Memorandum of Law Supporting Motion To Vacate

1
SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY: CRIMINAL TERM PART X
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THE PEOPLE OF THE STATE OF NEW YORK,

Respondent, Indictment No. 10641/90

-against-
NOTICE OF MOTION
JOHNNY HINCAPIE,

Defendant.
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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

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

Dated: New York, New York
November 25, 2013

_________/S/______________
LEAH M. BUSBY
RONALD L. KUBY
Law 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

1

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-against-
AFFIRMATION
JOHNNY HINCAPIE,

Defendant.
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STATE OF NEW YORK
ss:
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.
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

November 25, 2013

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-against-

JOHNNY HINCAPIE,

Defendant.
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MEMORANDUM OF LAW IN SUPPORT OF MOTION TO VACATE
CONVICTION OF JOHNNY HINCAPIE

LEAH M. BUSBY
RONALD L. KUBY
119 W. 23
rd
Street, Suite 900
(212) 529-0223


November 25, 2013
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 and
Evidence 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 NEWLY
DISCOVERED EXCULPATORY EVIDENCE, WHICH
COULD NOT HAVE BEEN PRODUCED AT TRIAL,
ii

CREATES NOT ONLY A PROBABILITY, BUT A NEAR
CERTAINTY OF A MORE FAVORABLE RESULT
IF IT HAD BEEN INTRODUCED AT HIS TRIAL. ......................... 27

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

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

i. Luis Montero Has Nothing To Gain By Coming
Forward ........................................................................... 30

ii. Monteros Consistent Statements and Clear
Memory ........................................................................... 32

iii. The Recommendation for Dismissals Corroboration
of Monteros Account ..................................................... 33

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

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

ii. Johnnys Serendipitous Meeting with Anderson
and Andersons Basis for Not Coming Forward
Earlier.............................................................................. 36

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

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

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

II. JOHNNYS CONVICTION SHOULD BE VACATED
UNDER CRIMINAL PROCEDURE LAW 440.10(1)(h)
ON THE GROUNDS THAT JOHNNY IS FACTUALLY
INNOCENT AND HIS CONTINUED INCARCERATION
VIOLATES HIS RIGHTS TO DUE PROCESS UNDER
ARTICLE 1, SECTIONS 5 AND 6 OF THE NEW YORK
iii

STATE CONSTITUTION AND THE EIGHTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION. ............................................................................... 42

III. THIS COURT SHOULD RE-OPEN JOHNNY HINCAPIES
SUPPRESSION HEARING BASED ON THE NEW
EVIDENCE THAT HIS CONFESSION WAS OBTAINED
IN VIOLATION OF HIS DUE PROCESS RIGHTS
UNDER THE NEW YORK STATE AND FEDERAL
CONSTITUTIONS. THE NEW EVIDENCE ESTABLISHES
THAT JOHNNY HINCAPIES CONVICTION MUST BE
VACATED PURSUANT TO SECTIONS (1)(b), (1)(d), (1)(f),
AND (1)(h) OF CRIMINAL PROCEDURE LAW 440.10. ............ 45

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

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

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 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. ............................................................................................... 15

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

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-against-

JOHNNY HINCAPIE,

Defendant.
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MEMORANDUM OF LAW IN SUPPORT OF MOTION TO VACATE
CONVICTION 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
2

to go dancing. The murder garnered tremendous publicity, with the public
demanding swift police work.
Under immense pressure to solve this high-profile crime, police rounded up
and interrogated several suspects within hours of the murder. Eight men were
ultimately charged with crimes for their roles in the mugging. However, in its haste
to please the public, the New York County District Attorneys Office wrongfully
charged two men with this crime. Before trial, the District Attorney recommended
dismissal of the indictment against one of these men, Luis Montero. The other
man, Johnny Hincapie, was wrongfully convicted of second-degree murder and
robbery, sentenced to 25 years to life, and remains in prison to this day.
Johnny Hincapie played no part in the attack on the Watkins family. No
physical evidence linked Johnny to the crime no blood, no weapon, no
fingerprints. He was not positively identified by anyone as a participant in the
robbery. The only evidence supporting Johnnys conviction was a confession,
obtained through coercion, and a line-up identification in which an eyewitness
stated Johnny looked vaguely familiar.
Luis Montero, himself falsely accused and held in jail for over a year before
the charges were dismissed, has provided an affidavit attesting to Johnnys
presence with him or within his sight at the time the Watkins attack took place
Johnny could not have been a participant. Monteros account is supported by the
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 longstanding 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
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.
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
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 New
Evidence

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
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 Evidence
Obtained 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
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 stairways
on either end of the platform or one escalator in the middle. See, Exhibits A1-A2.
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
10

FOIL request made on November 29, 2012, the District Attorneys Office released
to Johnny the Recommendation 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 what 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.
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, as 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, Monteros 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
12

with immigration issues and understands that sharing his knowledge could help set
free a wrongfully imprisoned man.
ii. New Evidence: Anthony Andersons Affidavit
Anthony Anderson, who continues to admit his involvement in the mugging,
has also come forward to exonerate Johnny Hincapie. Andersons recently
submitted affidavit, attached as Exhibit E, corroborates Johnnys account of events.
Anderson, who was convicted in a trial separate from Johnnys with two other co-
defendants, was not friends with Johnny at the time of the mugging, but knew of
Johnny because he had heard rumors about Johnny being a good dancer. (Anderson
Aff. at 1). At the time of the investigation of the mugging, Anderson told
detectives about the other individuals involved in the attack, but did not mention
Johnny.
In Andersons attached affidavit, dated December 7, 2009, Anderson states:
never did I see, nor was Johnny, at the crime scene during or after it took place.
Johnny never knew about the crime, nor did he engage in any of the planning. This
I am sure. (Anderson Aff. at 1). Anderson goes on to state:
To specify, on Sunday, September 2, 1990, at approximately 10:00 PM, I
and about a group of 40 teenage boys and girls got off from the E train on 7
th

Avenue subway station in Manhattan. As everybody exited the subway
station, five others and I stood back in the platform level to plan a robbery;
Johnny was not a part of the group that stood back. As the robbery
commenced, several other people were running around the subway station
that was not a part of the victims family. Who were they? I do not know. I,
at one point, ran between one staircase to another and had the opportunity to
13

observe who was at the platform, I did not see Johnny at all in the platform
during the robbery. Then as someone yelled, lets go, me and the other
five 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 was
he with us when we ran to Roseland. Only upon arriving to Roseland is
when 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:
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 of
them 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 whats 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.

15

D. Rounding Up The Wolfpack
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
7
th
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.
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,
17

Detective Carlos Gonzalez. (Tr. 1153). Det. Gonzalez, who had played a major
role in the investigation of the Central Park Jogger case just a little over a year
before, would go on to become a key player in the investigation of this case as
well. Based on the interrogation and confession of Anthony Anderson, and the
descriptions provided by the Watkins family, detectives identified several other
suspects outside Roseland when it closed the next morning. (Tr. 621-26). Montero
did not confess, and did not provide detectives with any helpful information. (Tr.
1174).
Two of the individuals who were subsequently brought in for questioning
early in the morning of September 3
rd
, Pascual Carpenter and Ricardo Nova,
ultimately confessed to participating in the mugging. (Tr. 1176-94, 1469-79).
Based on the information obtained from Carpenter and Nova, detectives left the
precinct to look for additional suspects. (Tr. 1479-80). A few hours later, at
around 2:00 p.m., detectives returned to the precinct with Emiliano Fernandez,
Yull Morales, and Ricardo Lopez. (Tr. 1496-1511, 1569-93). Eventually,
Fernandez, Lopez and Morales also confessed their involvement in the mugging.
Each of these six men told essentially the same story: they got off the
subway near Roseland with a group of about 30 to 60 other teenagers, and a small
group stayed behind to commit a robbery so they could pay Roselands entrance
fee. With one member of the group armed with a knife and another member armed
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
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
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.
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.
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
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,
24

1991. They were all sentenced to a term of imprisonment of 25 years to life on
January 3, 1992.
5

Johnny lost all of his appeals. His petition for a writ of habeas corpus was
likewise rejected by the Southern District of New York. Attorney Vivian Shevitz
was appointed to represent Johnny in his appeal of the Southern Districts decision.
See, Shevitz Letter, dated May 22, 2007, attached as Exhibit K. The Second
Circuit affirmed the decision. Ms. Shevitz petitioned the U.S. Supreme Court for a
writ of certiorari, which was also denied. A firm believer in Johnnys case, Ms.
Shevitz continued to work on Johnnys case pro bono and wrote to the New York
County District Attorneys Office in May 2007, asking that the office reconsider
his conviction. Id. The D.A.s Office re-opened Johnnys case, and even went so
far as to interview him. However, the Office was not satisfied that Johnnys
conviction was wrongful, and closed Johnnys case once again. In violation of all
principles of best practices for conviction integrity review, former Assistant
District Attorney Thomas Schiels, the same prosecutor who tried Johnnys case,
was responsible for reviewing his conviction.

5
The remaining three defendants were convicted on April 23, 1992. The number of defendants
in the second trial was reduced from four to three when Luis Monteros charges were dropped.
25

G. A Trail of Believers
Vivian Shevitz was not the only person who has been taken with Johnnys
story. Johnnys sincerity, perseverance, and consistent recounting of what
happened to him have attracted a group of individuals who have been fighting to
prove his innocence for years. The two central figures working on Johnnys case
over the past decade are William Hughes, a journalist and journalism professor at
City University of New York, and Robert Dennison, former chairman of the New
York State Board of Parole.
William Hughes met Johnny in 2006 while he was working as a reporter for
The Journal News in Westchester County. (Hughes Aff. at 1, attached as Exhibit
L). At the time, Johnnys case was under review by the New York County District
Attorneys Office, and Hughes was working on a story about Johnny. (Id. at 2).
Vivian Shevitz was Johnnys attorney at the time, and she asked that Hughes not
publish an article until the District Attorneys Office finished its review. (Id.) In
2010, shortly after the District Attorneys Office chose not to reconsider Johnnys
conviction, Hughes extensive article was published in City Limits magazine. This
article is attached as Exhibit M. Convinced of Johnnys innocence, Hughes also set
out to write a book to tell Johnnys story. (Id. at 3).
Hughes investigative efforts led to the discovery that Luis Montero was
never questioned regarding Johnnys participation in the crime. (Id.) Hughes wrote
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.
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 VACATED
UNDER CRIMINAL PROCEDURE LAW 440.10(1)(g) ON THE
GROUNDS THAT NEWLY DISCOVERED EXCULPATORY
EVIDENCE, WHICH COULD NOT HAVE BEEN PRODUCED AT
TRIAL, CREATES NOT ONLY A PROBABILITY, BUT A NEAR
CERTAINTY OF A MORE FAVORABLE RESULT IF IT HAD BEEN
INTRODUCED 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:
28

[n]ew evidence has been discovered since the entry of a judgment based
upon a verdict of guilty after trial, which could not have been produced by
the defendant at the trial even with due diligence on his part and which is of
such character as to create a probability that had such evidence been
received at the trial the verdict would have been more favorable to the
defendant; provided that a motion based upon such ground must be made
with 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 by
unquestionable documentary proof.

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 preponderance 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, the 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 conviction. Considering the cumulative effect
of the new evidence, in combination with the weak basis on which Johnny was
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.)
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).

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
minutes 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.)

33

iii. The Recommendation for Dismissals Corroboration of
Monteros 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 heavily 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 Monteros account of what he saw and did on the night of the
mugging reliable at the time of the original investigation. Because Monteros
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 willingness 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. Andersons 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 some
names of persons that he was with. Do you recall what
names he gave?

Det. Casey: He gave street names. He gave Score, Trauma, Rock
Star, 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
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 the
commission of the robbery, but rather, he just stood there. However,
Crawford's proffered testimony is a virtual repetition of what Crawford said
during his plea allocution. Defendant makes no claim that Crawford had any
potential testimony not known to him at the time of the trial. Therefore, it
does not satisfy CPL 440.10 (1) (g)s requirement that it be new evidence
that was discovered since the entry of a judgment based upon a verdict of
guilty after trial.

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

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 Andersons
Basis 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
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).
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 knowledge 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 corroborated 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 other 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 hearsay. See,
Hincapie v. Greiner, 56 Fed. Appx. 61, 62 (2d Cir. 2003).
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 of
them 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, 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.

* * * * *

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
40

already weak case against Johnny Hincapie. The only real evidence against Johnny
was his confession. The 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 the original trial, the defendants repudiated confession was the most
compelling evidence elicited by the prosecution. Arguably, it was the
linchpin of the prosecution's case. The Miranda aspects of this case have
been extensively litigated and will not be revisited. However, when the
evidence presented at the CPL 440 hearing is evaluated against the backdrop
of the trial evidence, including the defendants confession, how the
confession was obtained, and the fact that the defendant almost immediately
recanted the confession, the newly-discovered evidence is of such character
as to create a probability that had such evidence been received at the trial the
verdict 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
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).
42

The new evidence is obviously 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 UNDER
CRIMINAL PROCEDURE LAW 440.10(1)(h) ON THE GROUNDS
THAT JOHNNY IS FACTUALLY INNOCENT AND HIS
CONTINUED INCARCERATION VIOLATES HIS RIGHTS TO DUE
PROCESS UNDER ARTICLE 1, SECTIONS 5 AND 6 OF THE NEW
YORK STATE CONSTITUTION AND THE EIGHTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.

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
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 overwhelmingly demonstrates a defendants
actual innocence, but could have been discovered by the time of trial by the
exercise of due diligence, it would not meet the requirements of CPL
440.10(1)(g). Further, the right to raise a claim of actual innocence would
obviate 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.
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
determination 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 been any forensic
45

evidence to link the defendant to this crime, no blood, no fingerprints, not even a
sighting of his car. Id. The same is true in Johnnys case.
There was no physical evidence linking Johnny to this crime no blood, no
fingerprints. Johnny was the last of the defendants brought in for questioning, and
was not brought in until Emiliano Fernandez gave Johnnys name, along with the
names of two other individuals who were not involved, to detectives. (Exhibit G).
Aside from the testimony from Karen Watkins that Johnny looked familiar (just
as a couple dozen other lineup fillers looked familiar), the only other evidence
presented at trial against Johnny was his own false confession.
In sum, the weaknesses of the prosecutions original case against Johnny,
together with the strong and credible new evidence and the confession of Ricardo
Lopez, establish by clear and convincing evidence that Johnny is actually innocent
of the crime for which he was convicted.

III. THIS COURT SHOULD RE-OPEN JOHNNY HINCAPIES
SUPPRESSION HEARING BASED ON THE NEW EVIDENCE
THAT HIS CONFESSION WAS OBTAINED IN VIOLATION OF HIS
DUE PROCESS RIGHTS UNDER THE NEW YORK STATE AND
FEDERAL CONSTITUTIONS. THE NEW EVIDENCE
ESTABLISHES THAT JOHNNY HINCAPIES CONVICTION MUST
BE VACATED PURSUANT TO SECTIONS (1)(b), (1)(d), (1)(f), AND
(1)(h) OF CRIMINAL PROCEDURE LAW 440.10.

That the phenomenon of false confessions is genuine has moved from the
realm of startling hypothesis into that of common knowledge, if not conventional
46

wisdom. People v. Bedessie, 19 N.Y.3d 147 (Ct. App. 2012). Johnny Hincapies
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
47

time wore on, and Montero continued to assert his ignorance of the mugging, the
detectives became increasingly intimidating. (Id. at 6-7). After hours of
questioning led nowhere, the detectives screamed at Montero, told him that he was
lying and that he could go home only if he told them what happened. (Id.) The
detectives also asked Montero to sign a pre-written statement. (Id. at 7).
When the verbal abuse was not enough to elicit a confession, the detectives
brought him into a large empty room with no one else in sight, choked him, and hit
him on the sides of his body with some sort of weapon. (Id.) Montero was so
scared and confused after the hours of questioning, accusations, and physical and
emotional abuse that by a certain point he was ready to confess to playing a part in
the mugging. (Id. at 8).
Johnnys account of the abuse he endured that led him to give a false
confession is consistent with Monteros account. As Johnny states in his affidavit,
when he arrived at the police precinct, the first thing that he was told was that one
of his best friends gave up his name as a participant in the robbery. (H. 1261). Two
detectives asked him if he needed anything to eat or drink, then left the 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 ever wanted to see his
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
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
50

obtained in violation of a right of the defendant under the constitution of this state
or of the United States. CPL 440.10(1)(h). See, People v. Fuller, 29 Misc.3d
1207(A), *3-4 (Sup. Ct., N.Y. County 2010).
It is well settled that a confession obtained by coercive means constitutes a
constitutional violation. People v. Tarsia, 50 N.Y.2d 1, 10 (Ct. App. 1980). The
Court of Appeals explained the dangers of using improper means to elicit a
confession as follows:
much of what is cherished in our society may be traced to the Federal and
State Constitutions steadfast refusal to countenance confessions obtained by
coercive means. To declare otherwise, in effect that the end of securing the
conviction of a criminal justifies whatever means, however inhumane, the
State chooses to employ, would signal the demise of public trust in the
institutions of GovernmentEveryone therefore agrees that third degree
methods are intolerable; their potential for generating unreliable, if not
patently false, confessions is readily recognizable even by the most
unsophisticatedWhat emerges from the cases is a reliance on the spirit of
the constitutional protections, tempered always by the particular
circumstances of each case.

Id. at 10.

In light of the new evidence provided by Luis Montero, and its corroboration
of Johnnys account of how he came to give a false confession, this Court should
re-open Johnnys suppression hearing. The conduct of the detectives in this case,
particularly the conduct of Det. Casey, is precisely the type of treatment prohibited
by our State and Federal Constitutions. Upon examination of the relevant
evidence, this Court will likely find that Johnnys conviction must be vacated
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.

November 25, 2013

________/S/________________
LEAH M. BUSBY
RONALD L. KUBY
119 W. 23
rd
Street, Suite 900
(212) 529-0223


EXHIBITS A1-A4

EXHIBIT B

EXHIBIT C

EXHIBIT D

EXHIBIT E

EXHIBIT F
This exhibit is a disc.

EXHIBIT G

EXHIBIT H

EXHIBIT I
This exhibit is a disc.

EXHIBIT J

EXHIBIT K

Vivian Shevitz
Attorney at Law
46 Truesdale Lake Drive
South Salem, New York 10590
Office and voicemail: 914 763 2122
Telefax: 914 763 2322
e-mail: vivian@shevitzlaw.com

May 22, 2007
Hon. Robert M. Morgenthau
District Attorney, New York County
One Hogan Place

Donald J. Siewert
Assistant District Attorney
One Hogan Place

Re: Johnny Hincapie- Request to Review Conviction

Dear Mr. Morgenthau and Mr. Siewert:

In 2002, I wrote and asked you to review the conviction of Johnny
Hincapie, whom I represented at the time by appointment of the Second
Circuit Court of Appeals in connection with the denial of his petition for
habeas corpus relief. With the passage of time and the courts and
publics recognition through DNA testing that there have been many
erroneous convictions, including in cases where the defendant confessed, I
am asking you to review the case anew.

This Extremely High-Profile Case:

In September, 1990, New York City was stunned by an attack on a
family of tourists from Utah. The family of five, on their way to dinner
after attending the U.S. Open Tennis Tournament, was attacked by a gang of
youths while waiting on a subway platform. The attack was shocking not
only because it left twenty-two year old Brian Watkins dead from stab
wounds, but because the motive of the attack was to get money to go
2
dancing, and the attackers went right from the scene of the crime to the
dance hall.
The murder engendered tremendous publicity and swift (and hasty)
police work. Within hours, perpetrators were identified and arrested. The
last of those arrested was Johnny Hincapie. Mr. Hincapie was not positively
identified by anyone (he was not even tentatively identified by five of the six
eyewitnesses who testified for the State at trial); no physical evidence linked
him to the crime; and, unlike others who were prosecuted, he was not
described by any of the eyewitnesses to the crime, he had no prior arrest
record, he did not possess a weapon when arrested, and unfortunately for
Mr. Hincapie in the post-DNA world no blood was found on his clothing.

However, Mr. Hincapie, confessed. On the videotape of the
confession, Mr. Hincapie grudgingly repeats, in answer to questions, what
the detectives had told the prosecutor he had stated, which, Mr. Hincapie
respectfully states, was what the detectives had in essence coerced him to
say.

The quick succession of arrests after the attack was triggered by two
eyewitnesses who reported having heard a reference to Roseland when a
group of youths fled the subway. (Trial Tr. 391)
1
The eyewitnesses were
taken to Roseland by police and inside found and identified Anthony
Anderson and Louis Montero. (Hearing 145, 913) Based on the interrogation
and confession of Anderson and descriptions provided by the Watkins
family, the police next found several other suspects outside Roseland when
it closed the next morning. (Hearing. 267, 637, 1389-9; Trial 616,
1165-1185, 1433, 1780) Two of these (Joe Santana and Keith Aldridge)
were eventually released (Tr. 785), but two others were brought in for
questioning (Ricardo Nova and Pascal Carpentier), and both confessed to
participating in the subway robbery; each also confirmed Andersons earlier
identification of three other participants (which did not include Mr.
Hincapie): Emilio Fernandez, Ricardo Lopez and Gary Morales. (Hearing
668, 1421; T. 633, 1472)

1

3
These three were tracked down the next day in Queens, brought in for
questioning, and eventually each of them also confessed to participating in
the robbery. (H. 710, 1608, 1625, 1780; T. 955, 1565, 1689, 1697, 1839)
All told essentially the same story: They, among a huge group of young
men and women (variously, 30 to 60), arrived at the subway stop near
Roseland. Most headed directly for the dance hall, but a small group,
realizing that they did not have enough money to pay the entrance fee, went
back down into the subway to commit a robbery. One of them was armed
with a knife and another a box cutter; they swarmed around the Watkins
family and slashed Mr. Watkins pants pocket in order to take his wallet.
Brian Watkins was stabbed in the ensuing melee.

Eventually Mr. Hincapie was arrested, interrogated, and charged.

Your office essentially relied on two pieces of evidence to convict Mr.
Hincapie -- his confession that he was present and restrained one of the
women in the group, and the assertion by the victims mother (Karen
Watkins) when she viewed Hincapie in a line-up that he looked vaguely
familiar.

Mrs. Watkins trial testimony demonstrated confusion, to say the
least. She, like every other family member, had also mistakenly identified
several of the line-up fillers as familiar and similar. Indeed, not only
did the Watkins family (understandably numb and distraught after the
chaotic events in the subway (T. 726, H. 270, 1235-6, 1759)) misidentify a
total of 27 fillers in the course of various line-ups (T. 757-768, 3236), but
significantly --one of the investigating officers who was asked to identify
Emilio Fernandez in the court-room, mistakenly pointed to Johnny Hincapie.
(Tr. 1203)

The officers explanation: gee they look alike.

Alas, that explanation was used by the prosecutor in summation to
explain why Karen Watkins trial testimony, in which she also confused
Hincapie and Fernandez, was understandable. (T. 3289))

The reason why this conviction should be re-thought, in the interest of
justice and fairness, is that, while accepting the confession of participant
4
Ricardo Lopez for the truth in the trial following Mr. Hincapies trial, the
prosecution successfully excluded the Lopez statement at Mr. Hincapies
trial.
Lopez statement was self-inculpatory. But Lopez also asserted that
Johnny Hincapie had left the platform before the attack on the Watkins
family. (Tr. 850-852)

Mr. Hincapie had not been identified as a participant by the first five
youths who confessed. When questioned, each of the five had given a
detailed statement in which he identified the other participants in the attack;
and, with respect to the identity of the participants, the various statements
largely corroborated one another. (H. 267-8, 954, 668, 685, 1421, 1548; T.
924).

Mr. Hincapie was arrested on the basis of the statement of one
perpetrator, co-defendant Emilio Fernandez, who, only as an afterthought,
said that Johnny Hincapie had been present. Fernandez had given an oral
statement and signed a detailed written statement (which he had
meticulously reviewed and corrected before signing) that had not included
Mr. Hincapie. He named Hincapie only later, in response to police
questioning, after he had time to digest the implications of his predicament,
having been shown pictures of those already arrested, and thus figuring out
who was not available to give up in order to curry favor. (H. 1625-1664;
T. 1697-1716, 1826-36, 1976).

At trial, though Mr. Hincapie was precluded from introducing Lopezs
video-taped statement that he (Mr. Hincapie) had left the scene before the
attack, the fact that the other perpetrator, Fernandez, had implicated
Hincapie in the crime was presented to the jury by the State. Even after
that, Mr. Hincapie was expressly prohibited from discrediting Fernandez, his
hearsay accuser.

Certainly, the prosecuting attorney, caught up with the urgency of the
case, tried to avoid the obvious Bruton issues present in that one defendant
implicated another. Throughout the trial the prosecutor offered redacted
versions of the various statements by the defendants on trial, in which the
names of any co-defendants were omitted. (T. 650, 924, 1705) (Some
defendants were severed and tried after Mr. Hincapies trial to avoid Bruton
5
issues). In the same vein, the jury was repeatedly instructed by the court
not to use these prior statements against any defendant other than the
particular defendant who gave it. (T. 649, 941, 1705, 3476) The defendants
objected to this procedure and, time after time, moved for a mistrial, arguing
that, notwithstanding the instruction, the jury could not help but deduce that
the blanks in the confessions referred to the other defendants on trial, and,
accordingly, that the defendants had been directly implicated by their
co-defendants. (T. 650, 1428-9, 1437)

Mr. Hincapie also objected to this procedure for another reason: his
interests were different from the other defendants on trial with respect to the
statements of participants other than Fernandez. In the case of Anthony
Andersons confession, for example, Mr. Hincapie wanted to make use of
the fact that he was not named. (T. 1442)) Once again, he was not named by
anyone, until the last man, Lopez, who had noone to give up, was arrested
and interrogated.

Notwithstanding the redactions and limiting instructions, the jury
inevitably learned that Emilio Fernandez had implicated Mr. Hincapie..
First, Police Officer Matthew Santoro testified that, after he had given his
written and oral statement, Fernandez gave the name of another person
involved in the incident and either his phone number or address. ( T. 1716)
Fernandez was the second to last person arrested; the jury easily understood
the identity of the person supposedly involved in the incident as named by
Fernandez.

Likewise, Transit Police Detective James Christie testified that, after
Fernandez signed his statement, Fernandez gave further information and
more names; Christie did further investigation and came up with further
information regarding one of the other parties involved in this incident.
According to Christie, he then proceeded directly to Mr. Hincapies home.
(T. 1976-7)

If it wasnt obvious from this history of the investigation that
Fernandez had fingered Hincapie, Christie made it explicit when he
described how he began his interview of Hincapie:

6
I told him he was there [for a homicide] investigation and that we had
received information from interviewing several of his friends during
the day that he was present the day before at 53
rd
Street and Seventh
Avenue when a robbery had occurred, and he had taken part in the
robbery with this group. And that one of his best friends Emiliano ...
Fernandez had testified to this. (T. 1992-3)

Detective Christies summary of appellant Hincapies oral statement
a statement made after Christie told him that he had been involved in the
robbery - conformed in essence with the version of events provided by the
members of the Watkins family and the other defendants (T. 2019-2020):

He said that he and several of his friends were on their way to
Roseland, they didnt have enough money to get in. He and his
friends decided to rob somebody and [sic] that the 53
rd
Street and 7
th

Avenue subway station, they saw a group of people, that they decided
to rob, surrounded and rob them, and when they approached these
people, one of his friends had a box cutter. He also saw Rockstar
with a knife, and, one of his friends demanded money from the male
who refused.

The box cutter was then displayed, people started screaming, a
fight ensued, and, during the fight, one of his friends and one of the
men were knocked to the ground and one of the women in this group
they were robbing, tried to pull one of his friends off this male.

He said that he then grabbed her from behind and pulled her off
one of his friends.

Christie testified that he reduced this oral statement to writing and Mr.
Hincapie signed it. (T. 1226) (Unlike other suspects who themselves
wrote out their own statements (T. 631, 787, 804; H. 1760), Mr. Hincapie
was not given this option. (T. 2203))

Christie also testified that he showed Mr. Hincapie a photograph of
Brian Watkins mother (Karen) and sister-in-law (Michelle) and asked him
to identify the woman he restrained. (Of the two women in the Watkins
family, Karen Watkins was the only one who said she had been grabbed
7
during the robbery; Michelle Watkins said she had not been touched. (H.
377)) According to Detective Christie and NYPD Officer Carlos Gonzalez,
who was present during the interrogation, Mr. Hincapie selected the
photograph of the mother, Karen. (T. 2020, 1224) (At a pre-trial hearing,
Detective Donald Casey, who was also present during the interrogation of
Mr. Hincapie, testified that Hincapie selected the photograph of Michelle
Watkins as the woman he grabbed. (H. 314) However, at trial, Casey
changed his testimony and claimed he did not see which photograph Mr.
Hincapie selected. (T. 706))

After he was interrogated and signed the statement written by
Detective Christie, Mr. Hincapie was sent to be interviewed by Assistant
District Attorney Donna Henken. Detectives Christie and Casey were
present, and the interview was videotaped. Largely with one word
affirmative responses to leading questions, Mr. Hincapie confirmed the
information in the written statement, as the prosecutor asked him to do. His
responses (as can be seen and heard on the videotape) were often halting and
- consistent with one who had been programmed through fear to respond in a
certain way - he kept his gaze on the two Detectives. (Notably, when he
responded to questions that were not leading, he frequently used the
third-person pronoun they and not the first-person I or we. While he
at one time agreed that he had grabbed a woman and pushed her away, he
more often placed himself on the periphery: outside the circle of people who
planned the robbery and not among those who surrounded the Watkins
family, as though he had been merely present and events unfolded around
him. which is what Mr. Hincapie maintains is what happened.

Through a variety of means, including the circumstances leading to
his arrest, the interrogation techniques used, and his particular mental
handicaps, Mr. Hincapie attempted to show that this confession was
involuntary, coerced and unreliable. In essence, he tried to show that a
scared 18-year-old might falsely accuse himself of some minimal
participation if he believed that that was the only way he would get to go
home. Thus, he presented evidence (contrary to that offered by the officers
who had come to his home) that when the officers entered his home late at
night, they asked for him, and when he appeared, grabbed him by the arm
and ordered him to accompany them to the station. (T. 2688, 2692, 2696,
2913) When his mother, frantic and hysterical (T. 2091, 2223, 2686, 2916),
8
said he needed a lawyer, the officers asked how old he was (18 at the time)
and assured her he didnt need a lawyer. (T. 2261-3, 2693-4, 2696, 2739)
When questioned, Mr. Hincapie was not only told that his best friend gave
him up, but that it was in his interest to talk so that he did not get blamed
for anything he did not do, that the best thing he could do is cooperate,
that the D.A. would be told if he cooperated, that there was nothing to worry
about, that the officers just wanted to talk and when they were finished,
theyd take him home. (H. 1038, 1136, 1072, 1200, 1248, 1261, 1248; T.
1534, 1991-2, 2125-6)
.
Finally, Mr. Hincapie presented evidence from two
experts that, as reflected by tests administered both years before the robbery
and after his arrest, he had an impaired ability to comprehend verbal and
written words, and that this condition is exacerbated by anxiety. (T. 2576,
2584, 2777, 2867, 2890, 2681-2)

Since the only corroboration of Mr. Hincapies purported role in the
crime came from the victims mother, Karen Watkins, her testimony was
critical. Her testimony was riddled with problems. She first related the
events in the subway: She heard a yell and saw a group of young men run
toward and surround her family. One came towards her with an orange
knife in his hand and yelled at her to get back. She screamed and saw that
another man had a knife at her sons throat and others were around her
husband. She yelled for help and then someone grabbed her hair, pulled her
head between her legs and kicked her in the chest and the face. She was
knocked backwards and saw stars. (T. 285-6, 298).

Mrs. Watkins viewed a number of line-ups over the next two days,
including one on September 4 involving Mr. Hincapie. The line-ups were
also viewed by other members of the Watkins family (the victims father
Sherman, his brother Todd, and Todds wife Michelle) as well as by the two
men who had observed the gang of youths flee the subway. Mr. Hincapie
was not identified in the line-up (or in court) by either Sherman, Todd or
Michelle Watkins. Nor was he recognized by either of the two men who
had observed the youths flee.

When Karen Watkins viewed the line-up that included Mr. Hincapie,
she said that he looked vaguely familiar. (H. 1154) However, in other
line-ups involving other defendants, Mrs. Watkins said the same kind of
9
thing, that certain individuals looked familiar or similar, but the
individuals she picked out were actually fillers. (T. 762, 768)

At trial, Mrs. Watkins did not recognize Mr. Hincapie. However, she
said that she had been pretty sure that the person she had selected on
September 4 was the young man who was standing next to her just before
she was grabbed by the hair and kicked. (T. 316-7)

Significantly, the only person she testified that she saw standing near
her when she was grabbed, was the person she had seen coming towards her
with the orange knife. (T. 291-2, 297-8) This is significant because there was
no question that Mr. Hincapie was not the person with the orange-handled
weapon.

That person was Emilio Fernandez the only man who identified Mr.
Hincapie, when the actual participants had already been arrested.

Every confessing participant identified Fernandez as having had an
orange box-cutter, and, indeed, Fernandez was still carrying it when he was
arrested. (H. 270, 844, 1450; T. 974).

That Mrs. Watkins may have confused Mr. Hincapie with Emilio
Fernandez when she viewed the line-up was apparent. The two looked
alike (as dramatically demonstrated in the courtroom when Officer Borman
pointed to Mr. Hincapie when asked to identify Fernandez, and then
remarked, gee they look alike (T. 1503)). Mrs. Watkins was described
as glazed and disoriented after the attack. (T. 727)

Not only was Mr. Hincapie not the person with the orange box-cutter
(and thus not the person Mrs. Watkins saw standing next to her), but also
there was other evidence that he was not the person who had grabbed her.
Another defendant, Pascal Carpentier, confessed that he was the person who
held one of the women back during the incident. (T. 650, 1277) (I was
holding off this lady so that she wouldnt interfere because she was
screaming.) (As stated above, Karen Watkins was the only one who was
grabbed, so Carpentier must have been the grabber. (Michelle Watkins
told the officers that she had not been touched. (H. 377))

10
In this context, I urge you to consider that Ricardo Lopezs statement
exculpating Mr. Hincapie, even though excluded at trial, is important and
should be considered now. Lopez told the authorities that he had met
around 60 guys on the train on the way to Roseland. Among those he
named were Pascal Carpentier, Gary Morales (Rocstar), Ricardo Nova,
and Johnny. He explained that some of his friends did not have enough
money to get into Roseland, and that they decided to rob somebody in order
to get the money. He specifically named Emilio and Rocstar as two
who did not have enough money, and said that he had seen Emilios
orange box cutter and Rocstars knife. (A.26-31)

Critically, Lopez specifically identified those who participated in
robbery, and stated unequivocally that Johnny was not among them
(Transcript of confession, emphasis added):

A. When we got out we ... went 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 of them left.

Q. Okay
A. And thats like it was eight of us.

Q. Who was there then?
A. It was Rocstar, Emilio, Score [Carpentier], Anthony, a --
who else? A-- whats 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.
11
Q. So all the others needed money. Right?
A. (Nods affirmatively.) All of them. All six of us.

Lopez then related the group of sixs descent into the subway and the
robbery. He re-emphasized that there were only six in the group who
surrounded the family (he maintained that Johnny and Kevin had left) (A.38
(Tr. at 17); emphasis added.):

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.

Lopez then referred to something that each of the six who remained had
done during the course of the robbery or during the groups flight.

Lopez, after exculpating Mr. Hincapie, as was the case of all the
arrestees who made inculpatory statements to the police, was sent to be
interviewed by Assistant District Attorney Donna Henken.

Lopez interview occurred less than an hour after ADA Henken had
interviewed Fernandez. Notably, while Lopezs assertion that Johnny
and Kevin left flatly contradicted Fernandezs claim that Kevin Mootin
(spelled variously as Mouton) and Johnny Hincapie were present (H.
1241), ADA Henken did not question Lopez about this discrepancy.

Notably, though the trial prosecutor objected to the introduction of
Lopez statement at Mr. Hincapies trial, this same prosecutor (ADA
Thomas Schiels) fully relied on Lopezs statement that Johnny and Kevin
left for its truth in the subsequent trial of Anthony Anderson, Gary Morales
and Ricardo Lopez. Thus, to counter defense arguments in that trial that
prosecution witnesses were lying to protect their friend Kevin Mouton, an
unindicted cohort who had been present on the subway platform and had
been referred to by some of the confessors, this same prosecutor argued that
there was no evidence that Kevin had had anything to do with the robbery.
To make this point, the prosecutor twice emphasized that, in Lopez
12
statement the very statement objected to by the prosecutor in Mr.
Hincapies trial -- Lopez had made the point said Kevin left before it
happened. (Prosecutors summation, Transcript of April 21, 1992, Trial of
Anderson, Morales and Lopez, at pp. 3292, 3336-7. Of course, Lopez had
said that Mr. Hincapie had also left, with Kevin, before it happened.
Mr. Hincapie was sentenced in 1992 to a term of imprisonment of 25
years to life on the murder charge, with lesser concurrent sentences on the
robbery counts.

His appeals have been turned down.

Only this office can review the matter again.

I urge you to review the case in light of the evidence of false
confessions, as has come to light in the exoneration through DNA testing of
convicted defendants, and in light of the vacatur of the contemporaneous
case of the Central Park joggers, who also had confessed.

It is unfortunate that Mr. Hincapie cannot turn to DNA. He is
turning to you.

There is no doubt that Mr. Hincapie was among the 60-or-so youths
who arrived at the subway stop for Roseland on the night that this vile
stabbing occurred; but as his co-defendant Lopez stated in his own
confession, Johnny and Kevin had left before the crime was committed.

Very truly yours,

Vivian Shevitz

cc: Johnny Hincapie - 92 A 0806
354 Hunter Street
Ossining, NY 10562

EXHIBIT L

EXHIBIT M

EXHIBIT N

EXHIBIT O

--------------------------------------------------------------------x


-against-
AFFIRMATION
JOHNNY HINCAPIE, OF SERVICE

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

Leah M. Busby, an attorney duly admitted to practice before the courts of
the State of New York, hereby affirms under the pains and penalties of perjury that
on November 25, 2013, she caused to be served one true copy of Defendants
Notice of Motion to Vacate the Conviction of Johnny Hincapie, and the
Affirmation and Memorandum of Law in Support thereof, upon the Office of the
District Attorney, New York County, One Hogan Place, New York, NY 10013 by
hand delivery, and upon Defendant Johnny Hincapie at Fishkill Correctional
Facility, 271 Matteawan Road, P.O. Box 1245, Beacon, New York, 12508-0307 by
pre-paid, first class United States mail.

November 25, 2013

________/S/___________________
LEAH M. BUSBY

Memorandum of Law Supporting Motion To Vacate

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SUPREME COURT OF THE STATE OF NEW YORK

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