SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY: PART 73

--------------------------------------------------------------------x
THE PEOPLE OF THE STATE OF NEW YORK,

Respondent, Indictment No. 10641/90

-against-

JOHNNY HINCAPIE,

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








LEAH M. BUSBY
RONALD L. KUBY
Law Office of Ronald L. Kuby
119 W. 23
rd
Street, Suite 900
New York, New York 10011
(212) 529-0223

Attorneys for Johnny Hincapie


Dated: New York, New York
June 9, 2014

i
TABLE OF CONTENTS


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

I. HINCAPIE HAS MADE THE NECESSARY PRELIMINARY
SHOWING FOR THIS COURT TO GRANT A HEARING
PURSUANT TO C.P.L 440.10(1)(g) and C.P.L. 440.10(1)(h). ..................... 2

A. The affidavits of Luis Montero and Anthony Anderson
sufficiently raise genuine issues of fact that can only be
resolved with an evidentiary hearing. ................................................... 2

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

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

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

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

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


















ii
TABLE OF CASES AND AUTHORITIES

Cases

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


Statutes

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


Other Authorities

DNA Exonerations Nationwide Factsheet, Innocenceproject.org,
available at http://www.innocenceproject.org/Content/DNA_Exonerations_
Nationwide.php# ........................................................................................................ 3

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

The Innocent Prisoners Dilemma: Consequences of Failing to Admit Guilt at
Parole Hearings, 93 Iowa Law Review 491, 497 (2008) ......................................... 3

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


1

SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY: PART 73
--------------------------------------------------------------------x
THE PEOPLE OF THE STATE OF NEW YORK,

Respondent, Indictment No. 10641/90

-against-

JOHNNY HINCAPIE,

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

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

While the prosecutions opposition to the instant motion misrepresents many
of the facts of this case, relies on highly unreliable witnesses, and misstates the
applicable law, it does help make one thing clear: a hearing is required. The issues
presently before the Court cannot be determined without a thorough examination
of the witnesses proffered by both sides.
The prosecution predictably asks the court to decide this motion on the
papers, preferring trial by affidavit and argument. The dangers of such an
approach were briefly referenced during the prior Court appearance, when defense
counsel pointed out the material omissions in the Schiels Affidavit. More
basically, at hearing, Hincapie will establish that Luis Montero and Anthony
Anderson are credible and reliable witnesses, and that Tom Schiels and Anthony
2

Nichols are not. After seeing the witnesses on both direct and cross-examination,
this Court will then make a determination about credibility that will decide
Hincapies fate.
I. HINCAPIE HAS MADE THE NECESSARY PRELIMINARY
SHOWING FOR THIS COURT TO GRANT A HEARING
PURSUANT TO C.P.L. 440.10(1)(g) and C.P.L. 440.10(1)(h).

A. The affidavits of Luis Montero and Anthony Anderson sufficiently
raise genuine issues of fact that can only be resolved with an
evidentiary hearing.

The prosecution argues that the evidence provided in the affidavits of Luis
Montero and Anthony Anderson would not probably change the result of the
verdict, that the allegations of Montero and Anderson are demonstrably false,
and that Hincapie has not acted with due diligence in order to obtain the affidavits.
On the contrary, Hincapie has established the materiality and reliability of the
testimony of both witnesses, as well as his diligence in seeking this evidence, in his
submission to this court. Any questions the court may have as to each of these
issues can only be resolved with an evidentiary hearing.
Luis Monteros Affidavit
The prosecution makes the incredible claim that Monteros testimony should
not be believed because it is contradicted by Hincapies confession. Of course it
is.
1
The prosecution suggests that in order to be credible, Hincapies newly

1
Its true that the constitutionality of Hincapies confession has been litigated. This does not
3

discovered witnesses must provide evidence that is consistent with the confession
Hincapie claims is completely false. This is just silly. By such a standard, every
one of the 79 defendants in false confession cases that have resulted in
exonerations based on DNA evidence would still be in prison. See, DNA
Exonerations Nationwide Factsheet, Innocenceproject.org, available at
http://www.innocenceproject.org/Content/DNA_Exonerations_Nationwide.php#.
Next, the prosecution argues that Hincapies statements to his probation
officer prior to sentencing contradict his affidavit, and should Hincapie claim that
he felt he had to express remorse (having already been convicted), to credit such
an argument would serve only to advantage those who lie to law enforcement
officers, and allow those convicted of crimes, like Hincapie, to say whatever suits
their purposes, whenever it suits their purposes. (NYCDA Mem. of Law at 30, n.
6). The prosecution professes detachment from the reality it helped to create: under
certain circumstances, such as before sentencing and at parole hearings, innocent
men and women profess their guilt, usually at the advice of counsel, because they
have been told that all is lost and the only thing they can hope for is mercy. See,
The Innocent Prisoners Dilemma: Consequences of Failing to Admit Guilt at
Parole Hearings, 93 Iowa Law Review 491, 497 (2008).

prove that his confession was the truth. Moreover, Hincapie had not until recently obtained
evidence supporting his claim that his confession was coerced. Thus, no court has reviewed his
confession with all of the relevant facts.
4

There are countless cases where the DANY assistants have thundered that
the defendant deserves the maximum sentence because she or he failed to show
remorse and instead, clings to the claim of innocence.
While its incomprehensible that the prosecution does not recognize such a
commonplace phenomenon, theres no need to speculate here. In a letter written to
his attorney in December 1991, Hincapie expresses his anger and confusion about
his attorneys advice to not discuss his claim of innocence in his statement to the
judge prior to sentencing. (Hincapie Letter to David Richman, Dec. 12, 1991).
2

Specifically, Hincapie wrote:
My mother told meyou told her to tell me to leave out the part about my
innocence. That due to the jury finding me guilty the judge will not be
interested in hearing about that and that he could sentence me to the
maximum and not the minimum. My mother and me are disturbed about
thisI dont understand why I cant mention this

(Id.) That Hincapie acquiesced to the advice of counsel, given in the context of a
system that DANY had worked so mightily to rig against claims of innocence, is
hardly a surprise.
The prosecutions next claim is related to Anthony Nichols. In a recently
completed affidavit, Nichols claims that he saw 8 to 10 guys running from the
direction of the subway entranceThey included Hincapie and others who
ultimately were charged with the robbery and murder. (Nichols Aff. at para 3).

2
This letter will be provided to the court and opposing counsel, at a hearing or if the Court
wishes to inspect it.
5

Later in the same paragraph, he restates this: [Hincapie] was with the 8 or 10 guys
who were running. (Id.) Nichols must have a one-of-a-kind photographic memory
he apparently can remember seeing Hincapie in that group of guys today, 24
years later, even though he could not remember seeing him in the group less than
two years after the incident.
At the separate trial of Hincapies co-defendants, Nichols testified that he
saw eight to ten guys outside of the subway entrance when he first got off the
train. (Tr. 728). When asked who was in that group of guys, however, he
responded, I dont recall. (Id.) When asked for a second time who he saw in that
group of 8 to 10 guys, he said: I saw eight to ten guys standing I dont recall
who I exactly saw. (Tr. 729). Nichols also testified that he saw a group of eight
or so men running from the subway station as he was walking to Roseland. (Tr.
740-41). When asked by the prosecution who the people were that he saw running,
Nichols testified: I didnt actually see those people, but I assume they were the
ones (Tr. 743). The court struck Nichols testimony related to his assumption,
and then asked Nichols if he saw their faces. Nichols replied, No. (Tr. 743).
Obviously, Nichols memory becomes much clearer after being tutored by
DANYs wrongful conviction unit.
Oblivious to the irony, the prosecution asks this Court to find Nichols
recent affidavit credible while also arguing that Monteros omission of Hincapies
6

name at the time of trial means that he never saw Hincapie. Monteros omission is
understandable Montero was never asked to list each and every person he saw
and where he saw them on the night of the mugging. (Montero Aff. at 10).
However, Nichols trial testimony is more than an omission he clearly stated that
he did not see the faces of the people running from the subway station. But, today,
Nichols magically remembers seeing Johnny Hincapies face. And the prosecution
is asking the court to believe him.
3

Also according to his trial testimony, Nichols executed an immunity
agreement with the District Attorneys Office in exchange for information he
provided about the mugging. (Tr. 696). The prosecution neglects to mention this
agreement in its opposition, and Nichols also conveniently omits mention of the
agreement in his affidavit. While the existence of an immunity agreement does not
prove anything, it calls into question Nichols motives in providing an affidavit on
behalf of the prosecution.
In sum, Nichols affidavit is untrustworthy and the prosecution knows it.
Should the court wish to see Nichols be completely discredited on the witness
stand, Hincapies counsel will be happy to cross-examine him at an evidentiary
hearing.

3
Hincapie is in possession of additional evidence that calls into question Nichols credibility. If
the court requires additional evidence before ordering a hearing in this matter, Hincapie will
provide it.
7

The prosecution argues that Monteros affidavit is demonstrably false
because Montero neglected to mention Hincapies presence on the turnstile level
with him in the past. It is clear from Monteros original statement to police that he
wanted to distance himself from those he knew had been arrested for playing a role
in the mugging. (PR Exh. 5 at 9-11). Montero stated that he was waiting for John
Montenegro. (Id. at 10). In fact he, was waiting for Gary Morales, but this did not
come out until later. (RFD, PR Exh. 7 at 3). The prosecution seemed to understand
Monteros basis for holding back this information then, given that they ultimately
credited Monteros account and dismissed his indictment. Montero also did not
acknowledge that Rockstar was his cousin, and did not admit that he was his
friend right away. (PR Exh. 5 at 10). The prosecution argues, Montero had every
incentive to name every witness who could support his presence on the turnstile
level. (NYCDA Mem. of Law at 34). He most certainly did not. Montero could
have reasonably feared that, had he mentioned that he knew Hincapie was not
involved in the mugging, the questioning from police would get more intense and
the beatings the hitting, grabbing, and choking would only get more violent.
See, Montero Aff. at 7. Montero was trying very hard to not get falsely arrested
and indicted for a crime that he did not commit.
The prosecution argues that because this argument was not included in
Monteros affidavit, the court may not consider it. (NYCDA Mem. of Law at 34).
8

This is not a factual claim that is a basis for Hincapies motion it is common
sense.
Monteros explanation about why he did not come forward earlier about the
information related to Hincapie is simple: no one ever asked him specifically about
Hincapie. (Montero Aff. at 10). Given his experiences at the hands of DANY, his
lack of civic volunteerism is understandable.
The prosecutions next claim related to Monteros credibility is that the
statements in his recent affidavit are untrue because of the timing of certain events
based on the trial record. The essence of this argument is that Montero never said
that he saw the perpetrators or the victims go through the turnstile, therefore he did
not see them. Because he never saw either of these events, and because the
mugging happened a few minutes after the victims went through the turnstile,
Montero was only on the bench at the turnstile level for a few minutes. Thus, the
prosecution concludes, there was not enough time for Montero to see and do what
he claims he saw and did in his recent affidavit. See, NYCDA Mem. of Law at 35-
37.
This is a clumsy attempt to discredit Montero based on bad logic. Monteros
statements related to Hincapie in his affidavit show that their interaction was rather
brief. See, Montero Aff. at 3-4. No one was keeping time. The prosecutions claim
that Monteros statements related to Hincapie are impossible is baseless.
9

The prosecutions final argument related to Monteros credibility is that
Montero is biased in favor of Hincapie. This argument holds no weight. Hincapie
could argue that former ADA Thomas Schiels is biased in favor of himself and that
Anthony Nichols is biased in favor of the prosecution because they did him a huge
favor back in 1990, and therefore their affidavits cannot be believed. The
prosecution should be ashamed that they are standing by the brutal beating of an
innocent suspect by police officers and simultaneously claiming that when that
former suspect finally is brave enough to come forward with the truth, that hes
only doing it to disparage[] the work and reputations of those law enforcement
personnel. (NYCDA Mem. of Law at 38).
Finally, the fact that Montero did not make himself available to the
prosecution for questioning also proves nothing. It should be noted that the
prosecution states that Anthony Nichols made himself available to both sides,
suggesting that Nichols gave the same information to Hincapies legal team as is
currently in his affidavit. (NYCDA Mem. of Law at 38). The Court should be
aware that this is not true. Nichols inconsistencies can be addressed at an
evidentiary hearing. In any event, Mr. Montero has had two private interactions in
his life with DANYin the first, he was accused of a horrific crime and held
without bail for 18 months. In the second, he was exonerated for that crime. That
he chooses not to risk a third makes perfect sense.
10

Anthony Andersons Affidavit
In its opposition, the prosecution merely speculates about the reasons
Anthony Anderson could be lying in his recent affidavit. For example, the
prosecution states: it is entirely possible that [Anderson] did see Hincapie but
did not know who Hincapie was. (NYCDA Mem. of Law at 39). The prosecution
has not and cannot disprove Andersons factual allegations. Therefore, the issue
that remains is Andersons credibility, which can only be tested at an evidentiary
hearing.
Hincapies Coerced Confession
Hincapie has always recited the same facts about what happened in the
interrogation room with Detective Casey, and that those events led him to confess
to a crime he did not commit. Attached here is Hincapies letter to his former
attorney, Sal Nigrone, on September 5, 1990. The letter is as moving as it is
chilling. In the letter, Hincapie tells Nigrone what happened that night, the truth,
the same statements that are in Hincapies recent affidavit. Hincapie told Nigrone
what happened when he told Detective Casey the truth: I was telling him the truth
but he said that was not good enough that I was a liar and that if I wanted to go
home I had to learn the story to the confession. (Hincapie Ltr., Sept. 5, 1990,
attached as Exhibit A).
11

Hincapie explained what Casey did next: He grabbed my hair, slapped me
in my face, kicked me in the chest while I was still handcuffed to the chair. (Id. at
2). Hincapie also emphatically expressed his innocence:
Mr. Nigrone I swear I didnt do anything. I didnt know about a crime or
anyone dieing [sic] until I saw it on the news. You must believe me. I am
innocent. I had nothing to do with thisI am telling you Mr. Nigrone I am
innocent. Please believe me. Please help meI swear Mr. Nigrone I swear I
am innocentPlease talk to the judge and tell him that I am telling the truth.
That that Detective Casey told me to say everything pleaseI am innocent
please for the last time help me get out of here and talk to the DA and judge.

(Id. at 3-5).

Johnny Hincapie will resolve any questions the court still may have about
his credibility when he testifies at an evidentiary hearing. Monteros testimony
about the brutality he experienced at the hands of the police will corroborate
Hincapies testimony.
The prosecution also proffers the affidavit of former ADA Thomas Schiels
in support of its opposition to Hincapies motion. The prosecution specifically uses
Schiels affirmation to attack Hincapies claims about his coerced confession. In
Schiels affidavit, he claims that Hincapie re-confessed to his role in the mugging
during Schiels interview of Hincapie during his re-investigation of Hincapies
conviction in 2009. Specifically, Schiels states: I also asked him whether the
written statement was true. Hincapie told me that it was. (PR Exh. 1, Schiels
12

Affirmation, at para 17). This is a lie.
4
The Court does not need to take Hincapies
word for it. Also present in the room during Schiels interview of Hincapie was his
former attorney, Vivian Shevitz. Shevitz has submitted an affirmation on
Hincapies behalf. It is attached as Exhibit B. In her affirmation, Shevitz states as
follows:
I have reviewed the affirmation submitted by former ADA Schiels in this
matter, and I was shocked to read that Schiels claims that Mr. Hincapie re-
confessed to his role in the mugging during his interview. This is false.
Mr. Hincapie did not confess to any role in the mugging.

(Shevitz Affirmation at 1, para 2).

Shevitz also explains that Schiels incompletely states what Hincapie told
him during the interview about what took place in the interrogation room with
Detective Casey. (Id. at 5, para 7). Shevitz will be available to testify as to these
facts at an evidentiary hearing.



4
As noted at the last court appearance, Mr. Schiels has his own credibility problems. In May
1999, Schiels was charged with drunken driving, leaving the scene of an accident and
impersonating a police officer. (Prosecutor is Accused of Driving While Drunk, N.Y. Times,
May 22, 1999). Citing the criminal complaint filed against Schiels, the New York Times article
states: Mr. Schiels then told Mr. Munoz that there was no need to report the accident to the
police, pulled out a gold badge and said he was an officer himself (Id.) See also, Top
Prosecutor Busted In DWI Collision, N.Y. Post, May 22, 1999. Somehow, former ADA
Schiels managed to get past this case, keep his job, and keep his law license. But his abuse of
power is disturbing and at the least, Hincapie must have the opportunity to cross-examine him at
an evidentiary hearing.

13

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

In its opposition, the prosecution evinces its naivet about the hurdles a
young imprisoned man, with little to no resources, faces in trying to procure
evidence on his behalf. The prosecution relies heavily on People v. Rodriguez, 193
A.D.2d 363 (1st Dept. 1993) in support for its claim that Hincapie should have and
could have obtained the evidence provided by Montero and Anderson pre-trial, and
therefore should be denied a hearing. This was a mistake the Rodriguez case is
much more helpful to Hincapie than to the prosecution. The most important
difference from Rodriguez and this case is that the credibility of Wendy Judge, the
purported newly discovered witness, was determined after a hearing. Moreover,
based on her affidavit alone, Wendy Judge was much less likely to be a credible
witness than Montero and Anderson are here.
In the Rodriguez case, Wendy Judge claimed in her affidavit that she was
guilty of the crime and Rodriguez was not. Id. at 364. Judge had not been
identified or apprehended previously. Id. It appears that all that was known at trial
about the unidentified witness-accomplice was that she was a woman. Id. As the
court surely realized, all Rodriguez had to do was find a woman who would submit
an affidavit on his behalf.
The evidence provided by Luis Montero, and the circumstances surrounding
the submission of his affidavit, couldnt be more different. Monteros precise
14

location on a bench at the turnstile level of the subway station was known pre-
trial. Montero was there; he is not a witness pulled from the sky. Monteros recent
affidavit is also consistent with his statements around the time of the crime and
with the statements that corroborated his story a story that the prosecution
deemed credible when it dismissed his indictment. Unlike Rodriguez, who was on
the streets and able to personally search for his witness, Hincapie has been in
prison and without resources to hire investigators. He has had to rely on the good
will of various supporters. Given his circumstances, Hincapie has made every
effort to find exculpatory evidence that could be reasonably expected of him. See,
Hincapie Aff. at 10.
5

The same is true with regard to Anthony Anderson. There is no question that
Anderson was present at the scene of the crime on September 2, 1990. At a
hearing, Hincapie will testify as to his various attempts to contact Anderson and
the other co-defendants through intermediaries to find out if they remembered
anything specific about Hincapies presence. Hincapie only learned that Anderson
specifically remembered that Hincapie had nothing to do with the crime, and was
willing to say so, at a chance encounter at Sing Sing. (Hincapie Aff. at 10).

5
The prosecution argues that Hincapies affidavit is not newly discovered evidence and therefore
should not be considered by this court. This argument misses the mark. Hincapies affidavit is
not proffered as newly discovered evidence; it has been provided to support his claim of actual
innocence and to establish due diligence.
15

Moreoever, Andersons attorney had advised him to keep [his] mouth shut about
any information in the case. (Anderson Aff. at 2).
Hincapies case is also materially different from Rodriguez in that there was
only one witness to Rodriguezs actions at the time of the crime. There was only
one person Rodriguez needed to find to corroborate his version of events.
Rodriguez claimed that he did not know her name or where she lived, so had
trouble finding her. Rodriguez, 193 A.D.2d at 364. The court pointed out that even
though Rodriguez happened to live around the corner from Judge, he did not
canvas the neighborhood to find her, hire an investigator, or interview
acquaintances about her whereabouts. Id. at 366. In this case, Hincapie spoke to
many different people in several different locations during the relevant time period
and did not know which individuals would have remembered seeing him, or when.
(Hincapie Aff. at 10). Despite this, he worked extremely diligently to try to speak
with anyone who might be able to provide helpful information. (Id.)
Thanks to the work of his supporters, Hincapie was finally able to track
down witnesses who can substantiate his claim of innocence. And the prosecution
does not even want the court to hear what these men have to say.
In one of the many parts of its opposition where the prosecution comes to a
conclusion without citing any logical basis, the prosecution contends, Hincapie
knew exactly what Montero would say. (NYCDA Mem. of Law at 26). This
16

conclusion is apparently based on the fact that Hincapie knew Montero personally.
See, id. at n. 5. In fact, Hincapie did not know what Montero would say, and did
not learn what he would say until recently. That Hincapie knew Montero in no way
proves that he knew what he saw that night, or what he was willing to say about it.
Hincapies credibility as to this issue can be tested at an evidentiary hearing. At the
hearing, Hincapie will also tell the Court about all his efforts over the years to
obtain pro bono legal assistance, to hire investigators, and to otherwise recruit
supporters to help him prove his innocence. Should the Court have questions as to
his due diligence, Hincapie will submit a supplemental affidavit addressing this
issue.
CONCLUSION
For the foregoing reasons, the conviction of Johnny Hincapie must be
vacated. In the alternative, a hearing must be held. Should the Court wish to
examine any additional evidence that has been referenced in this reply before
ordering a hearing, Hincapie will provide such evidence immediately.

Dated: New York, New York
June 9, 2014
__________________________
LEAH M. BUSBY
RONALD L. KUBY
Law Office of Ronald L. Kuby
119 W. 23
rd
Street, Suite 900
New York, New York 10011
(212) 529-0223























EXHIBIT A























EXHIBIT B