COVER

Supreme Court of the State of New York

County of New York: Part 73




THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

-against-

JOHNNY HINCAPIE,

Defendant.






MEMORANDUM OF LAW





CYRUS R. VANCE, JR.
District Attorney
New York County
Attorney for Respondent
One Hogan Place
New York, New York 10013
(212) 335-9000





EUGENE R. HURLEY III
WILLIAM DARROW
ASSISTANT DISTRICT ATTORNEYS
Of Counsel




TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ............................................................................................. iv
PRELIMINARY STATEMENT .................................................................................... 1
STATEMENT OF FACTS ............................................................................................... 7
1. The Murder of Brian Watkins ................................................................................... 7
2. Hincapies Arrest and Confessions ........................................................................... 9
3. Hincapies Motion to Suppress ............................................................................... 10
4. Hincapies Trial ......................................................................................................... 12
5. Hincapies Probation Interview and Sentence ...................................................... 13
6. Hincapies Appeal and His Prior Collateral Attacks ............................................. 14
7. The District Attorneys 2009 Review of Hincapies Conviction ......................... 16
8. Hincapies Motion ..................................................................................................... 17
a. Hincapies affidavit ................................................................................................... 18
(i) Allegations related to Hincapies alibi ................................................................ 18
(ii) Allegations related to Hincapies claim of coercion ........................................ 19
b. Monteros affidavit .................................................................................................... 19
(i) Allegations related to Hincapies alibi ................................................................ 19
(ii) Allegations purportedly related to Hincapies claim of coercion .................. 20
c. Andersons affidavit .................................................................................................. 21




-ii-
ARGUMENT...................................................................................................................... 22
POINT I
HINCAPIES NEWLY DISCOVERED EVIDENCE
CLAIM PURSUANT TO CPL 440.10(1)(g) FAILS
BECAUSE NONE OF THE EVIDENCE THAT
HINCAPIE PROFFERS IS NEWLY DISCOVERED,
NOR WOULD IT PROBABLY CHANGE THE
RESULT IF A NEW TRIAL IS ORDERED. ....................................... 22
A. Hincapies Alibi Claim Does Not Satisfy The Requirements Of CPL
440.10(1)(g) ....................................................................................................................... 23
1. The Alibi Information In Hincapies Affidavit Was Not Discovered Since
the Previous Trial Because It Was Known To Hincapie Before Trial. ............ 23
2. The Alibi Information In Monteros Affidavit Was Discoverable Before
Hincapies Trial By The Exercise Of Due Diligence. .......................................... 24
3. The Alibi Information In Andersons Affidavit Was Not Discovered Since
the Previous Trial. It Was Known To Hincapie Before Trial. ......................... 27
4. Hincapies Extraordinary Delay In Asserting His Alibi Undermines Its
Credibility ................................................................................................................... 27
5. The Information In Hincapies, Monteros, And Andersons Affidavits
Would Not Probably Change The Result If A New Trial Is Ordered ........... 29
a. The Alibi Allegations In Hincapies Affidavit Are Demonstrably False . 29
b. The Alibi Allegations In Monteros Affidavit Are Demonstrably False .. 33
(i) Monteros allegations are inconsistent with his prior statements .......... 33
(ii) Monteros account is inconsistent with the facts adduced at trial ........ 35
(iii) Montero is biased in favor of Hincapie .................................................. 37
c. The Alibi Allegations In Andersons Affidavit Are Unreliable And, In
Any Event, Not Material .................................................................................... 39


-iii-
B. Hincapies Coerced-Confession Claim Does Not Satisfy The Requirements Of
CPL 440.10(1)(g) .......................................................................................................... 40
1. Hincapies Affidavit ............................................................................................. 40
2. Monteros Affidavit ............................................................................................. 43
C. Hincapies Failure To Assert An Ineffective Assistance Of Counsel Claim Or
To Waive His Attorney-Client Privilege With His Trial Counsel Demonstrate The
Falsity Of His Alibi And Coercion Allegations ............................................................ 44
POINT II
HINCAPIES ACTUAL INNOCENCE CLAIM FAILS
AS A MATTER OF LAW BECAUSE A CLAIM OF
ACTUAL INNOCENCE REQUIRES CLEAR AND
CONVINCING EVIDENCE, AND HINCAPIES
EVIDENCE DOES NOT MEET THAT STANDARD. ..................... 46
POINT III
LOPEZS STATEMENT FAILS TO SUPPORT
HINCAPIES MOTION OR PROVIDE GROUNDS
FOR AN EVIDENTIARY HEARING. .................................................. 49
POINT IV
THE AFFIDAVITS OF WILLIAM HUGHES AND
ROBERT DENNISON HAVE NO PROBATIVE
VALUE AND SHOULD BE DISREGARDED. ................................... 51
CONCLUSION ................................................................................................................. 52


-iv-
TABLE OF AUTHORITIES

FEDERAL CASES
DAs Office v. Osborne, 557 U.S. 52 (2009) .......................................................................... 47
Herrera v. Collins, 506 U.S. 390 (1993) ................................................................................. 46
Hincapie v. Greiner, 155 F.Supp.2d 66 (S.D.N.Y. 2001) ............................................... 15, 51
Hincapie v. Greiner, 56 Fed. Appx. 61,
2003 U.S. App. LEXIS 3354 (Feb. 24, 2003) ........................................................ 15, 51
McQuiggin v. Perkins, 133 S.Ct. 1924 (2013) ........................................................................ 46
United States v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991) ..................................................... 45
United States v. Cortes, 922 F.2d 123 (2nd Cir. 1990).......................................................... 30
United States v. DiPaolo, 835 F.2d 46 (2d Cir. 1987) ........................................................... 37
STATE CASES
Am. Re-Ins. Co. v. U.S. Fid. & Guar. Co., 40 A.D.3d 486 (1st Dept. 2007) .................... 45
Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663 (2nd Dept. 1984) ........... 46-47
People v. Brown, 98 N.Y.2d 226 (2002) ................................................................................. 32
People v. Cortijo, 291 A.D.2d 352 (1st Dept. 2002) ............................................................. 30
People v. DeGondea, 3 A.D.3d 148 (1st Dept. 2003) ........................................................... 29
People v. Gurley, 197 AD2d 534 (2d Dept. 1993) ................................................................ 22
People v. Hamilton, 115 A.D.3d 12 (2d Dept. 2014) ............................................... 46-49, 53
People v. Hanley, 255 A.D.2d 837 (3d Dept. 1998) ....................................................... 28, 40
People v. Hincapie, 217 A.D.2d 401 (1st Dept. 1995).......................................................... 15
People v. Hincapie, 86 N.Y.2d 843 (1995) ............................................................................. 15
People v. Huggins, 144 Misc.2d 49 (Sup. Ct. NY Co. 1989) ......................................... 37, 40

-v-
People v. Jones, 101 A.D.3d 1482 (3d Dept. 2012) .............................................................. 45
People v. Knowles, 12 A.D.3d 939 (3d Dept. 2004) .............................................................. 23
People v. Leivi, 59 A.D.3d 161 (1st Dept. 2009) ................................................................. 45
People v. Melio, 304 A.D.2d 247 (2d Dept. 2003) ......................................................... 28, 40
People v. Monroe, 40 N.Y.2d 1096 (1977) ............................................................................. 40
People v. Mota, 36 A.D.3d 433 (1st Dept. 2007) ................................................................. 26
People v. Nixon, 21 N.Y.2d 338 (1967) .......................................................................... 28, 40
People v. Ortiz, 114 A.D.3d 430 (1st Dept. 2014) ............................................................... 32
People v. Ozuna, 7 N.Y.2d 913 (2006) .................................................................................. 45
People v. Perry, 36 N.Y.2d 114 (1975) ................................................................................... 30
People v. Reyes, 255 A.D.2d 261 (1st Dept. 1998) ............................................................... 22
People v. Rodriguez, 193 A.D.2d 363 (1st Dept. 1993) ................................................... 25-26
People v. Ross, 2009 N.Y. Misc. LEXIS 4533 (Sup Ct., Kings Co. 2009) .................. 27, 40
People v. Salemi, 309 N.Y. 208 (1955) ................................................................................... 22
People v. Satterfield, 66 N.Y.2d 796 (1985) ........................................................................... 52
People v. Shilitano, 218 N.Y. 161 (1916) ............................................................................... 37
People v. Singleton, 1 A.D.3d 1020 (4th Dept. 2003) ........................................................... 26
People v. Suarez, 98 A.D.2d 678 (1st Dept. 1983) ............................................................... 37
People v. Taylor, 246 A.D.2d 410 (1st Dept. 1998) ............................................................. 27
People v. Turner, 5 N.Y.3d 476 (2005) ............................................................................. 46-47
People v. Williams, 292 A.D.2d 292 (1st Dept. 2002) ......................................................... 23

-vi-
STATE STATUTES
CPL 440.10 .................................................................................................................. passim
CPL 440.30 ...................................................................................................... 34, 44, 45, 52
OTHER AUTHORITIES
4 Wigmore Evidence [Chadbourne ed.] Sec 1078 at 179 ...................................................... 32
Richardson on Evidence [11th ed.] Sec 8-208 at 518.............................................................. 32



SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 73


THE PEOPLE OF THE STATE OF NEW YORK,


-against-

JOHNNY HINCAPIE,

Defendant.




PRELIMINARY STATEMENT
The People respectfully submit this memorandum of law in opposition to
defendant Johnny Hincapies motion to vacate his conviction pursuant to CPL
440.10(1)(b), (d), (f), (g) and (h).
By a judgment entered January 3, 1992, in Supreme Court, New York County
(Torres, J.), Hincapie was convicted, after a jury trial, of Murder in the Second Degree
(Penal Law 125.25(3)), and two counts each of Robbery in the First and Second
Degrees (Penal Law 160.15(3), 160.10(1) and (2)(a)). Hincapie was sentenced to
concurrent, indeterminate prison terms of from 25 years to life on the murder count,
from eight and one-third to 25 years on the first-degree robbery counts, and from five
to 15 years on the second-degree robbery counts. He is currently serving his
sentence.

-2-
Hincapies conviction was based on his participation in a brutal gang attack
against the Watkins family inside a Manhattan subway station in September 1990.
Hincapie and his co-defendants entered the subway that evening, intent on robbing
people so they could obtain the admission fee to a Manhattan dance club called
Roseland. The group passed through the turnstile level of the subway station and
descended to the platform level, where they encountered the Watkins family waiting
for a train. Two of Hincapies accomplices produced a knife and a box cutter.
Members of the group attacked Sherwin Watkins, cutting out his pants pocket and
stealing his wallet. As Sherwins wife, Karen, tried to help her husband, Hincapie and
another accomplice grabbed her, pulled her hair and kicked her. When the Watkins
son, 22-year old Brian, ran to his mothers aid, Hincapies cohort, Yull Gary Morales,
fatally stabbed him once in the chest. Hincapie and the others fled with Sherwins
cash and spent the night at Roseland. Brian Watkins died of his wound before ever
reaching the hospital. The next day, Hincapie was taken into custody and, after
waiving his Miranda warnings, confessed to his participation in the felony murder.
Now, 23 years after a trial jury found him guilty beyond a reasonable doubt,
and after various unsuccessful appeals and petitions in state and federal courts to set
aside his conviction on other grounds, Hincapie advances a new claim that he was
not at the scene of the crime for which he was convicted. Hincapies claim is based
on two essential factual allegations:

-3-
First, he alleges that he was not present on the subway platform during the
crime but was on the floor above (the turnstile level) with Luis Montero. He adds
that he did, at some point, start to descend the escalator to the platform level, but he
claims he was merely looking for a friend, Anthony Nichols, to whom Hincapie had
allegedly given money to hold for safekeeping. He adds that when he heard screaming
and saw people running, he turned and fled back up the escalator, bumping a woman
in the process.
1

Second, Hincapie alleges that his stationhouse confession was the product of
physical coercion by Detective Donald Casey, who physically assaulted Hincapie, told
Hincapie what to say, forced him to memorize the false narrative, and threatened him
if he failed to say it.
Based on those allegations, Hincapie moves to set aside his conviction on the
ground that his various factual allegations regarding his purported alibi constitute
newly discovered evidence pursuant to CPL 440.10(1)(g), and establish his actual
innocence pursuant to CPL 440.10(1)(h). He also moves to reopen his suppression
hearing and set aside his conviction, pursuant to CPL 440.10(1)(b), (d), (f), and (h)

1
The escalator reaches the platform level of the station at a considerable distance
from the scene of the robbery and murder. There is a stairway (which also connects the
turnstile level and the platform level) located between where the escalator reaches the
platform and where the crime occurred. See Scale Model of Subway Station, PR Ex 15
(available for inspection); Photographs of Scale Model, PR Ex 16. Thus, Hincapies new
claim has him far removed from the crime.


-4-
on the ground that the detectives testimony at the suppression hearing was perjurious
because the detectives did not reveal that Hincapies confession had been coerced,
and thus Hincapie was denied his due process right to a hearing. In support of his
motion, Hincapie relies almost entirely on three affidavits: his own, that of Luis
Montero (a co-defendant of Hincapie whose case was dismissed), and that of
Anthony Anderson, also a co-defendant of Hincapie, who was convicted following a
separate trial and is currently serving his sentence.
None of Hincapies allegations constitute newly discovered evidence under
CPL 440.10(1)(g). More specifically, insofar as Hincapie submits his own affidavit
advancing claims of alibi and coercion, his factual assertions do not remotely amount
to newly discovered evidence: Hincapie presumably has always known his own
whereabouts at the time of the murder, including whether he was on the turnstile level
with Luis Montero and descending the escalator when the crime was committed, and
he also knew whether he had been coerced to confess. Nor are the affidavits from
Montero and Anderson in support of the claim of alibi newly discovered. Hincapie
was aware through pre-trial discovery of Monteros claim to the police that Montero
remained on the turnstile level throughout the crime. Similarly, Hincapie was aware
through pre-trial discovery of Andersons pre-trial confession in which Anderson did
not name Hincapie as one of the accomplices. And, he was reminded of both
Monteros and Andersons statements by the testimony at a joint pretrial suppression
hearing held for Hincapie and all of his co-defendants. Hincapie offers no explanation

-5-
as to why he did nothing to act on this information at the time of trial, or seek in the
23 years since his conviction was final to secure the affidavits he now tenders from
Montero and Anderson. See infra Point I.A.1-4.
Moreover, the newlyminted claims of alibi and false confession are
demonstrably false. Those claims are completely at odds with Hincapies numerous
prior statements about his complicity in the crime. In addition, Hincapies detailed
story contained in his affidavit that he descended the subway escalator only to retrieve
money from his friend Anthony Nichols, and that he met Nichols after leaving the
subway station and walked with him to Roseland is refuted by an affidavit from
Nichols. Nichols flat out denies that Hincapie gave him any money to hold and
further avers that while he was walking to Roseland he saw Hincapie running from
the direction of the station towards Roseland with others who were later charged with
the robbery and murder. As for Hincapies confession, he vigorously challenged the
admissibility of his confession at a pre-trial hearing on numerous other grounds and
raised the same issues again at trial. Yet, he never once suggested that his confession
was the product of physical coercion. Nor did he make such a claim in any of the
extended post-trial litigation challenging his conviction. See infra Points I.A.5; I.B.
If Hincapies factual allegations were true, then he would plainly have a claim of
ineffective assistance of his trial counsel. The reason that he has not asserted such a
claim is not hard to fathom: The assertion of the claim would almost certainly require
Hincapie to waive his attorney-client privilege covering communications with his trial

-6-
counsel, and waiver of the privilege would allow trial counsel to say whether Hincapie
told him about any alibi witness or coercion by Detective Casey. Only the fear of
contradiction would prevent Hincapie from waiving the privilege, and it is thus
significant that he has not asserted a claim of ineffective assistance of counsel. See
infra Point I.C.
Because Hincapies submissions in support of his motion are incredible on
their face, his related claim that they establish his actual innocence of the crime falls of
its own weight. Thus, his motion pursuant to CPL 440.10(h) must also be
dismissed. See infra Point II.
Hincapie also proffers the statement of one of his co-defendants, Ricardo
Lopez, but that statement has already been examined by numerous courts and found
wanting. There is no reason that it would be entitled to greater credit today. See infra
Point III. And, Hincapie relies on two affidavits of people who have no first-hand
knowledge of the case yet have spoken with him and attest to their belief in his most
recent story. The affidavits, however, are of no evidentiary value. See infra Point IV.
For all these reasons, detailed more fully below, Hincapies motion should be
summarily denied.


-7-
STATEMENT OF FACTS
2

1. The Murder of Brian Watkins
Hincapies conviction arose from the killing of 22-year old Brian Watkins, a
visitor to New York, in a robbery and murder committed for money to go dancing.
At about 10:00 p.m. on Sunday September 2, 1990, 18-year old Hincapie arrived at a
subway station at 53rd Street and Seventh Avenue in Manhattan with a large group of
teenagers from Queens, all bound for Roseland, a midtown dancehall. Hincapie and
his friends did not have enough money to pay their way into Roseland; and Hincapie
and six others decided to return to the subway and "get paid," i.e., commit a robbery
for money to get in to the club. See Confession Transcript of Johnny Hincapie, DM
Ex J, at 9-11. As bystander Antonio Gonzalez looked on, Hincapie and his six friends
reentered the subway. One of the group, Anthony Anderson, shouted, "It's killing
time. I'll fuck anybody up." See Trial Transcript, PR Ex 10, A. Gonzalez: T386, 390-
94, 407-08, 415-19.
At that moment, Brian Watkins was purchasing tokens at the token booth.
Brian, his father and mother (Sherwin and Karen), his brother Todd, and Todd's wife
Michelle, were on their way to dinner in Greenwich Village. The Watkins family

2
The facts set forth herein are matters established by the exhibits submitted with
Hincapies motion papers, or by the exhibits submitted with this response in opposition,
which include the record of the suppression hearing, trial and sentencing proceeding, as
described in the Affirmation of Assistant District Attorney Eugene R. Hurley III. Additional
facts based on the same materials are set forth where relevant in the argument section of the
brief.

-8-
followed Hincapie and his friends into the subway. See Trial Transcript, PR Ex 10, S.
Watkins: T187-92, 219-30; K. Watkins: T278-85, 319-24, 361-62; M. Watkins: T469-
76, 500-01, 504-05, 520; T. Watkins: T535-41, 564-65, 580. Peering from behind a
staircase, Hincapie and the other robbers saw the family clustered on the platform and
chose them as targets of the planned robbery. See Confession Transcript of Johnny
Hincapie, DM Ex J, at 18-20; Trial Transcript, PR Ex 10, S. Watkins: T192-93, 245-
46; M. Watkins: T477-78, 502-03, 513-14.
The robbers raced shouting and yelling down the platform and surrounded the
Watkins family. One robber, Emiliano Fernandez, menaced them with an orange-
handled box-cutter knife. Anderson pinned Sherwin Watkins to the subway platform.
As he did so, Fernandez cut Watkins' wallet from his pocket, inflicting bloody slashes
on Watkins' buttocks. Karen Watkins tried to help, but Hincapie interfered. Hincapie
and an accomplice grabbed her, pulled her hair, and kicked her. Brian Watkins went
to his mother's defense, but Yull Gary Morales grabbed him by the neck from behind
and plunged a silver butterfly knife fatally into his chest. See Trial Trancript, PR Ex
10, S. Watkins: 193-200, 203-05, 214-16, 231-33, 245-51, 262; K. Watkins: T285-94,
298-300, 324-27, 331, 335, 339-40, 345-46, 354-55, 361-62; M. Watkins: T478-82, 505-
07, 510, 521-22; T. Watkins: T541-50, 565-67, 569-71, 579.
As the robbers fled with $150 stolen from Sherwin Watkins, a witness heard
screams and rushed into the subway. Gonzalez met Anderson and two others
running upstairs and asked, "Where's the party?" They answered, "Roseland." See

-9-
Trial Transcript, PR Ex 10, A. Gonzalez: T394-97, 406, 411; Vasquez: T438-39. Brian
Watkins pursued the robbers, trailing blood, as far as the subway entrance, where he
collapsed in his sister-in-law's arms. Brian was rushed to St. Vincent's Hospital but
died before he got there. See Trial Transcript, PR Ex 10, S. Watkins: T195-96, 206-09,
228-29, 233; K. Watkins: T287-88, 302-05, 322, 327-28; M. Watkins: T482-85, 510,
521-23; T. Watkins: T543-45, 551-53, 584; Honeyman: T1933-50.
Hincapie and his accomplices went directly to Roseland. Ricardo Nova bought
tickets with the proceeds of the robbery, and the robbers entered the club, where they
spent the night dancing. See Hincapies Written Statement, PR Ex 6; Videotaped
Confession of Johnny Hincapie, DM Ex I; Confession Transcript of Johnny
Hincapie, DM Ex J, at 25-27.
2. Hincapies Arrest and Confessions
In short order, the police identified several members of the group who had
taken part in the crime. One of them was Hincapie.
On September 3, 1990, the police found Hincapie at his home, and brought
him to the police station where, after he was read his Miranda rights, he made oral,
written, and videotaped statements. In the statements, Hincapie admitted that he had
travelled by subway with others to go dancing at Roseland, even though they did not
have money to get in, and that, after exiting the subway station at 53rd Street and
Seventh Avenue, they re-entered it, having agreed to commit a robbery to get the
money they needed to go dancing. Hincapie further admitted that he descended with

-10-
the others to the subway platform, aware that at least two of his cohorts had knives,
and that while on the platform he grabbed a woman (later determined to be Karen
Watkins) and pulled her away from a man who had been knocked down, while
another robber kicked Karen Watkins. Hincapie also admitted that he and the others
had used the $150 from the robbery to gain admittance to Roseland. See Hearing
Transcript, PR Ex 10, Casey: H314-16, 485-97, 503-509; C. Gonzalez: H1032-1135;
Christie: H1241-1365; Trial Transcript, PR Ex 10, Casey: T696-706, 803, 835-45,
1086-91, 1131-34; C. Gonzalez: T1211-33, 1301-03, 1318-22, 1325-28, 1333-34, 1341-
63, 1372, 1377, 1400-01; Christie: T1977-93, 2011-36, 2066-2130, 2188-2211, 2207-18,
2221-26; Additional Statements, PR Ex 5, at 7; Hincapies Written Statement and
Miranda Form, PR Ex 6; Videotaped Confession of Johnny Hincapie, DM Ex I;
Confession Transcript of Johnny Hincapie, DM Ex J; Peoples Brief for Suppression
Motions, PR Ex 14, Statement of Facts at 28-34, Point VI at 72-78; Peoples Brief
for Hincapies Appeal, PR Ex 21, The Evidence At The Hearing at 13-27, The
Evidence At Trial at 44-45.
3. Hincapies Motion to Suppress
Hincapie and seven others were indicted for felony murder and four counts of
robbery. Hincapie moved to suppress his statements, including his oral and written
statements to police detectives and his subsequent videotaped statement, and he also
moved to suppress the lineup identification of him by Karen Watkins. The seven
other defendants also moved to suppress their statements and identifications, as well

-11-
as physical evidence. The Court held a joint suppression hearing for all of the
defendants, including Hincapie.
Hincapies theories at the suppression hearing with respect to his statements
were (1) that the statements were the fruit of an unlawful arrest, (2) that he had
invoked his right to counsel at his home before accompanying the detectives to the
stationhouse, and (3) that the detectives used manipulative and suggestive questioning
to get him to waive his right to counsel and make a false confession. The other seven
defendants had similar theories, each depending on the particular circumstances of
their confessions. Most significant for purposes of the motion is that none of the
defendants alleged that he had been physically coerced into giving a confession or into
making inaccurate confessions. See Peoples Brief for Suppression Motions, PR Ex
14, Point VI at 72-78; Peoples Brief for Hincapies Appeal, PR Ex 21, The Evidence
At The Hearing Justice Torres Decision at 33-35.
At the hearing, Hincapie presented testimony of his mother and a family friend
to try to establish that Hincapies mother had invoked his right to counsel for him and
that the detectives had effectively taken Hincapie into custody in his home without
probable cause. See Hearing Transcript, PR Ex 10, Carrasco: H2255-2396; M.
Hincapie: H2319-2375. Johnny Hincapie did not testify.
The hearing court denied Hincapies motion to suppress. See Peoples Brief for
Hincapies Appeal, PR Ex 21, The Evidence At The Hearing Justice Torres
Decision at 33-35.

-12-
4. Hincapies Trial
The defendants were tried in two groups. Four of the defendants, including
Hincapie, were tried first, with the trial running from October December 1991. The
principal evidence against Hincapie was his own statement and the pre-trial
identification of him by Karen Watkins.
At trial, Hincapie challenged his statements on the same theories he had
advanced at the suppression hearing. To that end, Hincapies mother and the family
friend testified again about Hincapies arrest, as did two additional witnesses.
Hincapie also presented the testimony of two psychiatric experts to try to establish
that he had a learning disability and problems understanding and speaking English
and so was susceptible to being manipulated into waiving his rights and making a false
confession. See Trial Transcript, PR Ex 10, Maxwell: T2568-2646; Weinstock: T2647-
58; Martinez: T2660-73; M. Hincapie: T2674-2743; Honor: 2745-2896; Carrasco:
T2906-2955. There was neither evidence nor questioning about any physical coercion
of Hincapie or any other defendant.
In addition, Hincapie argued to the trial court that a portion of the videotaped
statement of defendant Ricardo Lopez, in which Lopez stated that Johnny and
Kevin left before the robbery, exculpated him, and he applied to offer it in evidence
under the declaration against penal interest exception to the hearsay rule. The trial
court denied the application, ruling that the portion of Lopezs statement which
Hincapie sought to admit was not a declaration against Lopezs penal interest and, in

-13-
any event, was not probative because it did not reliably identify Hincapie as Johnny.
See Trial Transcript, PR Ex 10, Proceedings: T2531-74. Hincapie did not testify at
trial.
Hincapie and the other three defendants on trial were found guilty as charged
in the indictment. See Trial Transcript, PR Ex 10, Verdict: T3564-79.
5. Hincapies Probation Interview and Sentence
Following the jurys verdict and prior to his sentence, Hincapie was interviewed
for the Presentence Report. Hincapie admitted that he did not have enough money
for admission to Roseland, and that he and his companions exited the train station,
but shortly thereafter went back downstairs to the platform. There, he saw a robbery
taking place and claimed he pushed Karen Watkins as she was blocking his path as
he was attempting to leave. When asked as to why he was involved in the instant
offense, he stated, it just happened quick; I was nervous, I guess. He expressed his
remorse. See Presentence Report, PR Ex 3, Summary of Offenders Statement at 9-
10.
At the sentencing proceeding, Hincapies attorney, seeking leniency, admitted
that Hincapie had been involved in the robbery, but asserted that Hincapie had gone
to the subway station platform separately from the other defendants only to find one
of them, Score (Pascual Carpenter), to get money from him that another friend,
Anthony Nichols, said he had given to Score. The attorney said that when

-14-
Hincapie arrived on the platform he became caught up in the robbery, and dragged
Karen Watkins. See Sentencing Transcript, PR Ex 10, 1/3/91 at 19-20.
Hincapie was sentenced to a term of imprisonment of 25 years to life.
6. Hincapies Appeal and His Prior Collateral Attacks
Hincapie undertook a lengthy series of appeals and petitions through the state
and federal courts.
Initially, Hincapie and his three trial co-defendants filed two CPL 440.10
motions to vacate the conviction, one on the ground that the trial judge had
improperly instructed the jury inside the jury room and outside the presence of
counsel, and the other alleging a Rosario violation on the ground that the prosecutor
had not provided the defendants with the audiotape from Brian Watkins autopsy.
Both of those motions were denied by the trial court. Hincapie appealed the
decisions and was granted leave to consolidate them with his direct appeal.
Hincapies direct appeal challenged the sufficiency of the evidence of guilt, as
well as the ruling denying that branch of his motion to suppress his statements as the
fruit of an illegal, warrantless arrest, and the trial courts ruling denying his application
to introduce Lopezs statement in evidence. The Appellate Division, First
Department, affirmed Hincapies conviction and the rulings denying his 440.10
motions. In the opinion, the appeals court stated that the defendants own
statements regarding his participation in the crimes charged were supported by an
abundance of corroborating evidence, including the testimony of eyewitnesses

-15-
regarding the details of the robbery, and one victims identification of defendant in a
lineup as someone who looked familiar from the robbery. People v. Hincapie, 217
A.D.2d 401, 402 (1st Dept. 1995). The Court of Appeals denied leave to appeal.
People v. Hincapie, 86 N.Y.2d 843 (1995).
Hincapie then petitioned in federal court for habeas corpus relief, on the theory
that his due process rights had been abrogated by the exclusion from evidence of
Lopezs statement. The petition was denied by the District Court for the Southern
District of New York in 2001. In her opinion, Judge Cedarbaum observed that, the
evidence against petitioner was overwhelming and Lopezs statement would not have
created a reasonable doubt as to petitioners guilt. Hincapie v. Greiner, 155 F.Supp.2d
66, 69 (S.D.N.Y. 2001). The District Courts order was affirmed by the Second
Circuit in 2003. See Hincapie v. Greiner, 56 Fed. Appx. 61, 2003 U.S. App. LEXIS 3354
(Feb. 24, 2003). The Second Circuit explained that the exclusion of Lopezs statement
did not violate Hincapies rights because the statement was not reliable:
The portions of Lopezs statements that Hincapie sought to introduce
were hearsay and did not bear assurances of trustworthiness. Lopezs
assertion that Hincapie was not present at the scene was not against
Lopezs criminal interest, it was not subject to cross-examination, and it
carried no indicia of reliability.

56 Fed. Appx. at 62, 2003 U.S. App. LEXIS 3354, *2-3.




-16-
7. The District Attorneys 2009 Review of Hincapies Conviction
In 2007, Hincapies new attorney, Vivien Shevitz, wrote a letter to the District
Attorney requesting that Hincapies conviction be reviewed. In the letter she stated
that Hincapie continued to maintain that he was on the platform at the robbery scene,
but only at the periphery of the group of robbers. Thus, describing Hincapies
videotaped confession, Shevitz wrote:
While [Hincapie] at one time [in the taped confession] agreed that he had
grabbed a woman and pushed her away, he more often placed himself at
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 (DM Ex K, page 7)(emphasis
added).

At Shevitzs urging, in 2009 the District Attorneys Office undertook a review
of Hincapies conviction, including an interview of Hincapie himself. In the
interview, Hincapie for the first time asserted that he re-entered the subway station to
search for Anthony Nichols and retrieve money he had given Nichols to hold for him,
and he denied participating in the planning or execution of the robbery. Nevertheless,
and contrary to his current affidavit, Hincapie admitted getting to the platform level,
seeing the robbery melee there, and having a physical altercation with a woman who
ran from it toward him. In addition, when asked to describe how his written
statement to the detectives came about, Hincapie stated that Detective Christie
interviewed him with Detective Casey in the room; that Detective Christie then wrote
the statement, which Hincapie reviewed; that Hincapie determined that the written

-17-
statement was accurate, and that he signed it. Furthermore, when asked at the 2009
interview whether the content of his written statement was true, Hincapie replied that
it was. See Schiels Affirmation, PR Ex 1, at 15-17.
Hincapie further stated that after he signed the written statement, Detective
Casey squeezed him by the back of his neck and told him he better repeat his story to
the lady (referring to the assistant district attorney). See Schiels Affirmation, PR Ex 1,
at 18. He did not describe any other coercive or abusive conduct by Detective
Casey or any other detective. Id.
Following the review, the Office determined that there was no basis on which
to question the conviction.
8. Hincapies Motion
Hincapie filed the motion that is the subject of this proceeding on November
25, 2013. As set forth above and described in detail below, the gist of his claims are
(a) that he was not present at the scene of the crime when it was taking place, and (b)
that his confession was physically coerced by Detective Donald Casey, who coached
him on what story to tell, forced him to memorize the story, and physically threatened
him if he did not tell the story. In support of these claims, Hincapie provides three

-18-
affidavits his own and those of Montero and Anderson.
3
These affidavits are
summarized here for the Courts convenience.
a. Hincapies affidavit
(i) Allegations related to Hincapies alibi
Hincapie came to Manhattan with a large group of friends to go dancing at the
Roseland. He had given his money to his friend Anthony Nichols to hold since
Nichols was carrying a fanny pack and Hincapie was wearing designer pants with no
pockets. Hincapie Affidavit 5-8. After leaving the E train subway station in
Manhattan, Hincapie could not find Nichols and was told he might be back in the
station. See id. 10-11. Hincapie re-entered the subway and spoke with several
people, including someone sitting on a bench, and was told that some people were
down at the train level. See id. 12. He went down the middle escalator looking for
Nichols, heard screaming, and saw a crowd of people coming towards [him]
screaming. Id. 13. He turned to go back up the escalator, which he thinks was not
running, bumped a lady as he turned, and ran with the crowd. See id. 14. He met
Nichols on the street, and the two walked to Roseland together, talking about how
they had been looking for one another. See id. 15.



3
He also provides two ancillary affidavits, from William Hughes and Robert
Dennison. Those are described in Point IV, below.

-19-
(ii) Allegations related to Hincapies claim of coercion
At the precinct, Hincapie was left alone with Detective Casey who threatened
and physically assaulted Hincapie, forcing him to memorize the facts contained in his
confessions. Specifically, Casey blew smoke on him, cursed at him, slapped him,
pulled his hair, and put his foot on his chest, forcing Hincapie to the floor. See
Hincapie Affidavit 27-29. Casey told Hincapie that he could go home immediately
if he would memorize a story. Hincapie agreed. See id. 30-31. Hincapie listened
attentively and memorized the story which he subsequently repeated to Detective
Christie, and, on videotape, to the Assistant District Attorney. See id. 32-33, 37, 41.
b. Monteros affidavit
(i) Allegations related to Hincapies alibi
Montero came to Manhattan to go dancing at Roseland with a group that
included his friend Yull Gary Morales (a co-defendant in the case), and Hincapie, an
acquaintance whom he had met through Morales. See Montero Affidavit 4-8.
After they left the subway station, Morales re-entered it, telling Montero that he
would be right back. See id. 9. After an unspecified period, Montero returned to the
station, jumped the turnstile, and sat on a bench on the turnstile level waiting for
Morales. See id. 9-12. As he waited, Hincapie came back into the station and
approached Montero; the two men spoke for a few minutes. Id. 13. Hincapie
asked about someone (Montero avers that he does not recall about whom Hincapie
asked), and then left the station. See id. 13. Hincapie returned a short time later and

-20-
again spoke with Montero; this time, they talked about a couple of girls who were
standing nearby. See id. 13-15. Montero does not specify how long they spoke
about the girls. See id.
Hincapie then started down the escalator toward the train platform. As
Hincapie started to walk down the escalator, Montero heard screaming coming from
the train platform. He ran to the escalator which was not running, and saw people
walking down the stairs. See id. 16-18. Hincapie had almost reached the bottom of
the escalator, but then turned around and ran back up. Montero saw Hincapie bump
a lady as he ran back up and the lady gave him a dirty look. See id. 18-19. Montero
panicked, grabbed his shirt from the bench and ran out of the station. He saw
Hincapie ahead of him on the stairs as he ran out. See id. 22-23.
(ii) Allegations purportedly related to Hincapies claim of coercion
At Roseland later, Montero was taken into custody and, after a show up
identification procedure, was taken to the precinct station house, where he was
handcuffed to something so that he was hanging by his arms. See Montero Affidavit
28-33. He was asked a lot of questions, but he kept saying no. His
questioners (whom Montero does not identify) got mad. Id. 34-36.
Montero was told (he does not identify by whom) that if he said what
happened, he could go home, but he kept saying the same thing. Id. 38-40.
Montero was taken to another room and asked to sign a paper, but he refused. See id.
40-41. He was then verbally abus[ed], id. 41, and he was taken to yet another

-21-
room where, when he stated that he had already said everything, he was hit with a
pouch thing, screamed at, grabbed, and choked. Id. 43-46. Again, Montero does
not identify the people who allegedly hit him, other than to say that they were
different than the people who had questioned him earlier. See id. 45.
When asked again to sign a paper, although he was afraid for his life he replied,
fuck you Im not signing anything. Id. 47-48. He was asked if he would speak
with the Assistant District Attorney, and he eventually agreed to do so, see id. 50-
52, but was told that it was too late because the ADA had left. See id. 52.
c. Andersons affidavit
Anderson avers that prior to his arrest he did not know Hincapie, although he
had heard of him from friends. See Anderson Affidavit 5. He states that he did not
see Hincapie at the crime scene during the crime or afterwards, that Hincapie did not
take part in the planning of the robbery or know about the crime. See id. 6.
Anderson further avers that as others left the 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. See id. 7. As the robbery began, several other people who were not
part of the victims family and whom Anderson did not know were running around
the subway station. Id. 7.
At one point, Anderson ran between one staircase and another and had the
opportunity to observe who was on the platform during the robbery. Id. 7. He
avers that during this observation period, he did not see Hincapie. See id. He further

-22-
avers that Hincapie was not with Anderson or the others when they left the station.
Only when arriving at Roseland did he see Hincapie, who was in line with some girls.
See id.
ARGUMENT
POINT I
HINCAPIES NEWLY DISCOVERED EVIDENCE
CLAIM PURSUANT TO CPL 440.10(1)(g) FAILS
BECAUSE NONE OF THE EVIDENCE THAT
HINCAPIE PROFFERS IS NEWLY DISCOVERED,
NOR WOULD IT PROBABLY CHANGE THE
RESULT IF A NEW TRIAL IS ORDERED.
A party seeking to vacate a conviction on the grounds of newly discovered
evidence bears a heavy burden. The party must establish that the evidence
(1) will probably change the result if a new trial is granted; (2) is
discovered since the previous trial; (3) was not discoverable before the
trial by the exercise of due diligence; (4) is material to an issue at
defendant's trial; (5) is not cumulative; and (6) is not merely
impeachment testimony.


People v. Reyes, 255 A.D.2d 261, 263 (1st Dept. 1998) (citing People v. Salemi, 309 N.Y.
208, 215-216 (1955)); People v. Gurley, 197 AD2d 534, 535 (2d Dept. 1993); CPL
440.10(1)(g)).
Hincapie fails to establish three of these requirements. First, some of the
evidence that he proffers was not discovered since the previous trial. To the
contrary, he knew about it before the trial. Second, even if some of the evidence was
not known to Hincapie before his trial, it could certainly have been discovered by him

-23-
before the trial had he exercised due diligence. Third, the evidence even if it were
newly discovered, and even if it could not have been discovered before the trial with
the exercise of due diligence still fails to satisfy CPL 440.10(1)(g) because there is
no reasonable probability that it would change the result of a new trial: The evidence
proffered by Hincapie is either not material or demonstrably false.
A. Hincapies Alibi Claim Does Not Satisfy The Requirements Of CPL
440.10(1)(g)
1. The Alibi Information In Hincapies Affidavit Was Not Discovered Since the
Previous Trial Because It Was Known To Hincapie Before Trial.
The requirement that evidence was neither discovered nor reasonably
discoverable before the defendants trial prevents defendants from getting an
unwarranted second bite at the apple, and thus protects the finality of jury verdicts.
Hincapies affidavit fails this most basic test. It is his own testimony. He has
been aware of it for 23 years. We are aware of no case and Hincapie has pointed to
none in which claims of coercion or alibi are raised for the first time in a post-
conviction motion in which the allegedly newly discovered evidence is the defendants
own statement. Indeed, the case law is decidedly to the contrary. See, e.g., People v.
Knowles, 12 A.D.3d 939, 940 (3d Dept. 2004) (denying defendants newly discovered
evidence claim based on alleged Payton violation where defendant was surely aware of
the circumstances surrounding his arrest such that evidence adduced during the grand
jury proceedings on this issue did not constitute additional, pertinent facts); People v.
Williams, 292 A.D.2d 292 (1st Dept. 2002) (The record establishes that this evidence,

-24-
concerning defendants own background, was not newly discovered in that it was
known to defendant himself before the commencement of trial.).
4

2. The Alibi Information In Monteros Affidavit Was Discoverable Before Hincapies
Trial By The Exercise Of Due Diligence.
In analyzing whether the information in Monteros affidavit is newly
discovered, two facts are critical and incontrovertible. First, from his initial statement
to the police upon his arrest, Montero consistently maintained that he was on the
turnstile level rather than the subway platform level during the crime. See Additional
Statements, PR Ex 5, at 9-12; Hearing Transcript, PR Ex 10, Casey: H290-92, 453-
55; C. Gonzalez: H976-80, 1107-10; Clark: H2004-10, 2014-19, 2045, 2052, 2064;
Rosario: H1454, 1457-62, 1476-77.
Second, months before his trial, Hincapie knew that Montero maintained that
he (Montero) was on the turnstile level. Prior to his trial, Hincapie received (a) the
Voluntary Disclosure Form (VDF), which included each of his co-defendants
written and videotaped statements, and (b) a detailed summary of his co-defendants
oral, non-videotaped, statements, in a disclosure referred to as the Additional
Statements. Montero had made oral statements, and the Additional Statements

4
Because the alibi information was known to Hincapie before his trial it is plainly
not newly discovered and fails to satisfy CPL 440.10(1)(g). See supra. For the same reason,
Hincapie could have raised the alibi claim in either of his earlier 440 motions, and his failure
to do so further supports denial of his claim. See CPL 440.10(3)(c) (court may deny a
motion to vacate a judgment where [u]pon a previous [440] motion, the defendant was in a
position adequately to raise the ground or issue underlying the present motion, but did not
do so.).

-25-
document included Monteros representations that he was on the turnstile level. See
Schiels Affirmation, PR Ex 1, at 9-10; Additional Statements, PR Ex 5, at 9-12.
And, Hincapie attended the suppression hearing at which, again, each of the
defendants statements, including Monteros, was recounted. See Hearing Transcript,
PR Ex 10, Casey: H290-92, 453-55; C. Gonzalez: H976-80, 1107-10; Clark: H2004-10,
2014-19, 2045, 2052, 2064; Rosario: H1454, 1457-62, 1476-77. The only part of
Monteros statement that was not known to Hincapie prior to his trial is Monteros
sudden averment that Hincapie was also on the turnstile level. See Montero Affidavit,
DM Ex C, at 11-23. There is overwhelming reason to disbelieve that averment, see
infra, but even leaving that aside, the averment could certainly have been discovered
by Hincapie prior to trial with the exercise of due diligence. In fact, if that new
averment were true, then Hincapie knew it all along.
The case of People v. Rodriguez, 193 A.D.2d 363 (1st Dept. 1993), is on point. In
that case, the defendant was convicted of a narcotics transaction, and challenged it
pursuant to CPL 440.10(1)(g) on the grounds of newly discovered evidence. The
evidence that was purportedly newly discovered was an eyewitness to the transaction
who testified that she, not the defendant, had engaged in the transaction that formed
the basis for the conviction. The trial court granted defendants motion, but the
Appellate Division reversed on the grounds that the evidence did not meet the
requisite standard of certainty that it would probably have changed the trials result.

-26-
See 193 A.D.2d at 366. Moreover, the Court held, it was not newly discovered,
because it could have been discovered pre-trial with the exercise of due diligence:
[I]t appears from the testimony that the defendant and [the eyewitness]
knew each other from the neighborhood, lived in close proximity to
each other and had mutual acquaintances. Given these facts, defendant
failed to establish the requisite due diligence by merely looking about the
streets in his spare time. . . . No diligent effort was made to canvass the
neighborhood, hire investigators, or interview known acquaintances
concerning [the eyewitnesss] whereabouts.

Id.
This case is a fortiori of Rodriguez. In Rodriguez, a defendant who allegedly did
not even know what the eyewitness might say was held not to have exhibited the
requisite due diligence because he did not canvass the neighborhood, hire
investigators, or interview known acquaintances concerning [the eyewitnesss]
whereabouts. In this case, Hincapie knew exactly what Montero would say.
5
It
cannot be said that Hincapie acted with due diligence. See also, People v. Mota, 36
A.D.3d 433 (1st Dept. 2007) (defendant did not show that his alleged new witness
could not have been produced at the first trial with due diligence); People v. Singleton, 1
A.D.3d 1020, 1021 (4th Dept. 2003) (transcript of accomplices plea proceeding was
not newly discovered evidence where [d]efendant was aware that the accomplice had

5
Notably, although Hincapie in his affidavit describes the person he spoke with at
the turnstile level only as someone sitting on a bench, and further claims that he did not
remember that Luis Montero was one of the people he spoke with, he told Probation
Officer Erickson that he had known Montero for approximately one year before the crime.
Hincapie Aff. 12, 50. See Presentence Report, PR Ex 3, Summary of Offenders
Statement, at 10.

-27-
pleaded guilty and, indeed, defendant had obtained the transcript of another
accomplices plea proceeding prior to trial); People v. Taylor, 246 A.D.2d 410, 411-12
(1st Dept. 1998) (post-trial affidavit by co-defendant that exculpated defendant was
not newly discovered because the substance of the statement that defendant and co-
defendant did not know each other was known to both from the very moment
they were arrested).
3. The Alibi Information In Andersons Affidavit Was Not Discovered Since the
Previous Trial. It Was Known To Hincapie Before Trial.
Anderson told the police and the prosecutor that he participated in the robbery
on the platform level of the subway station, and he named five accomplices, but
Hincapie was not one of those persons named. See Additional Statements, PR Ex
5, at 1-3; Anthony Andersons Written Statement, PR Ex 22; Anthony Andersons
Videotaped Statement, PR Ex 23. Andersons statements would have alerted
Hincapie that Anderson could testify that Hincapie did not participate in the robbery
and in fact was not present on the platform level, and thereby support Hincapies alibi
claim.
4. Hincapies Extraordinary Delay In Asserting His Alibi Undermines Its Credibility
Hincapies remarkable delay in making the allegations in his current motion
casts severe doubt on their validity. See People v. Ross, 2009 N.Y. Misc. LEXIS 4533 at
*8 (Sup Ct., Kings Co. 2009) (defendants long delay in bringing a motion to vacate
pursuant to CPL 440.10(1)(g) is a significant factor to be considered in determining

-28-
how valid the assertions are) (quoting People v. Nixon, 21 N.Y.2d 338, 352 (1967)). See
also People v. Melio, 304 A.D.2d 247, 252 (2d Dept. 2003) (defendants claim that he
would not have pleaded guilty had he been aware of post-release supervision would
be undermined by any [d]elay on his part, after learning of such supervision, in
moving to vacate his plea on those grounds); People v. Hanley, 255 A.D.2d 837, 838 (3d
Dept. 1998) (defendants claim, raised for the first time three years after pleading
guilty, that alleged prison abuse had coerced his plea, was undermined by the fact
that defendant delayed for such a substantial period of time before moving to vacate
the judgment).
Hincapie explains his more than two decade delay by alleging that he did not
remember that Montero was the person sitting on the bench on the subway stations
turnstile level and that he never knew that Anthony Anderson remembered whether
or not [he] was present at the mugging. See Hincapie Affidavit, DM Ex B, at 48,
50. But through pre-trial discovery, Hincapie had Monteros and Andersons
statements, see Schiels Affirmation, PR Ex 1, 9-10; Voluntary Disclosure Form, PR
Ex 4; Anthony Andersons Written Statement, PR Ex 22; Anthony Andersons
Videotaped Statement, PR Ex 23; Additional Statements, PR Ex 5, at 1-3, 9-12,
and the contents of those statements were repeated in the testimony at the
suppression hearing. See Hearing Transcript, PR Ex 10, Casey: H290-92, 453-55
[Monteros statements], H258-60, 263-73, 412-413, 443 [Andersons statements]; C.

-29-
Gonzalez: H976-80, 1107-10 [Monteros statements], H947-48, 952-63, 966, 1080-89,
1097, 1191 [Andersons statements]; Clark: H2004-10, 2014-19, 2045, 2052, 2064
[Monteros statements]; Rosario: H1454, 1457-62, 1476-77 [Monteros statements];
Peoples Brief for Suppression Motions, PR Ex 14, at 7-12. In addition, Hincapie told
the probation officer who conducted the pre-sentence investigation that he had
known Montero for approximately one year before the crime. See Presentence
Report, PR Ex 3, Summary of Offenders Statement, at 10. The weakness of
Hincapies explanation for not advancing his alibi claim sooner reflects both that
Hincapie did not pursue it with any appreciable diligence and that the claim lacks
merit. See People v. DeGondea, 3 A.D.3d 148, 160 (1st Dept. 2003).
5. The Information In Hincapies, Monteros, And Andersons Affidavits Would Not
Probably Change The Result If A New Trial Is Ordered
Even if the alibi information in the three affidavits on which Hincapie relies
were newly discovered and incapable of being discovered through the exercise of
reasonable diligence, his motion pursuant to CPL 440.10(1)(g) would still lack merit
because that information would not change the result of a new trial. The reason is
simple: Most of the information is demonstrably false, and the rest is not material.
a. The Alibi Allegations In Hincapies Affidavit Are Demonstrably False
Hincapies statement about his whereabouts during the crime are contradicted
by the overwhelming weight of the evidence.

-30-
First, Hincapies alibi is contradicted by his oral, written, and videotaped
confessions, all made shortly after his arrest, which placed him at the scene of the
crime. The constitutionality of those statements was extensively litigated and it was
determined by every court considering the matter that they were constitutional in all
respects. See supra.
Second, Hincapies statement to the Probation Officer did not make any
reference to his lingering on the turnstile level or to being on the escalator when the
crime was taking place. To the contrary, he told her that he went with the other
robbers to the platform where the crime took place. See supra. He also expressed
remorse, and that if he could he would apologize to the family. Hincapie never
addresses this statement in his motion.
6

Third, Hincapies affidavit is contradicted by the affidavit of Anthony Nichols.
Hincapies alibi claim is that he re-entered the subway station to find Nichols and

6
Hincapie may argue that his statement to the Probation Officer was the product of
an uncounseled or inherently coercive interview, but that argument is foreclosed by People v.
Cortijo, 291 A.D.2d 352, 352 (1st Dept. 2002) (a presentence interview does not constitute a
stage of the proceedings at which the right to counsel attaches, and a probation officer is
not acting in the role of a criminal investigator when eliciting background information of the
type needed for a presentence report). See also People v. Perry, 36 N.Y.2d 114, 120 (1975)
(presentence reports are not compiled in an adversarial context); United States v. Cortes, 922
F.2d 123, 126 (2nd Cir. 1990) (probation officers serve as neutral information gatherers for
the sentencing judge and need not give Miranda warnings before conducting a routine
presentence interview). He may further argue that he made the admission only because he
had to, in order to show remorse and acceptance of responsibility in anticipation of his
sentencing. 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.

-31-
retrieve money he had given to Nichols to hold, and that when he heard screaming
and saw people running, he fled from the station, met up with Nichols on the street,
and began to talk about how we had been looking for each other, and we walked
together to Roseland. Hincapie Affidavit, DM Ex B, at 15. But that claim is
contradicted by Nichols himself, in an affidavit submitted with the Peoples Response.
See Nichols Affidavit, PR Ex 2. In the affidavit, Nichols unequivocally denies the
allegations in Hincapies affidavit that Hincapie gave him money to hold, and that,
after arriving in Manhattan, he met Hincapie on the street and walked to Roseland
with him. See Nichols Affidavit, PR Ex 2, at 3 [second page].
7
To the contrary, as
Nichols walked to Roseland, he saw Hincapie running from the direction of the
subway with others who were ultimately charged with the robbery and murder.
Nichols Affidavit, PR Ex 2, at 3 [second page]. Nichols is a responsible, law-
abiding citizen, with a family and a career. Unlike Hincapie, Nichols has no stake in
the outcome of Hincapies motion, and no reason to be untruthful.
Fourth, at Hincapies sentencing proceeding, his attorney, David Richman,
acknowledged as Hincapie had in his confessions and in his statement to the
Probation Officer that Hincapie had been on the subway platform, with the other

7
Nichols affidavit is mis-numbered. It begins with paragraphs 1 through 4, but
then, on the second page, what should be paragraph 5 is mis-numbered 3, and, on the
third page what should be paragraph 6 is mis-numbered 4. Reference here is to the
paragraph on the second page which should be 5 but is mis-numbered 3, in which
Nichols gives a narrative of events on the night of the crime.

-32-
robbers, during the crime, and that he had dragged Karen Watkins. He argued for
leniency, however, because, he contended, Hincapie had been a relatively minor
participant in the crime, involved more through happenstance than careful planning.
Richmans argument is yet another admission made by Hincapies authorized agent,
in Hincapies presence and without objection by Hincapie that Hincapie was a
participant in the crime. See, e.g., People v. Brown, 98 N.Y.2d 226, 232 (2002) (attorneys
statement in open court at Sandoval hearing is a statement by the defendants
authorized agent within the scope of his agency, and thus an admission of the
defendant); People v. Ortiz, 114 A.D.3d 430, 430-31 (1st Dept. 2014) (same with respect
to attorneys remarks at arraignment); 4 Wigmore Evidence [Chadbourne ed.] Sec 1078 at
179; Richardson on Evidence [11th ed.] Sec 8-208 at 518.
Fifth, when he petitioned the District Attorneys Office in 2007, Hincapie again
asserted that he was on the platform with the other robbers but not truly involved in
the crime, or only incidentally and minimally involved. Shevitzs letter, quoted above,
characterized his videotaped confession as making out a mere presence defense,
and re-affirmed that is what Mr. Hincapie maintains is what happened. That
assertion is consistent with what Hincapie had said to the Probation Officer, and,
through his attorney, at his own sentencing. There was still not a whisper about any
alibi.




-33-
b. The Alibi Allegations In Monteros Affidavit Are Demonstrably False
Monteros affidavit is an artful mixture of fact and fiction, and insofar as it
pertains to Hincapie it is demonstrably fiction.
(i) Monteros allegations are inconsistent with his prior statements
From the date of his arrest, Montero has consistently maintained that he was
on the turnstile level, not the platform where the crime took place. Thus, Montero
made a statement to the police in 1990, a statement to the investigating ADA in 1992,
and statements to his lawyer, notes of which were turned over to the ADA in 1992.
See Additional Statements, PR Ex 5, at 9-12; Hearing Transcript, PR Ex 10, Casey:
H290-92, 453-55; C. Gonzalez: H976-80, 1107-10; Clark: H2004-10, 2014-19, 2045,
2052, 2064; Rosario: H1454, 1457-62, 1476-77; Peoples Brief for Suppression
Motions, PR Ex 14, at 10-12; Schiels Affirmation, PR Ex 1, at 11-14;
Recommendation for Dismissal re Montero, PR Ex 7 [un-redacted version], DM Ex
D [redacted version, at 3-4; Notes of Attorney George Goltzer, PR Ex 8. All of
these statements included detailed accounts of Monteros behavior on the turnstile
level, and of the people he saw there and those with whom he spoke. Based on
Monteros statements and the other evidence that the ADA reviewed, Monteros
presence on the turnstile level was sufficiently demonstrated that the District
Attorneys Office recommended the dismissal of his indictment in 1992.
None of Monteros prior statements indicated that Hincapie was present with
Montero on the turnstile level. Montero knew Hincapie (see Montero Affidavit, DM

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Ex C, at 8); see also Presentence Report, PR Ex 3, Summary of Offenders
Statement, at 10 [Hincapie stated that he had known Montero for approximately
one year]), and Montero had every incentive to name every witness who could
support his presence on the turnstile level. In his statements to his attorney and the
prosecutor, Montero even described seeing two girls whom he did not know but with
whom he flirted in the station. It is simply inconceivable that Montero spoke with
Hincapie on the turnstile level -- especially that he spoke with him as much as he
contends he did in his affidavit -- and did not report that fact to his lawyer, or to the
prosecutor investigating his alibi, or to the police.
Hincapie might contend that Montero did not mention that Hincapie was on
the turnstile level because Montero thought that Hincapie, being indicted, could not
help Montero establish his alibi. There is no averment to that effect, and so the
contention fails on that score. See CPL 440.30(1) (sworn allegations are necessary to
establish any fact in a 440.10 motion to vacate). And the contention makes no
sense: Monteros lawyer would have encouraged Montero to name anyone who could
say that Montero was on the turnstile level during the crime, and he would also have
understood and advised Montero that if one of the potential alibi witnesses was a
suspect or indicted defendant, it might be possible to present a joint alibi defense.
Furthermore, the prosecutor, by investigating Monteros alibi claim and interviewing
him and other witnesses about it, had demonstrated to Montero that he would
consider evidence from whatever source to determine whether the alibi claim was

-35-
true. Thus, had Hincapie actually been present, as Montero now alleges, Montero had
every reason to say so. He did not, and his silence damns his new averment.
(ii) Monteros account is inconsistent with the facts adduced at trial
The untruthful nature of Monteros allegations is established by the trial record.
At the trial, members of the Watkins family testified that they were standing on the
turnstile level purchasing tokens for the subway when they saw a group of young
men, whom they later identified as their assailants, enter the subway station, pass
through the exit gate illegally and descend toward the platform level. The Watkins
family followed them, paying their fares, going through the turnstiles and descending
to the subway platform. See Trial Transcript, PR Ex 10, S. Watkins: T184-92; 217-30,
238, 242-45; K. Watkins: T244-285, 318-24, 337, 344, 361-62; M. Watkins: T469-76,
499-501, 504-05, 509-10, 520; T. Watkins: T535-41, 561-65, 577, 580. Karen Watkins
and Michelle Watkins testified that only a few minutes passed between the time they
observed the group of robbers illegally enter the subway and the time that the group
attacked the Watkins family. See Trial Transcript, PR Ex 10, K. Watkins: T361-62; M.
Watkins: T477-523.
8


8
Karen Watkins testified that the family remained on the turnstile level buying tokens
for about one to two minutes after she observed the group of robbers enter the subway
illegally, and that the family was on the platform waiting for a train for about three to four
minutes prior to the attack. Michelle Watkins testified that it was about five minutes
from the time she observed the group of robbers enter the subway illegally until the attack
commenced. In addition, Sherwin Watkins testified that the family was on the platform
waiting for a train for only a couple of minutes before he and Michelle noticed the group
of robbers hiding behind the staircase and then the robbers ran at them. See Trial Transcript,
(Continued)

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Montero has never claimed, and does not claim now, that he saw the robbers
re-enter the station and go through the turnstile barrier. He also never claimed, and
does not claim now, that he saw the Watkins family on the turnstile level. Since
Montero attempted to recount every circumstance of his time on the turnstile
platform, the fair inference is that he entered the subway station after the robbers did,
and after the Watkins family had descended to the subway platform level. That means
that the total time Montero was on the turnstile level bench before hearing the
screams from below was no more than a few minutes.

All of Monteros prior
statements were consistent with this time frame.
The events that Montero now claims to have witnessed on the turnstile level,
including seeing and interacting with Hincapie, would have taken considerably more
time. Monteros affidavit alleges that he sat on a bench on the turnstile level for a
few minutes before a skinny guy came in the station from outside and asked
Montero about where some guy was, then left. Montero further alleges that, a
little while after that he saw Hincapie come into the station from outside. He
alleges that he and Hincapie then talked for a few minutes. He alleges that
Hincapie then went outside again and that a short time later Hincapie returned.
______________________
(Continued)
PR Ex 10, S. Watkins: T192-93. Karen Watkins also testified that after the group of robbers
entered the subway illegally, she did not see any other person enter illegally, as Montero
describes he did, by jumping the turnstile, see Montero Affidavit, DM Ex C, at 11.
Likewise, no other member of the Watkins family testified to seeing a lone person enter the
subway illegally after the group of robbers had entered.

-37-
He alleges that he and Hincapie then were both talking about a couple of girls that
were standing a few feet away, and that they were checking them out and made
comments to each other about how they looked. He alleges that after the girls left
Hincapie went to the escalator, which was turned off, and walked down the escalator
staircase toward the platform level, and Montero then began to hear screaming from
the platform level. See Montero Affidavit, DM Ex C, at 11-17.
Obviously, Montero, in his current affidavit, has sought to expand the time he
was sitting on the turnstile-level bench to include this new account of seeing and
interacting with Hincapie there. But this new account is impossible in light of the
much shorter time frame established by the trial testimony of Karen and Michelle
Watkins, as well as by Monteros own prior statements and his current affidavits
allegations about when he re-entered the subway station.
(iii) Montero is biased in favor of Hincapie
Many courts have observed that a co-defendants recantation of an accusatory
statement many years after the trial, or a similarly belated exculpatory statement, is of
little probative value. See People v. Shilitano, 218 N.Y. 161, 170 (1916) (There is no
form of proof so unreliable as recanting testimony.); United States v. DiPaolo, 835 F.2d
46, 49 (2d Cir. 1987) (recantations must be regarded with the utmost suspicion
(internal quotation omitted)); see also, People v. Suarez, 98 A.D.2d 678 (1st Dept. 1983)
(especially suspect is the belated exculpation of defendant by an individual after he
has nothing to lose); People v. Huggins, 144 Misc.2d 49, 55 (Sup. Ct. NY Co. 1989)

-38-
(newly discovered evidence in the form of statements from other defendants charged
in the same case are highly suspect: the once unavailable defendant who now seeks
to exculpate his codefendant lacks credibility since he has nothing to lose by testifying
untruthfully regarding the alleged innocence of the defendant seeking a retrial).
Montero, whose own case was resolved long ago, has nothing to lose in helping
Hincapie now with his belated exculpatory statement; in fact, he has a particular
motive to support the instant motion, which disparages the work and reputations of
the law enforcement personnel and the court involved in this case. Montero was
under indictment for nearly two years in connection with this case before the charges
against him were dismissed, and he was incarcerated for a substantial period. He
alleges in his affidavit that his arrest, his treatment by the police, his indictment, and
his incarceration had serious adverse consequences for his safety, reputation,
immigration status, and mental well-being. See Montero Affidavit, DM Ex C, at
55-65.
Hincapies lawyer has communicated with Montero, and has stated to us,
apparently on Monteros behalf, that Montero will not speak with the ADA
investigating this case. See ADA Hurley Affirmation, at 38-39. This Office has
tried but been unable to contact Montero. See id. A truly disinterested witness would
surely be willing to speak with either side. Anthony Nichols, for example, made
himself available to both sides. See Nichols Affidavit, PR Ex 2, at 4 [first page].


-39-
c. The Alibi Allegations In Andersons Affidavit Are Unreliable And, In Any Event, Not
Material
Anderson alleges in his affidavit that he did not see Hincapie on the subway
platform during the crime. See Anderson Affidavit, DM Ex E, at 6. That Anderson
did not see Hincapie is immaterial. In the first place, Anderson admits that he did not
know Hincapie at the time of the crime (see Anderson Affidavit, DM Ex E, at 5), so
it is entirely possible that he did see Hincapie but did not know who Hincapie was.
Indeed, Anderson admits that there were people on the platform that he did not
know. See id. at 7. Furthermore, the evidence at trial established that the robbery
was an uncoordinated, wild affair, more a melee than a carefully calibrated operation.
See Peoples Brief for Hincapies Appeal, PR Ex 21, The Evidence At Trial, at 38-41
[providing relevant testimony of multiple witnesses regarding the crime]. Anderson
was in the middle of it all, while Hincapie was on the periphery. See Trial Transcript,
PR Ex 10, S. Watkins: T198-203 [describing Anderson holding him down, and
identifying Andersons distinctive beaded necklace and shirt, Peoples Exhibits 7 and
8]; Peoples Brief for Suppression Motions, PR Ex 14, at 7-10 [detailing hearing
evidence of Andersons statements to the police]; Confession Transcript of Johnny
Hincapie, DM Exh J, at 13-14, 16, 20, 22-24. For Anderson to say that he did not see
Hincapie does not establish that Hincapie was not present.
Moreover, to the extent that his affidavit provides anything new or material,
Andersons motivation in coming forward many years after his own case was resolved,

-40-
in an attempt to exculpate a co-defendant, is inherently suspect. See People v. Monroe,
40 N.Y.2d 1096, 1098 (1977); People v. Huggins, supra, 144 Misc.2d at 56.
B. Hincapies Coerced-Confession Claim Does Not Satisfy The Requirements
Of CPL 440.10(1)(g)
Hincapie proffers two pieces of evidence purportedly in support of the
proposition that he was coerced into giving a false confession by Detective Casey --
his own affidavit and that of Montero. Hincapies coercion claim fails to satisfy CPL
440.10(1)(g) because the facts alleged in its support are not newly discovered, and
they are facially incredible.
1. Hincapies Affidavit
Hincapie knew whether he was coerced; if he were, it would not have taken
him 23 years to say so. Not one defendant claimed at the suppression hearing or at
trial that his statements were coerced by physical abuse or threats of the same. See
Peoples Brief for Suppression Motions, PR Ex 14. Once again, the delay in making
the allegation, in light of the circumstances, undermines its credibility. See People v.
Nixon, supra, 21 N.Y.2d at 352; People v. Ross, supra, 2009 N.Y. Misc. LEXIS 4533 at *8;
People v. Melio, supra, 304 A.D.2d at 252; People v. Hanley, supra, 255 A.D.2d at 838.
And, once again, the allegation is contradicted by the weight of the evidence
that has long been on the record. Three detectives testified at the suppression
hearing, and the trial judge found their testimony to be credible and forthright. See
See Peoples Brief for Hincapies Appeal, PR Ex 21, the Evidence At The Hearing

-41-
Justice Torres Decision, at 33-35. The detectives testimony, as well as the Miranda
form and written statement executed by Hincapie, established that Detective Casey
was never alone with Hincapie, and there was not enough time for Hincapie to be
forced to memorize a false confession for 10 or 20 minutes, maybe more, but rather
that Hincapie was brought to the stationhouse at about 10:30 pm, and left in a room
for a few minutes before the detectives assembled there and began the interview of
Hincapie with the reading of Miranda warnings at 10:45 pm. See Hincapies Written
Statement and Miranda Form, PR Ex 6; Hearing Transcript, PR Ex 10, Casey: H309-
313, 472, 485, 488-90, 503, 505-06, 513, 517-19, 603, 605-06, 615; C. Gonzalez:
H1030-37, 1119-20, 1123-28, 1132-34, 1142-45, 1151; Christie: H1252-61, 1293-94,
1346-54, 1363-65; Trial Transcript, PR Ex 10, Casey: T696-706, 803, 835-45, 1086-91,
1131-34; C. Gonzalez: T1211-33, 1301-03, 1318-22, 1325-28, 1333-34, 1341-63, 1372,
1377, 1400-01; Christie: T1989-93, 2011-26, 2034-36, 2114-30, 2196-2207, 2218-19,
2255-58.
9
This refutes Hincapies contention, see Hincapie Affidavit, DM Ex B, at
23-32; Hincapie Brief at 19-20, 46, that he was left alone with Detective Casey,

9
Detective Christie testified that he and Detective Cospito brought Hincapie into the
Midtown North Detective Squad offices and placed him in a room that had bunk beds and
office equipment; then, while Cospito remained in the room, Christie left momentarily to get
Detectives Casey and Gonzalez; then the three of them entered the room together.
Detective Gonzalez testified that he, Christie, and Casey entered the room together and he
saw Cospito and Hincapie seated in the room. Detective Casey testified that when he
entered the room, Christie, Gonzalez, and Cospito were there and Christie was giving
Miranda warnings. See Hearing Transcript, PR Ex 10, Casey: H488-90; 605-606; C.
Gonzalez: H1031-32, 1132-34; Christie: 1351, 1363-65; Trial Transcript, PR Ex 10, Casey:
T697; Gonzalez T1211-12; Christie T1990-91.

-42-
physically abused and threatened, and then forced to memorize a false confession for
10 to 20 minutes, maybe more.
Hincapie contends that his behavior on the videotaped confession, in particular
his monosyllabic answers to a number of questions, somehow supports his contention
that the confession was untruthful. See Hincapie Brief at 20, 48-49. But it is obvious
from the videotape that the one word answers are prompted by the fact that the
questioner asked many leading questions. Indeed, Hincapies trial attorney during his
summation made the same observation about the leading questions producing one
word answers. See Trial Transcript, PR Ex 10, Richman Summation: T3189-91.
Hincapies answers on the videotape overall refute any suggestion that he was
reciting an inculpatory story that had been beaten into him, because at several points
he attempts to exculpate himself, or minimize his involvement. For example, he
insists that he was at the periphery of the group of robbers, that he did not see the
knife of the assailant who killed Brian Watkins well enough to describe it, that he
grabbed Karen Watkins impulsively, and that he disengaged from the robbery and
started to leave the platform before the others (see Confession Transcript of Johnny
Hincapie, DM Ex J, at 12-25). These statements rebut the notion that Hincapie was
simply repeating a false, coerced and memorized confession they show him trying to
defend himself.



-43-
2. Monteros Affidavit
To bolster his claim of coercion, Hincapie interposes a novel strategy: He
submits Monteros affidavit, which alleges that Montero was coerced. Hincapie
argues that if Montero was coerced, then so, necessarily, was Hincapie.
This 11th-hour syllogism cannot fly. Montero does not aver that he saw any
interaction between Hincapie and Detective Casey, much less any abuse or threats
toward Hincapie by Detective Casey. Nor does Montero allege that he saw where
Hincapie was kept in the stationhouse, or which detectives went in and out of the
Hincapie interview. His affidavit thus does nothing to support Hincapies claim of
coercion.
Montero did not allege coercion in his motion to suppress a remarkable and
damning omission. See Montero Brief for Suppression Motion, PR Ex 9.
10
His co-
defendants did not allege coercion either. See Peoples Brief for Suppression Motions,
PR Ex 14. And even now, Andersons affidavit makes no mention of any coercion.
See Anderson Affidavit, passim. Their silence gives the lie to any argument Hincapie

10
In his brief, Montero challenged his statements on the grounds that they were the
fruit of an unlawful arrest and were obtained in violation of his right to silence and right to
counsel. He made no assertion of physical abuse. Montero alleges in his current affidavit
that he received a $30,000 award in a lawsuit he brought based upon his experiences in this
case. The suggestion is that this was compensation for wrongful arrest or police abuse.
However, Montero does not state what his lawsuit was about, who it was against, or what
the award represents.

-44-
might have that the detectives engaged in a pattern of coercion with respect to this
case.
C. Hincapies Failure To Assert An Ineffective Assistance Of Counsel Claim
Or To Waive His Attorney-Client Privilege With His Trial Counsel
Demonstrate The Falsity Of His Alibi And Coercion Allegations
It is not only the weakness of the evidence that dooms Hincapies claim, but
also the gaping hole in what he has chosen to assert.
Hincapie never alleges that his lawyer, David Richman, was ineffective. If
Hincapie had been coerced into giving a false confession, and if he had been on the
turnstile level rather than the subway platform when the crime was unfolding, and if
Montero and Nichols could have been alibi witnesses then surely Hincapie would
have given that information to his lawyer, who would have used it in discussions with
the prosecutor (as Monteros lawyer did), or at the suppression hearing, trial, or
sentencing. Yet, Richman did none of that. The only fair inference is that Hincapie
never gave that information to his counsel because it is simply not true.
Hincapie states in his brief not his affidavit that he was advised not to
testify by his attorney at the suppression hearing. See Hincapie Brief, at 46. This
statement may be meant to suggest that Hincapie told the attorney about the alleged
alibi and alleged coercion, but the brief does not say he did, nor does Hincapie allege
that in his affidavit. But a statement in a brief is not evidence. Hincapies motion
must rest on sworn allegations, not a lawyers unsworn representations. See CPL
440.30(1) (If the motion is based on upon the existence or occurrence of facts, the

-45-
motion papers must contain sworn allegations thereof, whether by the defendant or
by another person or persons.); CPL 440.30(4)(b) (the court may summarily deny
the motion if it is based upon the existence or occurrence of facts and the moving
papers do not contain sworn allegations substantiating or tending to substantiate all
the essential facts); People v. Ozuna, 7 N.Y.2d 913, 913 (2006) (absence of sworn
allegations of fact warrants discretionary denial of 440.10 motion); People v. Leivi, 59
A.D.3d 161 (1st Dept. 2009) (440.10 motion properly denied where ineffective
assistance claim not supported by sworn affidavits regarding attorneys strategic
decisions); People v. Jones, 101 A.D.3d 1482 (3d Dept. 2012) (440.10 motion properly
denied where ineffective assistance claim not supported by sworn allegations).
Hincapie has expressly declined to waive his attorney-client privilege with
Richman. By making representations albeit unsworn about what he told his
attorney, Hincapie is attempting unfairly and unlawfully to use the privilege as a
sword and a shield, which he is not permitted to do.
11


11
Hincapie relies on Richmans purported advice to forgo any claim of coercion at
the suppression hearing and at trial in an effort to explain his 23-year delay in raising the
claim. But Hincapie cannot selectively disclose snippets of trial counsels advice and, at the
same time, assert that his communications with counsel are protected by the attorney-client
privilege. See United States v. Bilzerian, 926 F.2d 1285, 1291-94 (2d Cir. 1991) (finding that,
where a criminal defendant wished to testify at trial regarding his alleged good-faith belief
that he had complied with securities laws, he could not also use the attorney-client privilege
as a shield and a sword by preventing cross-examination on the basis of that belief,
including any communications he had with his attorney on this subject); see also Am. Re-Ins.
Co. v. U.S. Fid. & Guar. Co., 40 A.D.3d 486, 492 (1st Dept. 2007) (noting that where a party
places privileged material at issue and has selectively disclosed the advice [of counsel], it is,
according to the principle that privilege is a shield and must not be used as a sword,
(Continued)

-46-
Any suggestion that Hincapie told Richman that he had an alibi or that he had
been physically coerced is simply not believable: Richman was an experienced defense
counsel, and it is not credible that he was told that Hincapie had an alibi and alibi
witnesses, and that his confession had been coerced, yet decided not to use that
evidence. If that had happened, Hincapies current capable counsel would bring a
claim of ineffective assistance of counsel on Hincapies behalf. There is no such
claim.
POINT II
HINCAPIES ACTUAL INNOCENCE CLAIM FAILS
AS A MATTER OF LAW BECAUSE A CLAIM OF
ACTUAL INNOCENCE REQUIRES CLEAR AND
CONVINCING EVIDENCE, AND HINCAPIES
EVIDENCE DOES NOT MEET THAT STANDARD.
In People v. Hamilton, 115 A.D.3d 12 (2d Dept. 2014), the Appellate Division,
Second Department, held that New York recognizes a claim of post-conviction actual
innocence. As there is no holding on the point in the First Department, the Second
Departments holding binds this Court. See People v. Turner, 5 N.Y.3d 476 (2005);
Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663 (2nd Dept. 1984).
12

______________________
(Continued)
deemed to have waived the privilege). At the very least, this Court should decline to
consider Hincapies avowal about what Richman supposedly told him.
12
Notably, the United States Supreme Court has repeatedly declined to adopt a free-
standing claim of actual innocence under the federal constitution. See Herrera v. Collins, 506
U.S. 390 (1993). See McQuiggin v. Perkins, 133 S.Ct. 1924 (2013)(We have not resolved
whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual
(Continued)

-47-
Hamilton arose out of a second degree murder conviction. The murder had
taken place on a Brooklyn street, and the defendant alleged that he had been in New
Haven, Connecticut at the time of the crime. The defendant identified two witnesses
in his notice of alibi. He was unable to present the witnesses, however, because one
was too ill to testify and the other was too frightened. People v. Hamilton, 115 A.D.3d
at 16. Following the verdict but before sentencing, the defendant moved to set aside
the verdict, contending that (i) he had found a new alibi witness, (ii) he had learned
that the key witness against him had initially told the police that she had not witnessed
the crime, and (iii) that the same witness recanted her trial testimony. Id. The motion
was denied, as were subsequent motions made in the year following the conviction
identifying additional alibi witnesses who had not been located at the time of the trial,
the court finding that they could have been identified with due diligence. Id. at 16-17.
In his motion pursuant to CPL 440.10(1)(h), the defendant submitted several
______________________
(Continued)
innocence.); DAs Office v. Osborne, 557 U.S. 52, 71 (2009) (As a fallback, Osborne also
obliquely relies on an asserted federal constitutional right to be released upon proof of
actual innocence. Whether such a federal right exists is an open question.). The Appellate
Division, Second Department, is the only appellate court in New York to recognize a free-
standing claim of actual innocence. Of course, the Second Departments decision in
Hamilton does not constrain any of the other Departments of the Appellate Division, and the
First Department will be free to arrive at a different conclusion from the one reached in
Hamilton when that Court has occasion to address the issue. See People v. Turner, 5 N.Y.3d
476 (2005); Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663 (2nd Dept. 1984).
Therefore, although the People recognize that this Court is bound by the decision in
Hamilton, we reserve the right, should we see fit, to argue that a free-standing actual
innocence claim is not cognizable in New York if that issue is raised on any future appeal.

-48-
additional affidavits of alibi witnesses who placed the defendant at a party in New
Haven when the crime was taking place in Brooklyn. Id. at 17-18.
Under the particular and extraordinary facts before it, the Second Department
held that a free-standing claim of actual innocence may be addressed pursuant to
CPL 440.10(1)(h). Id. at 25. The Court cautioned, however, that the burden for
asserting such claims was extremely high. Mere doubt as to the defendants guilt or a
preponderance of the conflicting evidence as to the defendants guilt, is insufficient,
since a convicted defendant no longer enjoys the presumption of innocence, and in
fact is presumed to be guilty. Id. at 27. Thus, the Court held, claims of actual
innocence may be granted only if there is clear and convincing evidence that the
defendant is innocent. Id. at 26-27 (citations omitted).
Hincapies evidence does not meet this standard. With respect to both his alibi
and coercion claims, as demonstrated in Point I, almost all of Hincapies evidence is
discredited, both by the fact that it is asserted for the first time even though Hincapie
had every incentive and opportunity to assert it at the time of trial, and because it is
contradicted by overwhelming, credible evidence. To prevail on this portion of his
motion, Hincapie would have to meet the clear and convincing standard, and he
does not do so here.
Hamilton is vastly different from this case. In Hamilton, the defendant had
consistently claimed that he was in New Haven while the crime was taking place in
Brooklyn. He had identified witnesses who would testify to that effect, but was

-49-
effectively prevented from making that showing at trial. He then persistently pursued
his claim of innocence and the underlying factual defense of alibi for years through
multiple post-judgment proceedings, prior to his successful appeal to the Second
Department. Hamilton observes, as do the opinions in all of the United States
Supreme Court cases and New York lower court cases it cites, that such early and
persistent assertion of a claim of innocence and an underlying factual defense must be
considered a critical factor in determining whether a claim of actual innocence is bona
fide and should be granted. Here, however, Hincapies alibi and coercion claims are
entirely new, and inconsistent with statements that he has previously given.

POINT III
LOPEZS STATEMENT FAILS TO SUPPORT
HINCAPIES MOTION OR PROVIDE GROUNDS
FOR AN EVIDENTIARY HEARING.
Hincapie also relies on the statement of Lopez in his videotaped confession
that Johnny and Kevin left before the robbery, see Hincapie Brief at 38-39, but the
statement is not strongly exculpatory of Hincapie.
Lopezs confession is vague he does not say when Johnny and Kevin left,
or where they were when they left and without foundation, for he never says how
he knew that they had left. Did he see them leave, or hear that they had left? Did
Lopez simply infer they left from the fact that he did not see them after a certain
point? Lopez was confronted with large groups of people moving from place to place

-50-
and rapidly unfolding events that ended in a scene described by Lopez himself as
"chaos." See Hearing Transcript, PR Ex 10, Swenson: H1759). Even assuming that
Lopez intended to tell the truth, these circumstances explain how he could have been
mistaken about whether Hincapie had left. Lopez and Hincapie were friends, see
Videotaped Confession of Ricardo Lopez, DM Ex F; Transcript of Ricardo Lopezs
Videotaped Statement, PR Ex 26, at 7 [1-4] and so Lopez may be biased in Hincapies
favor. And, in the very statement on which Hincapie relies, Lopezs videotaped
confession, Lopez made several false statements, intending to shield himself from
culpability.
13

Lopezs confession is inconsistent with the confessions of three of Hincapie's
other accomplices, Nova, Carpenter, and Fernandez, each of which placed Hincapie
at the scene of the crime: they included Hincapie among the group who planned the
robbery, and they named him as one of the men who re-entered the subway to carry it
out. See Hearing Transcript, PR Ex 10, Borman: H677-678; Rosario: 1421-22 [Nova
interview and written statement, Hearing Exhibit #34]; Casey: H300-01, 562-64;
Gonzalez: H990-94, 1204-05, 1211, 1214-15 [Carpenters interview and written
statement, Hearing Exhibit #15]; Christie: 1234-36, 1241, 1281, 1283-84, 1289, 1299-
1301[Fernandez interview and written statement, Hearing Exhibit #55]; and see

13
The Peoples Brief for Hincapies Appeal, PR Ex 21, at 77-88, provides a thorough
analysis of Lopezs videotaped statement and the reasons for rejecting it as false and
unreliable, and also not a declaration against Lopezs penal interest. Those arguments are
incorporated here.

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Ricardo Novas Written Statements, PR Ex 25 [Hearing Exhibit #34]; Pascual
Carpenters Written Statements, PR Ex 26 [Hearing Exhibit #15]; Emiliano
Fernandezs Written Statement, PR Ex 27 [Hearing Exhibit #55]; DD5 Report by
Detective James Christie, dated Sept. 4, 1990, DM Ex G [naming Johnny Hincapie
as a perpetrator].
The federal district court ruled that Lopezs statement would not have created
a reasonable doubt as to petitioners guilt. Hincapie v. Greiner, 155 F. Supp.2d 66, 69
(S.D.N.Y. 2001). The Second Circuit ruled that Lopezs statement carried no indicia
of reliability. Hincapie v. Greiner, 56 Fed. Appx. 61, 62, 2003 U.S. App. LEXIS 3354
(Feb. 24, 2003) at **2. There is no basis to gainsay the federal courts rulings.

POINT IV
THE AFFIDAVITS OF WILLIAM HUGHES AND
ROBERT DENNISON HAVE NO PROBATIVE
VALUE AND SHOULD BE DISREGARDED.
In further support of his motion, Hincapie proffers the affidavits of William
Hughes and Robert Dennison. Hughes is a journalist, see Hughes Affidavit 3-4.
Dennison is the former Chairman of the New York Parole Board, see Dennison
Affidavit. Both men met Hincapie well after the events at issue in this case Hughes
in 2006, and Dennison 2 years ago. See Hughes Aff. 2; Dennison Aff. 1.
Both men have spoken with Hincapie and aver that his story to them has been
consistent and that they believe him. See Hughes Aff. 9-10, 12; Dennison Aff.

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3,11. Both men also met with Montero, and they believe him as well. See Hughes Aff.
10-12; Dennison Aff. 10.
Hughes and Dennison have no information that is relevant to the instant
motion. They did not observe any of the incidents that give rise to this case or the
motion. The information they do provide consists entirely of conclusory averments
that the unsworn statements made in recent years by Hincapie and Montero have
been consistent. Beyond that, they are simply vouching for Hincapies and Monteros
veracity and for Hincapies innocence. A motion pursuant to CPL 440 must be
based on evidence, not the opinions of supporters. Their affidavits are without
probative value, and should be disregarded.

CONCLUSION
Hincapies 440.10(g) claim of alibi is contradicted by [the] court record and
there is no reasonable possibility that the alibi is true. CPL 440.30(4)(d). The
same is true of Hincapies 440.10(g) claim of coercion, which, moreover, is made
solely by the defendant and is unsupported by any other affidavit or evidence. Id.
These claims can and should be denied without a hearing. See id. See also People v.
Satterfield, 66 N.Y.2d 796, 799 (1985) (to be entitled to a hearing, [d]efendant must
show that the nonrecord facts sought to be established are material and would entitle
him to relief). Hincapies 440.10(h) claim of innocence merits a hearing only if he

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has made a showing of possible merit to warrant a fuller exploration by the court.
People v. Hamilton, supra, 115 A.D.3d at 27. He has not made that showing.
Twenty-three years ago the jury spoke in Hincapies case. It considered the
evidence against him, weighed it, and found him guilty. He challenged that conviction
vigorously, and his challenges were rebuffed. To overturn the careful, thorough, and
solemn determinations of the courts in which Hincapie has made his case would
require strong evidence that clearly shows that all of the earlier determinations were
unjust. Hincapie has not come forward with such evidence. He is not even close.
His motion should be summarily denied.

Respectfully submitted,


CYRUS R. VANCE, JR.
District Attorney
New York County



EUGENE R. HURLEY III
WILLIAM DARROW
Assistant District Attorneys

May 23, 2014