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8/12/2019 Memorandum of law supporting motion to vacate
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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
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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
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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-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.
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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
Dated: New York, New York November 25, 2013
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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,
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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
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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
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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%25201207A8/12/2019 Memorandum of law supporting motion to vacate
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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
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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
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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-
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
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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
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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.
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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
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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
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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
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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.
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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
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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.
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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
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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:
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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.
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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.
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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,
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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
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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
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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.
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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.
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(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
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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,
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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.
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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:
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[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.
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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
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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.)
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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).
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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.)
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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
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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
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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).
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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
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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).
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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).
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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
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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 newly- discovered 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
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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).
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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
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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.
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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
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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
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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
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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
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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.
Dated: New York, New York November 25, 2013
________/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
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EXHIBITS A1-A4
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
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EXHIBIT E
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