitutes newly discovered evidence even

though Anderson gave previous statements about the Watkins mugging to

detectives: it is not that the witness is newly discovered, but it is the fact that since

the trial, the witness has, for the first time, made statements which makes such

evidence newly discovered . People v. Stokes, 83 A.D.2d 968, 969 (2d Dept.

1981). Until recently, Anderson had not spoken to anyone about his knowledge

that Johnny was not involved in the mugging. Andersons affidavit is not a

repetition of his previous statements: Johnny never knew that Anderson

specifically remembered that he was not present during the mugging. For this

reason, this case is different from People v. Huggins, where the court held:

The alleged new evidence is former codefendant Levon Crawfords proffered testimony that defendant was not in any way involved in thecommission of the robbery, but rather, he just stood there. However,Crawford's proffered testimony is a virtual repetition of what Crawford saidduring his plea allocution. Defendant makes no claim that Crawford had any

potential testimony not known to him at the time of the trial. Therefore, itdoes not satisfy CPL 440.10 (1) (g) s requirement that it be new evidencethat was discovered since the entry of a judgment based upon a verdict ofguilty after trial.

People v. Huggins, 144 Misc.2d 49, 52 (Sup. Ct., N.Y. County 1989).


47/175

36

In Andersons recent affidavit, he states that he and five others planned

and committed a robbery. (Anderson Aff. at 1). This is clearly consistent with his

original statement that he, Carpenter, Fernandez, Morales, Nova, and Lopez

participated in the crime. Moreover, each of the five other suspects interviewed

corroborated Andersons account of the six individuals involved. (Tr. 1470, 1187-

89).

Anderson told the truth then: Anderson, along with Pascual Carpenter,

Emiliano Fernandez, Yull Gary Morales, Ricardo Nova, and Ricardo Lopez were

the only participants in the Watkins mugging. Today, Anderson is simply telling

more of the truth: Johnny Hincapie was not involved. Johnny Hincapie was not

there.

ii. Johnnys Serendipitous Meeting with Anderson and AndersonsBasis for Not Coming Forward Earlier

While in prison at Sing Sing, Johnny ran into Anthony Anderson in the

visitors room. (Hincapie Aff. at 10). Johnny asked Anderson if they could meet to

talk at some point in the prison library. (Id.) When they later met, Anderson told

Johnny that he knew that Johnny was not involved in the mugging, but had been

told by his lawyer not to speak about the case to anyone. (Id.) Johnny asked

Anderson if he would now be willing to submit an affidavit on his behalf, and

Anderson agreed. Anderson never asked Johnny for anything in return. (Id.)

Anderson has no possible motive to lie: he and Johnny were never friends and are


48/175

37

not friends now. Anderson is not getting anything out of coming forward, except of

course clearing his conscience.

It is understandable that Anderson had not come forward until he was

approached by Johnny. Andersons attorney had advised him to keep [his] mouth

shut about any information in the case. (Anderson Aff. at 2). His attorney told him

anything he said would hurt him because he had already made an incriminating

statement against himself. (Id.) Anderson also stated he did not know he was

legally able to come forward because he was and still [is] a layperson to the law.

(Id.) Anderson ends his affidavit by stating, I always knew that Johnny had

nothing at all to do with this crime. Therefore, I am coming forward now and

speaking the truth. I cannot allow an innocent man to continue to be in prison for a

crime which he was not involved. ( Id.)

iii. Space and Time

In evaluating the reliability of new evidence, one crucial consideration is

whether the witnesses providing new evidence were unrelated to each other and

whether their genesis as witnesses was separated by both space and time.

Tankleff, 49 A.D.3d at 180-81. The genesis of Anthony Anderson and Luis

Montero as witnesses was separated by both space and time. Andersons

affidavit came about because of a chance meeting between Anderson and Johnny

in prison in 2009. (Hincapie Aff. at 10).


49/175

38

In 2012, Hughes located Luis Montero with the help of former New York

State Board of Parole Chairman Robert Dennison. (Hughes Aff. at 3). Hughes and

Dennison learned that no detectives or lawyers had ever approached Montero about

his knowled ge related to Johnnys involvement in this case. When located by

Hughes and Dennison, Montero was not in prison and had not been in contact with

Anthony Anderson. Separated in time and space from Johnnys encounter with

Anderson in prison, Montero corrobo rated Andersons statement that Johnny was

not involved in the mugging. (Id. at 3-4).

D. The Confession of Ricardo Lopez

In the context of CPL 440.10 motions, courts have considered evidence,

even if it is not newly discovered, when it corroborates oth er newly discovered

evidence. People v. Vasquez, 36 Misc.3d 1236(A), at *33 (Sup. Ct. N.Y. County

2012). In Vasquez, the Court was more inclined to consider such evidence because

the motion did not rest on that evidence alone. Id. at 33-34.

Although it is not new evidence, and was not admissible at trial 6, the

confession of Ricardo Lopez should be considered along with the new evidence

because it strongly corroborates the affidavits of Anderson and Montero. Lopezs

original confession establishes that more reliable evidence of Johnnys innocence

6 The Second Circuit held that Lopezs statement was rightfully excluded as hears ay. See,Hincapie v. Greiner, 56 Fed. Appx. 61, 62 (2d Cir. 2003).


50/175

39

exists, the genesis of which was separate in both space and time from the affidavits

of Anderson and Montero.

Ricardo Lopez was one of the six admitted participants in the Watkins

mugging, and he remains in prison today. Lopez confessed shortly after the

mugging, and the relevant portion of his confession reads as follows:

A: When we got out wewent upstairs. Then a that whole bunch of people like (Indicating.) there was 60 of us, and 50 of them left(Indicating.) and the ones that need money stood there, but the two ofthem left.

Q: Okay. A: And thats like it was eight of us. Q: Who was there then?

A: It was Rocstar[Morales], Emiliano, Score [Carpentier], Anthony, a who else? A whats his name Ricardo, me, J ohnny, and Kevin.

Q: Okay. And they all needed money? A: (Shakes negatively.) No, Johnny and Kevin left.Q: Okay.

A: They left.Q: So all the others needed money. Right?

A: (Nods Affirmatively.) All of them. All six of us.

* * * * *

Q: So there were eight people surrounding the five? A: No. No. Six. (Indicating.)Q: There were six?

A: Because the two of them left.

(Exhibit F).

E. Conclusion

Considering the cumulative effect of the newly discovered evidence, the

affidavits of Anderson and Montero significantly undermine the prosecutions


51/175

40

already weak case against Johnny Hincapie. The only real evidence against Johnny

was his confession. T he other evidence against Johnny was minimal. If the jury

had had the opportunity to weigh a confession that bore signs of coercion

against the testimony of Anderson and Montero, the jury would have almost

certainly come to a different conclusion about Johnnys guilt.

The Appellate Divisions conclusion in People v. Tankleff is instructive

here. In Tankleff, the court explained its procedure for evaluating the new evidence

under C.P.L. 440.10(g):

At th e original trial, the defendant s repudiated confession was the mostcompelling evidence elicited by the prosecution. Arguably, it was thelinchpin of the prosecution's case. The Miranda aspects of this case have

been extensively litigated and will not be revisited. However, when theevidence presented at the CPL 440 hearing is evaluated against the backdropof the trial ev idence, including the defendant s confession, how theconfession was obtained, and the fact that the defendant almost immediatelyrecanted the confession, the newlydiscovered evidence is of such characteras to create a probability that had such evidence been received at the trial theverdict would have been more favorable to the defendant (CPL 440.10 [1][g]) .

Tankleff, 49 A.D.3d at 182. Applying this reasoning to the case at bar, in which

Johnnys confession was also the linchpin of the prosecutions case, this court

should come to the same conclusion. The new evidence, evaluated against the

backdrop of the scant evidence corroborating Johnnys confession and the

improper means of obtaining it, should be considered of such character as to
https://www.lexis.com/research/buttonTFLink?_m=a5479163bf53c3c32f00131815046626&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b49%20A.D.3d%20160%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=133&_butInline=1&_butinfo=N.Y.%20CRIM.%20PROC.%20LAW%20440.10&_fmtstr=FULL&docnum=8&_startdoc=1&wchp=dGLbVzV-zSkAl&_md5=966ea03426c2eda7cf9332573b085616https://www.lexis.com/research/buttonTFLink?_m=a5479163bf53c3c32f00131815046626&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b49%20A.D.3d%20160%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=134&_butInline=1&_butinfo=N.Y.%20CRIM.%20PROC.%20LAW%20440.10&_fmtstr=FULL&docnum=8&_startdoc=1&wchp=dGLbVzV-zSkAl&_md5=e35f51482e8d6ee4b9d7f3e008a10523https://www.lexis.com/research/buttonTFLink?_m=a5479163bf53c3c32f00131815046626&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b49%20A.D.3d%20160%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=134&_butInline=1&_butinfo=N.Y.%20CRIM.%20PROC.%20LAW%20440.10&_fmtstr=FULL&docnum=8&_startdoc=1&wchp=dGLbVzV-zSkAl&_md5=e35f51482e8d6ee4b9d7f3e008a10523https://www.lexis.com/research/buttonTFLink?_m=a5479163bf53c3c32f00131815046626&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b49%20A.D.3d%20160%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=134&_butInline=1&_butinfo=N.Y.%20CRIM.%20PROC.%20LAW%20440.10&_fmtstr=FULL&docnum=8&_startdoc=1&wchp=dGLbVzV-zSkAl&_md5=e35f51482e8d6ee4b9d7f3e008a10523https://www.lexis.com/research/buttonTFLink?_m=a5479163bf53c3c32f00131815046626&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b49%20A.D.3d%20160%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=134&_butInline=1&_butinfo=N.Y.%20CRIM.%20PROC.%20LAW%20440.10&_fmtstr=FULL&docnum=8&_startdoc=1&wchp=dGLbVzV-zSkAl&_md5=e35f51482e8d6ee4b9d7f3e008a10523https://www.lexis.com/research/buttonTFLink?_m=a5479163bf53c3c32f00131815046626&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b49%20A.D.3d%20160%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=133&_butInline=1&_butinfo=N.Y.%20CRIM.%20PROC.%20LAW%20440.10&_fmtstr=FULL&docnum=8&_startdoc=1&wchp=dGLbVzV-zSkAl&_md5=966ea03426c2eda7cf9332573b085616


52/175

41

create a probability that had such evidence been received at the trial the verdict

would have been more favorable to the defendant.

The remaining prerequisites for granting a motion to vacate based on newly

discovered evidence are likewise present. The new evidence was discovered since

the trial: Johnny learned of Andersons knowledge of his innocence in 2009 and

William Hughes and Robert Dennison tracked down Montero just last year.

The due diligence requirement is measured against a defendants available

resources and the practicalities of the particular situation. Lemus, 2005 N.Y.

Misc. LEXIS 3611, at *57. The focus of Johnnys lawyers in the years following

his conviction was to argue that Johnnys conviction was unjust for legal reasons,

such as the exclusion of Ricardo Lopezs confession. When he lost his appeals and

his habeas petition, Johnny wanted to hire a private investigator, but could not

afford one. (Hincapie Aff. at 10). In attempting to investigate his case on his own,

Johnny remembered talking to many people that night he did not know where to

start in terms of locating people who could exonerate him. (Id.) Johnny never knew

that Anthony Anderson remembered, and was willing to say, that he knew Johnny

was not there until he bumped into him in prison. (Id.) And, it was not until

William Hughes and Robert Dennison came on board that Johnny was able to

locate and question Luis Montero. (Id. at 11).


53/175

42

The new evidence is ob viously material to Johnnys innocence: both

Montero and Anderson now say that Johnny was not there and could not have been

there. The new evidence is not cumulative or impeaching. At trial, Johnny did not

possess, and therefore did not present, evidence of witnesses who knew he was not

present for the mugging. The new evidence is just that new and does not

impeach witness testimony related to Johnny. There is no witness testimony for

Johnny to impeach.

Based on the foregoing, the conviction of Johnny Hincapie must be vacated,

or in the alternative, a hearing must be held with respect to the newly discovered

evidence.

II. JOHNNYS CONVICTION SHOULD BE VACATED UNDERCRIMINAL PROCEDURE LAW 440.10(1)(h) ON THE GROUNDSTHAT JOHNNY IS FACTUALLY INNOCENT AND HISCONTINUED INCARCERATION VIOLATES HIS RIGHTS TO DUEPROCESS UNDER ARTICLE 1, SECTIONS 5 AND 6 OF THE NEWYORK STATE CONSTITUTION AND THE EIGHTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATESCONSTITUTION.

New York trial courts are generally in agreement that the conviction of an

innocent person violates the Due Process Clause of the New York State

Constitution. People v. Bermudez, 25 Misc.3d 1226A (Sup. Ct., N.Y. County

2009); People v. Wheeler, 25 Misc.3d 690 (Sup. Ct., Kings County 2009). To

establish actual innocence, courts require a defendant to demonstrate by clear and


54/175

43

convincing evidence that the defendant is actually innocent of the crime for which

he was convicted. Bermudez, 25 Misc.3d 1226A, at *61.

In claims for actual innocence, unlike claims based on newly discovered

evidence, new evidence may be considered, whether or not it satisfies the Salemi

factors. Id. The hearing court may examine all of the currently available,

credible evidence in order to determine whether the defendant has met his burden

of proof. Id. at *62. The Bermudez court explained:

For example, if new evidence overwhel mingly demonstrates a defendant sactual innocence, but could have been discovered by the time of trial by theexercise of due diligence, it would not meet the requirements of CPL440.10(1)(g). Further, the right to raise a claim of actual innocence wouldobviate other legal barriers, such as prior adverse court determinations,which might otherwise bar further recourse to the courts.

Id. at *61-62.

In this case, the overwhelming evidence supporting Johnny Hincapies

innocence establishes by clear and convincing evidence that he is actually

innocent. The reliable, credible affidavits of Luis Montero and Anthony Anderson

corroborate each other and show that Johnny was not involved in, and was not

present for, the mugging of the Watkins family. The Recommendation for

Dismissal of Luis Monteros indictment demonstrates that Monteros statements

are trustworthy and consistent. The other important exculpatory evidence is in the

confession of Ricardo Lopez.


55/175

44

Should the court choose to ignore the content of Lopezs confession for the

purpose of deciding this motion based on Crim. Proc. L. 440.10(1)(g), there is

certainly no bar to considering the Lopez confession on the grounds of actual

innocence. One of the purposes of courts permitting motions to vacate on the

grounds of actual innocence is to consider evidence that might be barred in other

contexts. See, Bermudez, 25 Misc.3d 1226A, at *61-62. In the confession of

Ricardo Lopez, he states in no uncertain terms that Johnny was not at the scene of

the mugging. (Exhibit F). When pressed about Johnnys presence, Lopez

reiterated that Johnny had already left the subway platform when the mugging took

place. (Id.)

Ricardo Lopezs statements corroborate the affidavits of Anderson and

Montero. Moreover, there was never and is not currently a relationship in time or

space between the statements of these three men. Even if the original case against

Johnny Hincapie was strong, these three pieces of evidence would be sufficient to

establish his innocence. But the original case was not strong it was

extraordinarily weak, and the court should also consider that fact in making its

determinat ion as to Johnnys actual innocence.

In evaluating whether a defendant is actually innocent, courts consider the

lack of evidence connecting the defendant to the crime. Bermudez, 25 Misc.3d

1226A, at *101. In Bermudez , the court noted: there has never b een any forensic


56/175


57/175

46

wisdom. People v. Bedessie, 19 N.Y.3d 147 (Ct. App. 2012). Johnny Hincapie s

confession was the central piece of evidence presented against him at trial. With

that in mind, and considering the new evidence of Johnnys innocence, this Court

should carefully consider the circumstances surrounding Johnnys decision to

confess, and re -open his suppression hearing.

During Johnnys Huntley hearing, which was consolidated with the Huntley

hearings for his co-defendants, Johnny did not testify. Johnny was advised not to

testify by his attorney. The hearing was devoid of any evidence of coercion by

detectives. The testimony given by detectives at the hearing suggested that

Detective Christie was the central detective involved in questioning Johnny, and

that Detective Casey played a minor role. (H. 1262). This inaccurate portrayal of

Johnnys interrogation allowed Detective Casey to avoid a rigorous cross-

examination that could have elicited evidence of coercion.

We now know that the interrogation of Johnny, and of his co-defendants,

was coercive . This Court need not rely on Johnnys word alone in coming to this

conclusion: the sworn statements of Luis Montero establish that the detectives in

this case used incredibly coercive techniques, including both physical and

emotional abuse, in order to elicit confessions.

When Luis Montero was first questioned about the mugging, he told the

detectives the truth, that he did not know anything about it. (Montero Aff. at 6). As


58/175


59/175

48

family again, he would confess. (Id. at 6-7). When Johnny continued to tell Det.

Casey that he knew nothing about the robbery, Det. Casey became increasingly

violent. (Id. ) He blew smoke in Johnnys face, screamed at him, pulled his hair,

slapped him, and pushed Johnny to the floor with his foot. (Id.) Finally, Det.

Casey told him that in order to go home, he needed to memorize the story given to

him. (Id.) He then told Johnny the details of the robbery and the role Johnny was

to have played in it. (Id. at 7).

When Johnny asked what a lawyer would say about Det. Casey telling him

to memorize a story that Johnny knew to be untrue, Det. Casey said that the lawyer

would advise him to memorize the story. (Id.) Det. Casey recited the story Johnny

was to memorize several more times, and when Johnny had it memorized to Det.

Caseys liking, he called in Det. Christie to write the story down. ( Id. at 7-8).

Johnny was told to sign off on the story and was then moved into another room

where he was videotaped reciting the same story to ADA Henken. (Id. at 8-9).

Johnny was not given the opportunity to write his own statement. (Tr. 2203).

The same detectives that had interrogated him and took down the statement

sat in the room watching. (Hincapie Aff. at 9). In the video of his confession,

Johnny can be seen responding to ADA Henkens questions with one -word

affirmative responses, and watching the detectives as he speaks. See, Exhibits I


60/175

49

and J. When Johnny explains his involvement in the robbery, he tends to use

words like they and them instead of I or we. ( Id.)

At trial, Johnny attempted to show that his confession was involuntary and

unreliable. Aside from cross-examinations of the relevant detectives, Johnny also

presented evidence, based on tests administered before and after the robbery, that

he had an impaired ability to comprehend verbal and written words, and that this

condition is exacerbated by anxiety. (Tr. 2576, 2584, 2777, 2867, 2890).

Unfortunately for Johnny, at the time of his trial, the science and law related to

false confessions was not nearly as advanced as it is today. See, Bedessie, 19

N.Y.3d at 147.

Criminal Procedure Law 440.10 provides that a court may vacate a

judgment on the grounds that [t]he judgment was procured by duress,

misrepresentation or fraud on the part of the court or a prosecutor or a person

acting on behalf of a court or a prosecutor , CPL 440.10(1)(b), [m ]aterial

evidence adduced by the people at a trial resulting in the judgment was procured in

violation of the defendants rights under the constitution of this state or of the

United States, CPL 440.10(1)(d), [i]mproper and prejudicial conduct not

appearing in the record occurred during a trial resulting in the judgment which

conduct, if it had appeared in the record, would have required a reversal of the

judgment upon an appeal therefrom, CPL 440.10( 1)(f), or [t]he judgment was


61/175


62/175

51

based on Criminal Procedure Law 440.10(1)(b), (d), (f), and (h), on the grounds

that Johnnys confession was obtained in violation of his due process rights.

CONCLUSION

For the foregoing reasons, the conviction of Johnny Hincapie must be

vacated. In the alternative, a hearing must be held to examine the newly discovered

evidence.


________/S/________________LEAH M. BUSBYRONALD L. KUBYLaw Office of Ronald L. Kuby119 W. 23 rd Street, Suite 900

New York, New York 10011(212) 529-0223

Attorneys for Johnny Hincapie


63/175

EXHIBITS A1-A4


64/175


65/175


66/175


67/175


68/175

EXHIBIT B


69/175


70/175


71/175


72/175


73/175


74/175


75/175


76/175


77/175


78/175


79/175


80/175

EXHIBIT C


81/175


82/175


83/175


84/175


85/175


86/175


87/175


88/175


89/175


90/175


91/175

EXHIBIT D


92/175


93/175


94/175


95/175


96/175


97/175


98/175


99/175

EXHIBIT E


100/175


101/175

memorandum of law supporting motion to vacate

Documents