REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO VACATE CONVICTION OF JOHNNY HINCAPIE

8/12/2019 REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO VACATE CONVICTION OF JOHNNY HINCAPIE

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SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY: PART 73

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THE PEOPLE OF THE STATE OF NEW YORK,

Respondent, Indictment No. 10641/90

-against-

JOHNNY HINCAPIE,

Defendant.

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REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO

VACATE CONVICTION OF JOHNNY HINCAPIE

LEAH M. BUSBY

RONALD L. KUBY

Law Office of Ronald L. Kuby

119 W. 23rd

Street, Suite 900

New York, New York 10011

(212) 529-0223

Attorneys for Johnny Hincapie

Dated: New York, New York

June 9, 2014


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TABLE OF CONTENTS

Table of Cases and Authorities ................................................................................. ii

I. HINCAPIE HAS MADE THE NECESSARY PRELIMINARY

SHOWING FOR THIS COURT TO GRANT A HEARING

PURSUANT TO C.P.L 440.10(1)(g) and C.P.L. 440.10(1)(h). ..................... 2A. The affidavits of Luis Montero and Anthony Anderson

sufficiently raise genuine issues of fact that can only be

resolved with an evidentiary hearing. ................................................... 2

Luis Monteros Affidavit ...................................................................... 2

Anthony Andersons Affidavit............................................................ 10

Hincapies Coerced Confession .......................................................... 10

B. Hincapie has acted with due diligence in obtaining the affidavitsof Montero and Anderson. .................................................................. 13

CONCLUSION ....................................................................................................... 16


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TABLE OF CASES AND AUTHORITIES

Cases

People v. Rodriguez,193 A.D.2d 363 (1st Dept. 1993) ...................................................................... 13-15

Statutes

C.P.L. 440.10(1) ........................................................................................................ 2

Other Authorities

DNA Exonerations Nationwide Factsheet, Innocenceproject.org,

available at http://www.innocenceproject.org/Content/DNA_Exonerations_

Nationwide.php# ........................................................................................................ 3

Prosecutor is Accused of Driving While Drunk, N.Y. Times, May 22, 1999 ..... 12

The Innocent Prisoners Dilemma: Consequences of Failing to Admit Guilt at

Parole Hearings, 93 Iowa Law Review 491, 497 (2008) ......................................... 3

Top Prosecutor Busted In DWI Collision, N.Y. Post, May 22, 1999 .................. 12


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SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY: PART 73

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

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent, Indictment No. 10641/90

-against-

JOHNNY HINCAPIE,

Defendant.

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

REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO

VACATE CONVICTION OF JOHNNY HINCAPIE

While the prosecutions opposition to the instant motion misrepresents many

of the facts of this case, relies on highly unreliable witnesses, and misstates the

applicable law, it does help make one thing clear: a hearing is required. The issues

presently before the Court cannot be determined without a thorough examination

of the witnesses proffered by both sides.

The prosecution predictably asks the court to decide this motion on the

papers, preferring trial by affidavit and argument. The dangers of such an

approach were briefly referenced during the prior Court appearance, when defense

counsel pointed out the material omissions in the Schiels Affidavit. More

basically, at hearing, Hincapie will establish that Luis Montero and Anthony

Anderson are credible and reliable witnesses, and that Tom Schiels and Anthony


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Nichols are not. After seeing the witnesses on both direct and cross-examination,

this Court will then make a determination about credibility that will decide

Hincapies fate.

I. HINCAPIE HAS MADE THE NECESSARY PRELIMINARYSHOWING FOR THIS COURT TO GRANT A HEARING

PURSUANT TO C.P.L. 440.10(1)(g) and C.P.L. 440.10(1)(h).

A. The affidavits of Luis Montero and Anthony Anderson sufficiently

raise genuine issues of fact that can only be resolved with an

evidentiary hearing.

The prosecution argues that the evidence provided in the affidavits of Luis

Montero and Anthony Anderson would not probably change the result of the

verdict, that the allegations of Montero and Anderson are demonstrably false,

and that Hincapie has not acted with due diligence in order to obtain the affidavits.

On the contrary, Hincapie has established the materiality and reliability of the

testimony of both witnesses, as well as his diligence in seeking this evidence, in his

submission to this court. Any questions the court may have as to each of these

issues can only be resolved with an evidentiary hearing.

Luis Monteros Affidavit

The prosecution makes the incredible claim that Monteros testimony should

not be believed because it is contradicted by Hincapies confession. Of course it

is.1The prosecution suggests that in order to be credible, Hincapies newly

1Its true that the constitutionality of Hincapies confession has been litigated. This does not


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discovered witnesses must provide evidence that is consistent with the confession

Hincapie claims is completely false. This is just silly. By such a standard, every

one of the 79 defendants in false confession cases that have resulted in

exonerations based on DNA evidence would still be in prison. See, DNA

Exonerations Nationwide Factsheet, Innocenceproject.org, available at

http://www.innocenceproject.org/Content/DNA_Exonerations_Nationwide.php#.

Next, the prosecution argues that Hincapies statements to his probation

officer prior to sentencing contradict his affidavit, and should Hincapie claim that

he felt he had to express remorse (having already been convicted), to credit such

an argument would serve only to advantage those who lie to law enforcement

officers, and allow those convicted of crimes, like Hincapie, to say whatever suits

their purposes, whenever it suits their purposes. (NYCDA Mem. of Law at 30, n.

6). The prosecution professes detachment from the reality it helped to create: under

certain circumstances, such as before sentencing and at parole hearings, innocent

men and women profess their guilt, usually at the advice of counsel, because they

have been told that all is lost and the only thing they can hope for is mercy. See,

The Innocent Prisoners Dilemma: Consequences of Failing to Admit Guilt at

Parole Hearings, 93 Iowa Law Review 491, 497 (2008).

prove that his confession was the truth. Moreover, Hincapie had not until recently obtainedevidence supporting his claim that his confession was coerced. Thus, no court has reviewed his

confession with all of the relevant facts.


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There are countless cases where the DANY assistants have thundered that

the defendant deserves the maximum sentence because she or he failed to show

remorse and instead, clings to the claim of innocence.

While its incomprehensible that the prosecution does not recognize such a

commonplace phenomenon, theres no need to speculate here. In a letter written to

his attorney in December 1991, Hincapie expresses his anger and confusion about

his attorneys advice to not discuss his claim of innocence in his statement to the

judge prior to sentencing. (Hincapie Letter to David Richman, Dec. 12, 1991).2

Specifically, Hincapie wrote:

My mother told meyou told her to tell me to leave out the part about my

innocence. That due to the jury finding me guilty the judge will not be

interested in hearing about that and that he could sentence me to the

maximum and not the minimum. My mother and me are disturbed about

thisI dont understand why I cant mention this

(Id.) That Hincapie acquiesced to the advice of counsel, given in the context of a

system that DANY had worked so mightily to rig against claims of innocence, is

hardly a surprise.

The prosecutions next claim is related to Anthony Nichols. In a recently

completed affidavit, Nichols claims that he saw 8 to 10 guys running from the

direction of the subway entranceThey included Hincapie and others who

ultimately were charged with the robbery and murder. (Nichols Aff. at para 3).

2This letter will be provided to the court and opposing counsel, at a hearing or if the Court

wishes to inspect it.


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Later in the same paragraph, he restates this: [Hincapie] was with the 8 or 10 guys

who were running. (Id.) Nichols must have a one-of-a-kind photographic memory

he apparently can remember seeing Hincapie in that group of guys today, 24

years later, even though he could not remember seeing him in the group less than

two years after the incident.

At the separate trial of Hincapies co-defendants, Nichols testified that he

saw eight to ten guys outside of the subway entrance when he first got off the

train. (Tr. 728). When asked who was in that group of guys, however, he

responded, I dont recall. (Id.) When asked for a second time who he saw in that

group of 8 to 10 guys, he said: I saw eight to ten guys standing I dont recall

who I exactly saw. (Tr. 729). Nichols also testified that he saw a group of eight

or so men running from the subway station as he was walking to Roseland. (Tr.

740-41). When asked by the prosecution who the people were that he saw running,

Nichols testified: I didnt actually see those people, but I assume they were the

ones (Tr. 743). The court struck Nichols testimony related to his assumption,

and then asked Nichols if he saw their faces. Nichols replied, No. (Tr. 743).

Obviously, Nichols memory becomes much clearer after being tutored by

DANYs wrongful conviction unit.

Oblivious to the irony, the prosecution asks this Court to find Nichols

recent affidavit credible while also arguing that Monteros omission of Hincapies


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name at the time of trial means that he never saw Hincapie. Monteros omission is

understandable Montero was never asked to list each and every person he saw

and where he saw them on the night of the mugging. (Montero Aff. at 10).

However, Nichols trial testimony is more than an omission he clearly stated that

he did not see the faces of the people running from the subway station. But, today,

Nichols magically remembers seeing Johnny Hincapies face. And the prosecution

is asking the court to believe him.3

Also according to his trial testimony, Nichols executed an immunity

agreement with the District Attorneys Office in exchange for information he

provided about the mugging. (Tr. 696). The prosecution neglects to mention this

agreement in its opposition, and Nichols also conveniently omits mention of the

agreement in his affidavit. While the existence of an immunity agreement does not

prove anything, it calls into question Nichols motives in providing an affidavit on

behalf of the prosecution.

In sum, Nichols affidavit is untrustworthy and the prosecution knows it.

Should the court wish to see Nichols be completely discredited on the witness

stand, Hincapies counsel will be happy to cross-examine him at an evidentiary

hearing.

3Hincapie is in possession of additional evidence that calls into question Nichols credibility. Ifthe court requires additional evidence before ordering a hearing in this matter, Hincapie will

provide it.


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The prosecution argues that Monteros affidavit is demonstrably false

because Montero neglected to mention Hincapies presence on the turnstile level

with him in the past. It is clear from Monteros original statement to police that he

wanted to distance himself from those he knew had been arrested for playing a role

in the mugging. (PR Exh. 5 at 9-11). Montero stated that he was waiting for John

Montenegro. (Id. at 10). In fact he, was waiting for Gary Morales, but this did not

come out until later. (RFD, PR Exh. 7 at 3). The prosecution seemed to understand

Monteros basis for holding back this information then, given that they ultimately

credited Monteros account and dismissed his indictment. Montero also did not

acknowledge that Rockstar was his cousin, and did not admit that he was his

friend right away. (PR Exh. 5 at 10). The prosecution argues, Montero had every

incentive to name every witness who could support his presence on the turnstile

level. (NYCDA Mem. of Law at 34). He most certainly did not. Montero could

have reasonably feared that, had he mentioned that he knew Hincapie was not

involved in the mugging, the questioning from police would get more intense and

the beatings the hitting, grabbing, and choking would only get more violent.

See, Montero Aff. at 7. Montero was trying very hard to not get falsely arrested

and indicted for a crime that he did not commit.

The prosecution argues that because this argument was not included in

Monteros affidavit, the court may not consider it. (NYCDA Mem. of Law at 34).


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This is not a factual claim that is a basis for Hincapies motion it is common

sense.

Monteros explanation about why he did not come forward earlier about the

information related to Hincapie is simple: no one ever asked him specifically about

Hincapie. (Montero Aff. at 10). Given his experiences at the hands of DANY, his

lack of civic volunteerism is understandable.

The prosecutions next claim related to Monteros credibility is that the

statements in his recent affidavit are untrue because of the timing of certain events

based on the trial record. The essence of this argument is that Montero never said

that he saw the perpetrators or the victims go through the turnstile, therefore he did

not see them. Because he never saw either of these events, and because the

mugging happened a few minutes after the victims went through the turnstile,

Montero was only on the bench at the turnstile level for a few minutes. Thus, the

prosecution concludes, there was not enough time for Montero to see and do what

he claims he saw and did in his recent affidavit. See, NYCDA Mem. of Law at 35-

37.

This is a clumsy attempt to discredit Montero based on bad logic. Monteros

statements related to Hincapie in his affidavit show that their interaction was rather

brief. See, Montero Aff. at 3-4. No one was keeping time. The prosecutions claim

that Monteros statements related to Hincapie are impossible is baseless.


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The prosecutions final argument related to Monteros credibility is that

Montero is biased in favor of Hincapie. This argument holds no weight. Hincapie

could argue that former ADA Thomas Schiels is biased in favor of himself and that

Anthony Nichols is biased in favor of the prosecution because they did him a huge

favor back in 1990, and therefore their affidavits cannot be believed. The

prosecution should be ashamed that they are standing by the brutal beating of an

innocent suspect by police officers and simultaneously claiming that when that

former suspect finally is brave enough to come forward with the truth, that hes

only doing it to disparage[] the work and reputations of those law enforcement

personnel. (NYCDA Mem. of Law at 38).

Finally, the fact that Montero did not make himself available to the

prosecution for questioning also proves nothing. It should be noted that the

prosecution states that Anthony Nichols made himself available to both sides,

suggesting that Nichols gave the same information to Hincapies legal team as is

currently in his affidavit. (NYCDA Mem. of Law at 38). The Court should be

aware that this is not true. Nichols inconsistencies can be addressed at an

evidentiary hearing. In any event, Mr. Montero has had two private interactions in

his life with DANYin the first, he was accused of a horrific crime and held

without bail for 18 months. In the second, he was exonerated for that crime. That

he chooses not to risk a third makes perfect sense.


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Anthony Andersons Affidavit

In its opposition, the prosecution merely speculates about the reasons

Anthony Anderson could be lying in his recent affidavit. For example, the

prosecution states: it is entirely possible that [Anderson] did see Hincapie but

did not know who Hincapie was. (NYCDA Mem. of Law at 39). The prosecution

has not and cannot disprove Andersons factual allegations. Therefore, the issue

that remains is Andersons credibility, which can only be tested at an evidentiary

hearing.

Hincapies Coerced Confession

Hincapie has always recited the same facts about what happened in the

interrogation room with Detective Casey, and that those events led him to confess

to a crime he did not commit. Attached here is Hincapies letter to his former

attorney, Sal Nigrone, on September 5, 1990. The letter is as moving as it is

chilling. In the letter, Hincapie tells Nigrone what happened that night, the truth,

the same statements that are in Hincapies recent affidavit. Hincapie told Nigrone

what happened when he told Detective Casey the truth: I was telling him the truth

but he said that was not good enough that I was a liar and that if I wanted to go

home I had to learn the story to the confession. (Hincapie Ltr., Sept. 5, 1990,

attached as Exhibit A).


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Affirmation, at para 17). This is a lie.4The Court does not need to take Hincapies

word for it. Also present in the room during Schiels interview of Hincapie was his

former attorney, Vivian Shevitz. Shevitz has submitted an affirmation on

Hincapies behalf. It is attached as Exhibit B. In her affirmation, Shevitz states as

follows:

I have reviewed the affirmation submitted by former ADA Schiels in this

matter, and I was shocked to read that Schiels claims that Mr. Hincapie re-

confessed to his role in the mugging during his interview. This is false.

Mr. Hincapie did not confess to any role in the mugging.

(Shevitz Affirmation at 1, para 2).

Shevitz also explains that Schiels incompletely states what Hincapie told

him during the interview about what took place in the interrogation room with

Detective Casey. (Id. at 5, para 7). Shevitz will be available to testify as to these

facts at an evidentiary hearing.

4As noted at the last court appearance, Mr. Schiels has his own credibility problems. In May

1999, Schiels was charged with drunken driving, leaving the scene of an accident andimpersonating a police officer. (Prosecutor is Accused of Driving While Drunk, N.Y. Times,

May 22, 1999). Citing the criminal complaint filed against Schiels, the New York Times article

states: Mr. Schiels then told Mr. Munoz that there was no need to report the accident to the

police, pulled out a gold badge and said he was an officer himself (Id.) See also, Top

Prosecutor Busted In DWI Collision, N.Y. Post, May 22, 1999. Somehow, former ADA

Schiels managed to get past this case, keep his job, and keep his law license. But his abuse of

power is disturbing and at the least, Hincapie must have the opportunity to cross-examine him at

an evidentiary hearing.


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B. Hincapie has acted with due diligence in obtaining the affidavits of

Montero and Anderson.

In its opposition, the prosecution evinces its naivet about the hurdles a

young imprisoned man, with little to no resources, faces in trying to procure

evidence on his behalf. The prosecution relies heavily on People v. Rodriguez, 193

A.D.2d 363 (1st Dept. 1993) in support for its claim that Hincapie should have and

could have obtained the evidence provided by Montero and Anderson pre-trial, and

therefore should be denied a hearing. This was a mistake the Rodriguez case is

much more helpful to Hincapie than to the prosecution. The most important

difference from Rodriguez and this case is that the credibility of Wendy Judge, the

purported newly discovered witness, was determined after a hearing. Moreover,

based on her affidavit alone, Wendy Judge was much less likely to be a credible

witness than Montero and Anderson are here.

In the Rodriguez case, Wendy Judge claimed in her affidavit that she was

guilty of the crime and Rodriguez was not. Id. at 364. Judge had not been

identified or apprehended previously. Id. It appears that all that was known at trial

about the unidentified witness-accomplice was that she was a woman. Id. As the

court surely realized, all Rodriguez had to do was find a woman who would submit

an affidavit on his behalf.

The evidence provided by Luis Montero, and the circumstances surrounding

the submission of his affidavit, couldnt be more different. Monteros precise


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location on a bench at the turnstile level of the subway station was known pre-

trial. Montero was there; he is not a witness pulled from the sky. Monteros recent

affidavit is also consistent with his statements around the time of the crime and

with the statements that corroborated his story a story that the prosecution

deemed credible when it dismissed his indictment. Unlike Rodriguez, who was on

the streets and able to personally search for his witness, Hincapie has been in

prison and without resources to hire investigators. He has had to rely on the good

will of various supporters. Given his circumstances, Hincapie has made every

effort to find exculpatory evidence that could be reasonably expected of him. See,

Hincapie Aff. at 10.5

The same is true with regard to Anthony Anderson. There is no question that

Anderson was present at the scene of the crime on September 2, 1990. At a

hearing, Hincapie will testify as to his various attempts to contact Anderson and

the other co-defendants through intermediaries to find out if they remembered

anything specific about Hincapies presence. Hincapie only learned that Anderson

specifically remembered that Hincapie had nothing to do with the crime, and was

willing to say so, at a chance encounter at Sing Sing. (Hincapie Aff. at 10).

5The prosecution argues that Hincapies affidavit is not newly discovered evidence and therefore

should not be considered by this court. This argument misses the mark. Hincapies affidavit isnot proffered as newly discovered evidence; it has been provided to support his claim of actual

innocence and to establish due diligence.


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Moreoever, Andersons attorney had advised him to keep [his] mouth shut about

any information in the case. (Anderson Aff. at 2).

Hincapies case is also materially different from Rodriguez in that there was

only one witness to Rodriguezs actions at the time of the crime. There was only

one person Rodriguez needed to find to corroborate his version of events.

Rodriguez claimed that he did not know her name or where she lived, so had

trouble finding her. Rodriguez, 193 A.D.2d at 364. The court pointed out that even

though Rodriguez happened to live around the corner from Judge, he did not

canvas the neighborhood to find her, hire an investigator, or interview

acquaintances about her whereabouts. Id. at 366. In this case, Hincapie spoke to

many different people in several different locations during the relevant time period

and did not know which individuals would have remembered seeing him, or when.

(Hincapie Aff. at 10). Despite this, he worked extremely diligently to try to speak

with anyone who might be able to provide helpful information. (Id.)

Thanks to the work of his supporters, Hincapie was finally able to track

down witnesses who can substantiate his claim of innocence. And the prosecution

does not even want the court to hear what these men have to say.

In one of the many parts of its opposition where the prosecution comes to a

conclusion without citing any logical basis, the prosecution contends, Hincapie

knew exactly what Montero would say. (NYCDA Mem. of Law at 26). This


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conclusion is apparently based on the fact that Hincapie knew Montero personally.

See, id. at n. 5. In fact, Hincapie did not know what Montero would say, and did

not learn what he would say until recently. That Hincapie knew Montero in no way

proves that he knew what he saw that night, or what he was willing to say about it.

Hincapies credibility as to this issue can be tested at an evidentiary hearing. At the

hearing, Hincapie will also tell the Court about all his efforts over the years to

obtain pro bono legal assistance, to hire investigators, and to otherwise recruit

supporters to help him prove his innocence. Should the Court have questions as to

his due diligence, Hincapie will submit a supplemental affidavit addressing this

issue.

CONCLUSION

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

vacated. In the alternative, a hearing must be held. Should the Court wish to

examine any additional evidence that has been referenced in this reply before

ordering a hearing, Hincapie will provide such evidence immediately.

Dated: New York, New York

June 9, 2014

__________________________LEAH M. BUSBY

RONALD L. KUBY

Law Office of Ronald L. Kuby

119 W. 23rd

Street, Suite 900

New York, New York 10011

(212) 529-0223


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EXHIBIT A


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EXHIBIT B


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REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO VACATE CONVICTION OF JOHNNY HINCAPIE

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