SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK -- PART 58

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THE PEOPLE OF THE STATE OF NEW YORK :
: AFFIRMATION IN RESPONSE
-against- : TO MOTION TO VACATE
: JUDGMENT OF CONVICTION
KHAREY WISE, KEVIN RICHARDSON, :
ANTRON MCCRAY, YUSEF SALAAM, and : INDICTMENT NO. 4762/89
RAYMOND SANTANA, :
:
Defendants. :
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NANCY E. RYAN, an attorney duly admitted to practice in the

State of New York and an Assistant District Attorney in and for

the County of New York, hereby affirms under penalty of perjury

that:

1. I am the Assistant District Attorney in charge of the

above-captioned case, and as such I am fully familiar with the

facts and circumstances herein.

2. This affirmation is based upon information and belief,

the sources of said information and belief being transcripts of

prior proceedings held in connection with the above-captioned

indictment; files, records, briefs, notes, and videotapes

maintained by the New York County District Attorney's Office, the

New York City Police Department, the Federal Bureau of

Investigation, and the City and State Departments of Corrections;

interviews with police, civilian, and expert witnesses; and

conversations with Assistant District Attorneys.

3. I make this affirmation in response to motions submitted

by the defendants Kevin Richardson, Antron McCray, Raymond

Santana, Yusef Salaam, and Kharey Wise, all of whom were convicted

Page 1 of 58
after trial of various charges contained in New York County

Supreme Court Indictment Number 4762/89. The motions have been

made pursuant to Criminal Procedure Law Section 440.10(1)(g).

Each motion requests that guilty verdicts rendered against the

defendants in connection with the above-captioned indictment be

vacated and set aside based upon newly discovered evidence, and

that the court grant whatever further relief may be just and

proper.
4. The defendants were all convicted of charges relating to

the April 19, 1989, assault and rape of a female jogger.

Additionally, defendants Richardson, McCray, Salaam, and Santana

were convicted of charges relating to the assault and robbery of a

second, male jogger on the same date. Finally, defendant Wise was

convicted of a riot charge in connection with a series of events

that encompassed both those criminal incidents. The newly

discovered evidence relied upon by all the defendants consists of

an affidavit by Matias Reyes, in which he swears that he alone

committed the attack on the female jogger of which each stands

convicted.

5. Based on the facts and for the reasons set forth below,

the People consent to the defendants' motions to set aside the

verdicts on all the charges of which they were convicted.

6. This affirmation does not describe the full scope of the

review, reinvestigation, and reevaluation of the evidence

undertaken by the Office of the District Attorney in connection

with this matter. It outlines the principal issues considered by

the People in responding to the defendants' legal motions,

Page 2 of 58
summarizes some of the facts relevant to those issues, and

explains the analysis undertaken to resolve them. In short, it

deals with the specific legal issue presented by the defendants'

motions: whether the newly discovered evidence in this matter

creates a probability that, if the evidence had been received at

trial, it would have resulted in a verdict more favorable to the

defendants on one or more charges.

HISTORY OF THE PROSECUTION

7. On the night of April 19, 1989, a series of violent

incidents occurred in Central Park, involving members of a group

of more than 30 teenagers. The incidents resulted in the arrests

and convictions of ten young men, including the above-named

defendants. At approximately 9:05 p.m. Michael Vigna, a racing

biker, was accosted by a band of youths on the East Drive, just

north of the 102nd Street transverse. A few minutes later,

Antonio Diaz was assaulted and robbed, also on the East Drive, at

about the level of 102nd Street. He was left unconscious. At

roughly 9:12 to 9:15 p.m., a couple on a tandem bicycle was

menaced on the drive just south of the 102nd Street entrance to

the park. Moments later, slightly south of that, a taxi driver

had rocks hurled at his cab, and was threatened by a group of

teenagers when he got out of the car to investigate. And,

beginning at about 9:24 p.m. and continuing until roughly 9:45, a

series of four male joggers were set upon on the jogging path at

the northern end of the Central Park Reservoir. Two of the male

joggers escaped essentially unharmed, but two, Robert Garner and

John Loughlin, were assaulted. Garner was not seriously hurt.

Page 3 of 58
Loughlin, however, was knocked to the ground, kicked, punched, and

beaten with a pipe and stick. He was knocked unconscious, and

sustained significant but not life-threatening injuries.

8. At approximately 1:30 a.m., an unconscious woman was

found by two men walking on a footpath through Central Park. She

lay at the edge of a wooded area, roughly 300 feet north of the

102nd Street transverse road, which runs in an "s"-shaped curve

connecting the East and West Drives of the park. Police and
medical personnel were summoned. The victim, a twenty-nine year

old white woman who came to be known as the "Central Park jogger,"

was removed to the hospital. She had been badly beaten about the

head, and suffered numerous bruises, scratches, and abrasions

elsewhere on her body. Her t-shirt had been rolled into a ligature

and used to tie her in a distinctive fashion.* Subsequent

investigation revealed that she had left her apartment on East

83rd Street at roughly 8:55 p.m. to go jogging in the park, and

that her expected route would have taken her across the transverse

road. The investigation also revealed that she had been raped,

and that her radio headset and keys were missing.

9. Raymond Santana and Kevin Richardson, as well as a

number of other youths, were apprehended at approximately 10:15

p.m. on April 19, after police officers responding to reports

concerning some of the incidents spotted them on the western

outskirts of the park. Antron McCray, Yusef Salaam, and Kharey

*
The shirt was placed behind her head, crisscrossed over and
through her mouth, and then used to tie her hands and wrists up in
front of her face.

Page 4 of 58
Wise were brought in for questioning on April 20, 1989, after they

had been identified by other youths as having been present at or

participants in some of the events in the park.

10. Each of the defendants was questioned by detectives and

made one or more statements. All five of the defendants

implicated themselves in a number of the crimes which had occurred

in the park. None of them admitted actually raping the Central

Park jogger, but each gave an account of events in which he made

himself an accomplice to the crime. Kharey Wise was 16 years old

at the time; Yusef Salaam and Antron McCray were 15; and Kevin

Richardson and Raymond Santana were 14.

11. On May 4, 1989, Indictment Number 4762/1989 was filed

charging each of the defendants with Attempted Murder in the

Second Degree (Penal Law Section 110/125.25(1)), Rape in the First

Degree (Penal Law Section 130.35(1)), Sodomy in the First Degree

(Penal Law Section 130.50(1)), Sexual Abuse in the First Degree

(Penal Law Section 130.65(1)), and two counts of Assault in the

First Degree (Penal Law Sections 120.10(1) and (3)), with respect
to the Central Park jogger. In addition, the indictment charged

each of them with Robbery in the First Degree (Penal Law Section

160.15(3)), two counts of Robbery in the Second Degree (Penal Law

Sections 160.10(1) and (2)(a)), and two counts of Assault in the

Second Degree (Penal Law Sections 120.05(2) and (6)) in connection

with the attack on John Loughlin, and with Assault in the Second

Degree (Penal Law Section 120.05(6)) with respect to jogger David

Lewis. All of the defendants were also charged with Riot in the

First Degree (Penal Law Section 240.06).

Page 5 of 58
 12. Steven Lopez, 15, was also indicted in connection with

the attack on the jogger. Lopez was named by Kevin Richardson,

Raymond Santana, and Kharey Wise as having participated in the

crime, although they varied greatly in their descriptions of his

conduct. Lopez was interviewed and made a videotaped statement

following his arrest on April 19, and denied any knowledge of an

incident involving a female jogger. However, in subsequent

forensic testing, a single hair taken from his clothing was found
to be "consistent with" the jogger's hair, based upon a

microscopic analysis. Lopez was charged in the same indictment as

the five other defendants. On January 30, 1991, he pled guilty to

Robbery in the First Degree in connection with the assault on John

Loughlin, and on March 13, 1991, he received a sentence of one and

one-half to four and one-half years.

13. Charges were also filed against five other defendants

who were involved in the incidents which took place on April 19.

14. Michael Briscoe, 17, was named by Kevin Richardson as a

participant in the assault on the female jogger; he was also

named by Kharey Wise, in one of two videotaped statements Wise

made. None of the other defendants mentioned him, at least by

name. He was interviewed by investigators and made a videotaped

statement. He denied knowledge of or culpability in the incident.

Briscoe was initially charged in connection with the crime in a

Criminal Court complaint, but was never indicted on those charges.

On May 4, 1989, he was indicted for Riot in the First Degree

(Penal Law Section 240.06) and Assault in the Second Degree (Penal

Law Section 120.05(6)), in connection with the attack on jogger

Page 6 of 58
David Lewis. Briscoe pled guilty to the assault charge on May 31,

1990, and received a sentence of one year to run concurrently with

a sentence imposed on an unrelated case.

15. Jermaine Robinson, 15, was also indicted on May 4, 1989,

charged with Robbery in the First Degree (Penal Law Section

160.15(3), two counts of Robbery in the Second Degree (Penal Law

Section (2)(a) and (1)), three counts of Assault in the Second

Degree (Penal Law Section 120.05(2) and (6)), and Riot in the
First Degree (Penal Law Section 240.06). The charges pertained to

the assaults on John Loughlin and David Lewis. Robinson had not

been identified by any of the defendants as a participant in the

attack on the female jogger, and he denied knowing anything about

such an attack in his interviews. On October 5, 1989, Robinson

pled guilty to Robbery in the First Degree in connection with the

incident involving John Loughlin. He also entered into a plea

agreement that required him to testify for the prosecution if

called upon to do so. Robinson was not called as a witness in the

subsequent trials of the defendants, and he was sentenced to one

year on April 4, 1991, and granted Youthful Offender treatment.

16. On January 10, 1990, Antonio Montalvo, 18, was charged

under Indictment Number 0009/90 with two counts of Robbery in the

Second Degree (Penal Law Section 160.10(2)(a) and (1)), one count

of Assault in the Second Degree (Penal Law Section 120.05(2)), and

Riot in the First Degree (Penal Law Section 240.06), in connection

with the assault on Antonio Diaz. Montalvo, known as "Tony", had

been named as a participant, though not a rapist, in Antron

Page 7 of 58
McCray's statement about the jogger attack.* None of the other

defendants had named him. Montalvo was interviewed by

investigators about the events in the park, and made a videotaped

statement to an Assistant District Attorney. He denied any

knowledge of an attack on a female jogger, and was never charged

in connection with the crime. On January 29, 1991, he pled guilty

to Robbery in the Second Degree. He received a sentence of one

year.

17. Orlando Escobar, 16, was also indicted on January 10 of

1990, for Robbery in the First Degree (Penal Law Section

160.15(3)), two counts of Robbery in the Second Degree (Penal Law

Sections 160.10(2)(a) and (1)), two counts of Assault in the

Second Degree (Penal Law Sections 120.05(2) and (6)), and Riot in

the First Degree (Penal Law Section 240.06). The charges

pertained to the assault on John Loughlin. Antron McCray had

stated that a "Puerto Rican kid with a hoodie" had raped the

jogger, and Escobar may have been the person he was referring to.*
*
Montalvo's identity as the person McCray was referring to is
firmly established by analyzing McCray's statement and a number of
others made during the 1989 investigation. McCray identified
"Tony" as a participant in the assault on Antonio Diaz, and the
person who took his food and ate some of it. Four others said the
same thing. Raymond Santana stated that Montalvo admitted to him
that he was the person who had taken and eaten the food. In
statements made to the police at the time, Montalvo acknowledged
having done so. Finally, Kevin Richardson stated that a person
named "Tony" participated in the assault on Diaz, and said that he
lived in the Lehman Projects. That was Montalvo's residence at
the time.
*
That conclusion is based upon an analysis of the contents of
McCray's statement and others. In the course of his videotaped
statement, McCray mentioned ultimately leaving the park with
another youngster. He did not know the person well, and could not
immediately recall his name. Later in the statement, he
remembered that his name was Orlando. In Escobar's own

Page 8 of 58
None of the other defendants mentioned him in their statements.

Escobar was interviewed, denied any knowledge of the attack, and

was never charged in connection with it. On March 14, 1991, he

pled guilty to Attempted Robbery in the Second Degree. He was

sentenced to six months incarceration and four and one-half years

probation.

18. On April 21, 1989, Clarence Thomas, 14, was charged in a

Criminal Court complaint with Rape in the First Degree (Penal Law
Section 130.35(1)), Attempted Murder in the Second Degree (Penal

Law Section 110/125.25(1)), and Assault in the First Degree (Penal

Law Section 120.10(1) in connection with the attack on the Central

Park jogger. Antron McCray had named Thomas as one of the people

who actually raped the jogger; police notes reflect that Kevin

Richardson had also placed him at the scene, though Richardson did

not repeat the allegation in his written or recorded statements.

None of the other defendants named him. Thomas was interviewed

and made a videotaped statement. He denied that he played any part

in an attack on a female jogger. Subsequently, additional charges

were filed against him in Criminal Court in connection with the

attacks on Loughlin and other joggers at the reservoir. Thomas

was never indicted, and all charges against him were dismissed on

October 31, 1989.

(..continued)
statements, he made it clear that he had played a role in the
incidents involving Diaz, the tandem bicyclists, and the joggers
at the reservoir, but that he was not well known to the others in
the group. In an interview with another individual conducted in
1989, that individual said that he saw McCray and Orlando Escobar
when they returned to their apartment complex, and that both were
wearing black hoods.

Page 9 of 58
 19. Pursuant to motions to suppress their statements filed

by each defendant, a joint Huntley hearing was held before Justice

Thomas Galligan from October 10 to November 29, 1989. On February

23, 1990, the court issued an opinion denying the defendants'

motions, with the exception of a single oral statement made by

Raymond Santana.

20. On June 25, 1990, Antron McCray, Yusef Salaam, and

Raymond Santana proceeded to a joint trial before the Honorable

Thomas Galligan. On August 18, 1990, after ten days of

deliberations, the jury convicted each defendant of one count of

Assault in the First Degree and Rape in the First Degree for the

attack on the Central Park jogger; Robbery in the First Degree

and three assault charges for the attack on John Loughlin;

Assault in the Second Degree for the attack on David Lewis; and

Riot in the First Degree. It acquitted each defendant of

Attempted Murder and Sodomy as to the female jogger, and was

instructed by the judge not to consider the other, lesser included

counts. Since each was under 16 years of age, the court, on

September 11, 1990, set aside all their convictions except those

for First Degree Robbery and Rape, and then sentenced each of

them, as juveniles, to consecutive prison terms of from three and

one-third to ten years on each count. This resulted in an

aggregate term of from five to ten years pursuant to Penal Law

Section 70.30(1)(d).

21. Kevin Richardson and Kharey Wise were tried jointly,

also before Judge Galligan, from October 22, 1990, to December 11,

1990. The jury deliberated for eleven days before reaching a

Page 10 of 58
verdict. Richardson was found guilty of each count of the

indictment. Wise was convicted of Assault in the First Degree and

Sexual Abuse in the First Degree with respect to the attack on the

Central Park jogger, and of Riot in the First Degree. He was

acquitted of the remaining charges. Because of Richardson's age,

Justice Galligan set aside all of Richardson's convictions except

for those for Attempted Murder in the Second Degree and First

Degree Robbery, Rape, and Sodomy. The court sentenced Richardson,

as a juvenile, to consecutive prison terms of from three and one-

third to ten years on each count, resulting in an aggregate term

of from five to ten years. Wise was sentenced to terms of

imprisonment of five to fifteen years for Assault in the First

Degree, two and one-third to seven years for Sexual Abuse in the

First Degree, and one to three years for Riot. The sentences were

imposed concurrently, for an aggregate term of five to fifteen

years.

22. Yusef Salaam's conviction was affirmed by the Appellate

Division (187 A.D.2d 363) and by the Court of Appeals (83 N.Y. 2d
51). Antron McCray's conviction was also affirmed by the

Appellate Division (198 A.D.2d 200), and the Court of Appeals

denied leave to appeal. The same is true of the conviction of

Kharey Wise (204 A.D.2d 133). Kevin Richardson's conviction was

affirmed by the Appellate Division (202 A.D.2d 207). Raymond

Santana never perfected an appeal.

EVIDENCE AGAINST THE DEFENDANTS AT TRIAL

23. A thorough and extensive investigation was undertaken at

the time of the original proceedings in an effort to develop

Page 11 of 58
additional evidence. Nevertheless, the People's case at both

trials rested almost entirely on the statements made by the

defendants.*

24. In addition to the defendants themselves, twenty-four

young men who were in Central Park on the night of April 19 were

interviewed, some repeatedly, as were a number of the defendants'

other associates. However, only one associate of one defendant,

Kharey Wise, testified at trial. Her testimony related to a

single inculpatory statement she said Wise had made to her, after

he had been indicted.**

25. The crime scene, the victim, the defendants, and their

personal effects were all examined for forensic evidence. Those

examinations resulted in the collection of blood, semen, and hair

evidence which was tested using the technologies in existence at

the time.

26. The crime scene covered a wide area, and comprised five
*
Kevin Richardson and Antron McCray each made one written and
one videotaped statement. Raymond Santana made two written
statements, with a supplement to one of them, and a videotaped
statement. Yusef Salaam made one oral, unrecorded, unsigned
statement. Kharey Wise made two written and two videotaped
statements.
**
That witness was Melody Jackson. Her brother, much younger
than she, was a friend of Wise, and she herself had known Wise for
years. She testified that on one occasion when she was in the
family apartment where her brother lived, Wise had telephoned from
jail. He called to speak with members of the family, as he often
did. She testified that when she got on the telephone, she told
him she could not believe what she was hearing about his having
sex with "that woman." According to Jackson's testimony, Wise
replied that he had not had sex with her, but had only held and
fondled the victim's leg. Jackson never mentioned Wise's
statement to anyone, including members of her own family, until
the eve of trial, when her brother was being questioned about Wise
by the police, and Jackson interjected with the information.

Page 12 of 58
separate sites at which relevant evidence was recovered. All of

the sites were on or north of the 102nd Street transverse. Two

substantial bloodstains, each roughly two inches in diameter, were

located on the transverse road itself, just north of the midline.

Beginning at the edge of the roadway was a visible path of

flattened vegetation, measuring from sixteen to eighteen inches

wide, which extended to the treeline that began forty feet to the

north. Within the wooded area where that vegetation ended, a

trail continued to be visible for some distance in the dead leaves

and other matter covering the ground.

27. Inside the treeline, approximately seventy-eight feet

from the roadway, more bloodstains were discovered at a location

where the ground -- bare earth covered by leaves and twigs --

appeared to have been disturbed. Blood samples were taken from

leaves in the area, and a rock which appeared to have blood and

several hairs on it was removed for testing. Approximately two

hundred twenty-five feet beyond that, farther into the wooded area

and down a slope, was another, larger area of disturbed ground

with a considerably greater quantity of visible blood and a single

hair. A trail of apparent blood spots was observed between the

two sites. A white sock and the insole of a jogging shoe were

found a short distance away from that second site, and a fragment

of brick was also recovered. A second sock was found about forty

feet away.

28. The jogger herself had been found at the bottom of the

slope, near an unpaved path, forty-seven feet from the location of

the disturbance above. On the opposite side of the path,

Page 13 of 58
scattered approximately thirty-two feet from where she lay,

investigators recovered a pair of black jogging tights and two

jogging shoes. One of the jogging shoes was untied, and the

insole had been removed; the other shoe was tied.

29. Numerous items of physical evidence found at each of

these locations were removed and tested for forensic evidence.

For purposes of this motion, only two of the specific test results

need be delineated.
30. The rock recovered from the disturbed site closest to

the road was found to have human blood on it. The rock was sent

to the F.B.I. for DNA testing, but no DNA profile could be

created. It was, however, typed according to the far less

discriminating ABO system, and certain proteins or antigens

identified. The test results indicated that it was consistent

with the jogger's blood type. The hair fragments found on the

rock were also examined by the only means then available, a

visual, microscopic comparison with samples taken from the jogger.

The comparison yielded the conclusion that the hair on the rock
was consistent with the jogger's -- meaning that it had

characteristics similar to her hair, and could have come from her.

31. Utilizing those results, testimony about the rock and

the hairs that had been found on it was elicited at both trials.

The microscopic analyst who had examined the hairs testified in

the trial of Salaam, McCray, and Santana that the hair fragments

on the rock were fragments of crushed and broken head hairs from

the temporal area of the head. He further stated that in his

opinion, they had been crushed and broken due to force from the

Page 14 of 58
rock. The expert went on to state that it was his belief that the

rock could have been used to strike the head of the victim. In

the trial of Richardson and Wise, he stated it as his opinion, to

a reasonable degree of scientific certainty, that the victim had

probably been struck on the side of the head with the rock.

32. DNA evidence was extracted from semen deposited on the

jogger's sock, found near her at the crime scene. It did not

match any of the defendants, or any other known sample.* The same

was true of DNA evidence extracted from a cervical swab; it did

not match the defendants or any other known sample. Expert

testimony at trial, however, established that the DNA from both

the victim and the sock appeared to have come from the same

source. Testimony also established that the DNA was not a

mixture; it was from a single source, meaning that only one

individual had ejaculated. A pubic hair found on the sock was

also examined microscopically. It was likewise found to be

inconsistent with the defendants and every other known source.

The known samples included samples from all of the individuals

whom the defendants had specifically named as rapists.

33. The People offered testimonial and photographic evidence

about the nature and extent of the injuries sustained by the

jogger. All of the relevant medical personnel were interviewed,

and a number were called to testify, including an expert witness

*
In addition to samples taken from the defendants, the jogger,
John Loughlin, Antonio Diaz, and the jogger's boyfriend, samples
were also secured from Steven Lopez, Michael Briscoe, Antonio
Montalvo, Jermaine Robinson, Clarence Thomas, and Lamont McCall,
all of whom had been with the defendants in Central Park that
night.

Page 15 of 58
from the Medical Examiner's Office who described each of the

jogger's injuries for the juries. The People were unable to offer

medical testimony to the effect that the injuries the jogger had

sustained could only have been inflicted by multiple perpetrators.*

34. Ultimately, there proved to be no physical or forensic

evidence recovered at the scene or from the person or effects of

the victim which connected the defendants to the attack on the

jogger, or could establish how many perpetrators participated.

35. The only forensic evidence recovered which in any way

connected the defendants to the crime consisted of three hairs

found on Kevin Richardson's clothing and one hair found on Steven

Lopez's clothing.** Richardson's clothing yielded nine human

hairs, all of which were examined microscopically. Six were not

consistent with the jogger. Three others, one from his underwear,

one from his t-shirt, and one from his blue jeans, were found by

the examiner to be consistent with the jogger's hair. A similar

conclusion was reached with respect to one out of the twelve hairs

recovered from Steven Lopez's clothing; that hair was found on

his shirt. The examiner's report of his findings with respect to

the hairs on Richardson and Lopez, as well as the hair fragments

*
As part of the 2002 reexamination of the case, Dr. Charles
Hirsch, Chief Medical Examiner of the City of New York, reviewed
the jogger's medical records and photographs. He has stated as
his opinion that "Nothing about the distribution or severity of
... [the victim's] injuries indicates or reveals the number of
assailants, which could have been one or more."
**
The value of the hairs found on Richardson's clothing was
compromised by the fact that the clothing was spread on the
precinct floor to be photographed before the hairs were removed.
There was, therefore, a possibility of contamination.

Page 16 of 58
recovered from the crime scene, stated that they "could have

originated" from the jogger.*

36. Testimony concerning the hairs found on Richardson was

introduced at both trials. Testimony concerning the hair found on

Lopez was introduced only at the trial of defendants Richardson

and Wise.

NEWLY DISCOVERED EVIDENCE

The Evidence Provided by Matias Reyes

37. In early February of 2002, the District Attorney's

Office was notified that an inmate had come forward with a claim

that he had attacked and raped the Central Park jogger, and that

he had committed the crime alone. The inmate, Matias Reyes, had

informed a Corrections Officer of his claim. He had then been

formally interviewed, on January 17, by an investigative

supervisor from the Inspector General's Office. Following that,

information about his contentions was forwarded to the District

Attorney's Office.

38. Reyes, now 31, is serving sentences totalling thirty-

three and one-third years to life imprisonment for three

rape/robberies, one rape/murder, and one robbery* that he committed

between June 11 and August 5, 1989. The sentences were imposed on

*
Two hairs were also removed from the clothing of Antron
McCray, and ten from the clothing of Raymond Santana; they were
not consistent with the jogger's hair. Kharey Wise's clothing was
not taken because it had been laundered. Yusef Salaam's jacket
was taken; no hairs were recovered.
*
According to Reyes' 2002 statements, he intended to rape the
victim, but was interrupted by neighbors before he could force her
into her apartment from the hallway where he accosted her.

Page 17 of 58
November 1, 1991, after Reyes admitted his guilt and entered pleas

of guilty to the top counts in each case.

39. Reyes' 1991 prosecutions had rested in part on DNA

evidence taken from his victims and from the scenes of his crimes,

which matched the DNA in a sample taken from him. That evidence

had been tested using the technology then in existence, RFLP, as

were the samples in the Central Park jogger case. Immediately

upon learning of Reyes' claims, efforts were undertaken to locate

the evidence from both cases, and the FBI laboratories were asked

to make a comparison. On May 8, 2002, the District Attorney's

Office was notified that Reyes' DNA matched the DNA taken from the

sock that had been found at the Central Park crime scene.

40. As soon as notification of the initial comparison was

received from the FBI, steps were taken to bring Reyes to the

District Attorney's Office for a further investigation of his

account. Reyes was interviewed for the first time on May 23. He

was interviewed again on May 28, when he was brought to Central

Park, and on May 30. He has subsequently been questioned on a

number of occasions. Reyes has also provided samples of his

blood, head, and pubic hair, and signed consent forms allowing

investigators access to his complete prison file and all of his

mail. He has been interviewed extensively about the Central Park

jogger case, about his criminal and personal history, about his

motives in coming forward, and about his associations.

41. The information Reyes provided in each of those areas

has been extensively investigated with a view toward either

corroborating or refuting his statements. The investigation has

Page 18 of 58
included interviews with police officers, Corrections personnel,

inmates, and civilians, as well as a review of all relevant

records pertaining to Reyes' personal, criminal, and psychological

history and the original investigation and prosecution of the

attack on the Central Park jogger.

42. That investigation has led to the conclusion that Reyes'

account of the attack and rape is corroborated by, consistent

with, or explanatory of objective, independent evidence in a

number of important respects. Further, investigators have been

unable to find any evidence that, as of 1989, Reyes knew or

associated with the defendants or any of the individuals known to

have been in the park with them on the night of April 19. In any

event, in their statements, several of the defendants themselves

named or otherwise identified the individuals they claimed raped

the Central Park jogger; the evidence indicates that none of

those individuals is Matias Reyes. In addition, Reyes has proven

to be candid and accurate about other aspects of his life,

associations, and history, both personal and criminal. A full

review and investigation of that criminal history has revealed

significant parallels with the jogger attack, and also resulted in

the discovery of important additional evidence.

43. Reyes states that his decision to come forward with his

confession was prompted by a chance encounter with Kharey Wise in

Auburn Correctional Facility, and the resultant realization that

Wise was still incarcerated in connection with the attack on the

Central Park jogger. Reyes says that he feared Wise's reaction,

and therefore disclosed nothing to him about his own culpability.

Page 19 of 58
However, he began seeking advice from different individuals in the

prison system, telling them that he had committed a crime for

which someone else had been convicted, and wanting to know how he

could bring his information to the attention of appropriate

authorities.

44. Corrections records reflect that Wise and Reyes were

both imprisoned at Auburn during the relevant time period,* and

interviews with prison officials have established that the

encounter Reyes described could have taken place. Interviews with

a number of Corrections employees, volunteers, and inmates have

confirmed Reyes' assertion that he began seeking help with a

problem in late 2001. He specifically told some of them that he

had committed a crime for which another person had been convicted,

and that he wanted to rectify the situation. Ultimately a

Corrections Officer, observing that Reyes seemed very troubled,

induced him to explain what was bothering him and set in motion

the process by which he came to the District Attorney's Office.

45. Reyes does not attribute his decision to come forward to

having "found God," although he has stated that he has found

religious services to be helpful. He has consistently explained

himself in terms of his positive experiences in prison, the fact

that people have treated him decently despite the nature of his

criminal history, and his guilty reaction to seeing Wise.

46. Reyes' motives cannot be objectively proven or

*
Wise and Reyes had last been incarcerated in the same
institution from February to June of 1990, when both were in the
Adolescent Reception and Detention Center at Riker's Island.

Page 20 of 58
disproven. However, an extensive investigation has revealed no

evidence that the defendants themselves induced him to come

forward. There is no evidence of any connection between the

defendants and Reyes prior to their incarceration in 1989. Except

for a brief period in 1990 when he and Kharey Wise were in the

same jail, he has not been imprisoned with any of them.*

Moreover, none of them appeared to know of Reyes' claim until many

months after he first spoke with Corrections officials. In fact,

Kharey Wise was still incarcerated when Reyes made his claim, and

did not apply for conditional release until July 26, 2002.

Further, the one assurance Reyes sought when he first spoke with a

Corrections Officer was that he would receive protection. He

stated that he feared what Wise might do when he learned that it

was Reyes who committed the crime he was imprisoned for.

47. More important, information Reyes has provided about

himself and his history has consistently proven to be reliable and

accurate, both about matters related to the case and matters with

no direct connection to it. Reyes has also been candid, even with

respect to aspects of his history that might cast doubt on his

credibility.

48. For example, Reyes volunteered that he used to commit

robberies and larcenies on a regular basis, stealing jewelry,

*
Reyes himself picked a photograph of Michael Briscoe and
stated that he thought they might have been in the same jail early
in his incarceration. As noted above, Briscoe was one of the
individuals charged in connection with the incidents in the park.
Reyes' information was correct: the two were in the Adolescent
Reception and Detention Center at Riker's Island from March 5,
1990 to May 31, 1990, although at that point, Briscoe was there
for an unrelated arrest.

Page 21 of 58
money, and Walkmans. He frequently committed such crimes in

Central Park, often by the reservoir. He was able to recall the

details of several of his larcenies, and described the patterns he

followed with respect to robberies. Those activities were not

reflected in his records. Reyes also said that he had been

arrested on one occasion, for a robbery he committed with several

acquaintances in 1988, but that the case never went to court.

49. This information proved to be accurate. Investigators

were able to retrieve records reflecting the arrest Reyes spoke

about. They were also able to identify and locate individuals who

knew Reyes in the late 1980's, and who confirmed the truth of his

admissions. A number of people observed him with stolen property,

including both jewelry and Walkmans.

50. The investigation has uncovered no evidence that Reyes

knew any of the defendants or the others who were with them in

Central Park on the night of April 19. That fact has been

established by proof coming from two directions -- on the one

hand, from interviews with people who knew Reyes; and on the
other hand, from current and past interviews with the defendants

and their associates.

51. In 1989, Reyes was living on his own, working on an

informal basis in a bodega on 102nd Street, across from the 23rd

Precinct. Much of the time, he slept in a van belonging to the

bodega's owner; occasionally he stayed with a neighborhood family

who felt badly for him. Investigators from the District

Attorney's Office interviewed fourteen people who knew Reyes in

1989. A number of them saw him on a daily basis.

Page 22 of 58
 52. Many of those people describe Reyes as having been a

loner, whom they never saw in association with any young people

other than the two teenage sons of the family which occasionally

helped him. However, Reyes himself said in interviews that he

used to commit petty crimes, such as shoplifting, with some

neighborhood acquaintances. A number of those acquaintances were

located. All were from the 102nd Street area -- in their own

minds, a neighborhood distinct from the defendants'.* None knew

the defendants or their associates, and none ever saw Reyes with

the defendants or their associates. Two detectives from the 23rd

Precinct who knew Reyes from the bodega where he worked and saw

him regularly state that he appeared to be a "loner", and that

they never saw him with anyone other than those who frequented the

bodega.

53. In the defendants' own 1989 statements, they listed

those they knew who were in Central Park with them. None named

Reyes, by his real name or a nickname.* The same is true of the

twenty-four other individuals from the park who were interviewed

at the time. Raymond Santana, Kevin Richardson, and Michael

Briscoe were interviewed in 2002, before news had broken of Reyes'

information. They were shown photographs which included a picture

*
The defendants and their companions were from housing
complexes located somewhat farther north.
*
At the time of his arrest in 1989, Reyes told police that he
liked to call himself "Tony." However, in interviews with a dozen
people who knew him in 1989, all said that they knew his nickname
to be "Checo," and that they never knew him to be called "Tony."
In his 2002 interviews, Reyes said that "Tony" was an older boy he
admired when he was younger. He liked the name, and occasionally
called himself that.

Page 23 of 58
of Reyes, and evinced no recognition at all. The same is true of

a number of other individuals, present in the park in 1989, who

were reinterviewed in 2002.

54. In any event, in their 1989 statements about the crime,

three of the five defendants named or otherwise identified

everyone they said raped the jogger. Based upon the evidence, it

is a fair conclusion that none of the people they identified is

Reyes.**

55. Reyes' convictions arose from crimes he committed on

June 11, June 14, July 19, July 27, and August 5, 1989. The basic

facts of those crimes are as follows:

(1) On June 11, 1989, Reyes stalked, raped, robbed, stabbed,

and beat a twenty-four year old white woman in her apartment on

116th Street, between Park and Lexington Avenues. He used a knife

he got from the victim's kitchen, and he stole, among other

things, the victim's Walkman. The victim suffered a fractured

nose, two black eyes, and multiple areas of bruising, some of them

large, on her knees, her legs, her neck, and her flank. In

addition, the victim had two superficial stab wounds on her thigh,

one in her side, one on a finger, one near her left eyebrow, and

one under each eye.

(2) On June 14, 1989, Reyes raped, robbed, and stabbed to

death a twenty-four year old, light-skinned, blonde Hispanic woman

in an apartment on 97th Street, between Madison and Park Avenues.

**
Raymond Santana claimed that he left the scene after Kevin
Richardson had raped the jogger, while the crime was still
ongoing. Yusef Salaam's statement was incomplete, and he spoke of
two unidentified individuals having raped her.

Page 24 of 58
Again, Reyes used a knife he procured from the victim's kitchen.

(3) On July 19, 1989, Reyes stalked, raped, robbed, and cut

a twenty year old white woman inside an apartment on Madison

Avenue, between 95th and 96th Streets. Reyes brought a knife with

him. In addition to other property, Reyes took his victim's ATM

card and PIN number. He then tied her with extension cords in a

fashion which parallels the way the Central Park jogger was tied,*

so that he could go to the bank and withdraw money. Because he

had bound his victim, Reyes called 911 to summon help for her.

The victim suffered small, superficial cuts over one eye and under

the other.

(4) On July 27, 1989, Reyes stalked, robbed, and punched a

twenty-eight year old white woman in the hallway of her apartment

building on Lexington Avenue, at the corner of 95th Street. Reyes

was unarmed. The crime was interrupted by neighbors. In his 2002

interviews, Reyes stated that he intended to rape the woman.

(5) On August 5, 1989, Reyes stalked, raped, and robbed a

twenty-four year old white woman in her apartment on East 91st

Street, between Lexington and Third Avenues. Reyes was unarmed.

He took the victim's bank card, and forced her to give him her PIN

number. He intended to tie his victim, but she escaped before he

could carry his plan out.

56. In the course of his interviews, Reyes volunteered

*
Reyes used extension cords to tie his victim. He bound her
feet with one cord, used another to tie her hands, and a third to
gag her by wrapping a cord around her head and crisscrossing it
through her mouth. The cords were attached so that her hands were
raised in front of her face.

Page 25 of 58
information about other sex crimes he had committed, for which he

had never been arrested. One of the crimes he discussed was a

sexual assault which he said he had committed in Central Park. His

memory of the event was limited. He accurately recalled the exact

location of the incident, and thought it had occurred in the

daytime, but beyond that, he essentially knew only that he had

accosted a woman with the intention of raping her, and that the

crime had been interrupted by bystanders. He did not know when

the crime had taken place, although he believed it occurred in

1989.

57. The crime Reyes was describing was eventually

identified, and the victim and witness located. Reyes had told

the truth when he said that he committed the crime. He had in

fact attacked, beaten, raped, and robbed a twenty-six year old

white woman who had been exercising in the park near Lasker rink

and pool, at roughly the level of 107th Street. Reyes was

unarmed. A bystander intervened as the attack was ongoing, and

Reyes left the park, calmly, taking the victim's property with
him.

58. Substantial circumstantial evidence establishes Reyes'

identity as the perpetrator. Reyes knew, and in fact drew, the

precise location where the crime occurred. There are no records

of any other attack occurring there during the relevant time

period. The victim stated that the attacker identified himself as

"Tony." The victim and witness gave descriptions which are

similar to Reyes as he appeared at the time. The victim picked a

photograph resembling Reyes as a look alike in 1989. The witness

Page 26 of 58
recently identified a 1989 photograph of Reyes as looking "most

like" the attacker. The victim described the attacker as having

fresh stitches in a cut on the right side of his chin, and medical

records reflect that Reyes had received stitches in that location

the day before the incident. Reyes is not clear about whether the

incident he remembered was an attempted or completed rape, but

that may be explained by the fact that, according to the victim,

he apparently did not ejaculate.

59. The incident occurred on April 17, 1989, in mid-

afternoon, two days before the attack on the Central Park jogger.

The victim was badly beaten about the head. She had a large

hematoma on her forehead, abrasions to both knees, bite marks on

her left upper arm and neck, scratches over her neck, face, knees,

and back, and multiple bruises. In addition, her right ear was

bruised and swollen, and her right eye was bruised and showed

subconjunctival hemorrhages. She recalls that at some point her

attacker had his foot on her head. The victim was treated and

released, and the case was marked closed after initial efforts to
contact the victim were unsuccessful.

60. Reyes disclosed information about a second sexual

assault which he said occurred in a church located at Fifth Avenue

and 90th Street. Reyes remembered and described the scene

accurately and in detail, but again, could remember little about

the incident itself. In summary, he knew that he had accosted a

woman inside the church, dragged her down a staircase with the

intention of raping her, and then abandoned the sexual attack when

she claimed to have some sort of disease. He took money and

Page 27 of 58
jewelry from the victim, and left. He did not know when the crime

was committed, nor did he remember any other particulars of the

attack itself.

61. That incident, also, was eventually identified. It

occurred in the Church of the Heavenly Rest, across from Central

Park, on September 21, 1988. Again, Reyes' admission that he

committed the crime proved to be truthful. Reyes attacked,

choked, struck, robbed and intended to rape a twenty-seven year

old white woman. He was armed with a small knife, and he forced

the victim to disrobe, but was dissuaded from raping her when she

told him she had an infection. The victim suffered multiple

superficial scratches and bruises.* The complainant viewed

photographs on file with the Police Department, and picked no one;

Reyes' photograph was not on file. The case was then marked

closed.

62. Reyes was also questioned about some of the other crimes

for which he was convicted. The degree of detail with which he

could describe them varied: in some instances his recollections

were extraordinarily complete, particularly with respect to the

events leading up to and following his crimes, and the concrete

details of locations, pathways, and proceeds; in others, his

memories were more sketchy.

63. The following summarizes the essentials of Reyes'

account of his attack on the jogger:

*
The victim in the case was interviewed in 2002, but this
description of the crime is based on her 1989 account of what
occurred.

Page 28 of 58
 (1) Reyes states that he left the bodega where he worked and

headed for Central Park. It was likely he would commit some kind

of crime, but not necessarily a rape. He entered the park at

102nd Street, and he first saw the jogger as she proceeded north

on the East Drive, just south of the 102nd Street entrance to the

park. She was running in the jogging lane on the east side of the

road, wearing long black or navy blue jogging tights. They were

tight, and Reyes says he was attracted to her partly because he

could see her "butt."

(2) Reyes moved to the other side of the East Drive and

began to follow the jogger, with the intention of raping her. He

did not want her to sense or see him directly behind her, so he

began "zig-zagging" on the side of the road. He was waiting to

see whether she would take the long route around the park, heading

north until the road looped around, or the short route, cutting

across the 102nd Street transverse. She took the short route,

moving to the north side of the transverse road and heading west.

He crossed to the north side as well, still following her.

(3) Reyes states that he caught sight of a "stick" or branch

lying on the ground to the north side of the road. (In diagrams

and in a visit to the park Reyes has indicated the area he is

talking about.) He picked up the stick. The stick was

substantial; it required two hands to hold. Reyes then

accelerated to catch up to his victim.

(4) The jogger was wearing a headset, and she seemed to be

playing it loudly, as she did not hear his approach. Reyes came

up behind her and struck a heavy blow to the back of her head.

Page 29 of 58
Reyes does not know exactly where or how he hit her. He is left-

handed, but says he may well have struck her overhand, or from

some other angle. The jogger fell forward. Her Walkman fell to

the roadway. Reyes has diagrammed and shown investigators the

approximate point on the road where he says he struck her.

(5) Reyes says the jogger was conscious but clearly stunned

and incapable of fighting, and that he then dragged her off the

road. Initially, he dragged her over ground that was grassy, with
some grass "higher," and some grass "lower", into a "bushy" area.

He explains that by a "bushy" area, he means an area among the

trees, covered with dead leaves and sticks, which becomes more

overgrown in the summer; it was not overgrown at the time of the

incident. The area he dragged her into is to the north of the

roadway.

(6) Reyes does not know how he dragged the jogger. He

stopped when he reached a reasonably secluded spot. At that

point, she appeared to be recuperating from the original blow to

her head, because she was talking and protesting. He has

repeatedly described her as holding her hand up to the right rear

of her head, saying that she was bleeding. He states that he saw

blood on the right shoulder of her t-shirt.

(7) Reyes' account of what then took place inside the wooded

area is more fragmentary. He says that he cannot remember all the

details of what took place, and therefore cannot give a complete

narrative, but is positive about certain facts.

(8) Reyes states that he knows that he pulled off the

jogger's tights and shoes, and raped her. At some point, which he

Page 30 of 58
believes was after he raped her, she broke away from him and ran;

he says that he has an image of her running while naked from the

waist down. Somehow he brought her down, possibly by pulling her

shirt up over her head. Reyes had already beaten her in the spot

they were in originally, but at that point the violence escalated.

Reyes knows that he struck her in the face and head with a rock

and other things. He cannot specify what other things he used.

At some point in the course of the incident, he also used his

hands on her. He does not know how many times he hit her with the

rock, but knows that it was "more than a couple."

(9) Reyes says that he also knows that at some point, he

found the jogger's keys; he believes she had two, and he knows

they were in a black key case which zipped around and had Velcro

on it. He describes the case as being the sort that can be

attached to a belt, but says he does not recall where she wore it

since she had no belt. Reyes says he is particularly clear about

the keys because after he found them, he began demanding that the

jogger tell him her address. His intention was to burglarize her
apartment. She refused to give him the information. That, he

says, angered him, and caused him to escalate the level of

violence. He knows that the jogger had no money on her, although

he does not specifically remember searching for money.

(10) Reyes states that he threw her clothes somewhere.

However, he cannot remember what happened to her t-shirt. He says

that he recalls there being "something on her face" when he left,

and thinks somehow her t-shirt might have been over her head. He

does not have any memory of tying or gagging her. At various

Page 31 of 58
times, Reyes has also said that he may have moved her, or may have

turned her over.

(11) Reyes says that when he left the jogger, she was bloody

and unconscious, but still alive. He could hear her breathing,

making some kind of hard sound in her throat, as though something

had been broken.

(12) Reyes says that he tossed the rock he used somewhere,

but does not know where, or even whether it was in the immediate
area. He then made his way out of the wooded area in the same way

he had come in. When he reached the roadway, he saw that the

stick he had used on the jogger was still there; he picked it up

and threw it off to one side of the road or the other. He also

saw the jogger's headset, still lying where it had fallen. He put

it on, walked up onto the baseball fields to the south of the

road, and headed out of the park. At some point he tossed the

keys and case away. He is not sure when or where; it may have

occurred as he was leaving the park, but could have happened

earlier.
(13) Reyes came out at the 102nd Street entrance to the

park, which intersects with the East Drive at a point south of the

transverse road. There, he saw a detective he knew from the 23rd

Precinct named "Blondie," who was just entering the park.

"Blondie" was in a yellow cab with a partner whom Reyes did not

know. "Blondie" questioned him briefly about a commotion in the

park, and let him go on his way.

64. Reyes' version of events regarding the attack on the

jogger is corroborated by, consistent with, or explanatory of

Page 32 of 58
objective, verifiable evidence in a number of important respects.

The following sets forth some of the more significant points, in

summary form:

(1) Reyes is accurate about the direction the jogger was

coming from and the direction she was travelling in, and he

correctly describes her jogging tights, which were tight, black,

and ankle-length. He has also indicated that she may have been

wearing a white t-shirt, which she was.

(2) Reyes' assertion that he began his attack by striking

the jogger in the back of the head with a heavy branch is

consistent with and explanatory of medical and crime scene

evidence. The same is true of his description of the jogger's

mental status after the attack, of his recollection of her holding

her hand to the right rear of her head, and of his observation of

blood on her right shoulder. The jogger had a depressed skull

fracture, with a large, overlying laceration, in the right

parietal/occipital region of her head -- in other words, in the

upper right rear of her head. According to Dr. Hirsch, that

injury is fully consistent with a blow from a heavy branch, and

with the rest of Reyes' observations.

(3) Reyes maintains that the jogger was wearing a Sony AM/FM

headset, with colors on the dial. The jogger was in fact wearing

a headset when she was attacked. The Walkman disappeared, and

despite an extensive search, was never found. She does not recall

the make, but believes it may have had colors on the dial.

(4) Reyes is accurate in his description of the location

where the attack occurred, and of the terrain he covered in

Page 33 of 58
dragging the jogger into the woods. Crime scene photographs show

a distinct path of flattened groundcover in vegetation that is a

mixture of grasses and weeds of varying heights. The pathway is

sixteen to eighteen inches wide, and appears to be more consistent

with a single attacker dragging an inert form than with a group.

Vegetation to the side of the flattened path shows some sign of

being disturbed, but trial testimony established that that was the

result of crime scene personnel walking there. There are no other

indications of trampling in the immediate area.

(5) Reyes says that he took the jogger's keys, which he

found in a small, black case that zipped around and had Velcro on

it. He believes there were two keys. It was known in April of

1989 that the jogger's keys were gone; their disappearance was

unexplained. At the time, nothing was known about a case. In

2002, the jogger was asked about the possibility that she had a

case. She stated that she was inclined to say that she carried

her keys on a ring, but that she did own a dark green or black

case with Velcro on it. She does not think that it had a zipper.
It was the type of case that can be attached to a shoe. One of

the jogger's shoes, found at the scene, was untied, as it would

have been had a case been removed from it. The other shoe was

still tied, as would be expected if it were pulled off in the

course of a violent attack. The jogger also believes that she

carried two keys.

(6) Reyes' recollection that he threw the jogger's clothes

is consistent with the crime scene evidence. The location of her

tights, shoes, and one sock indicate that they were in fact

Page 34 of 58
thrown.

(7) Reyes says that he beat the jogger in the head

repeatedly with a rock. According to Dr. Hirsch, the medical

evidence shows five lacerations and a skull fracture in the left

temporal forehead area, all caused by blunt force trauma. He also

states that when he left her, she was unconscious but not dead.

He could hear her making a hard sound in her throat as she

breathed. His description of her condition is consistent with the

nature and extent of her injuries. The first officer on the scene

testified that when he arrived at the scene, he could hear

gurgling sounds coming from deep in her throat.

(8) Reyes maintains that he ran into "Blondie" on his way

out of the park, and had a brief conversation with him. "Blondie"

is a detective from the 23rd Precinct who knew Reyes. He used to

see him regularly at the bodega where he worked. He does not

remember whether he saw and spoke with Reyes in the park that

night or not. Circumstantially, however, it is clear that Reyes

did at least see "Blondie" on the night of the 19th. "Blondie"

confirms that he did in fact enter the park, and that he did so at

102nd Street, in response to reports about criminal activities in

the park. "Blondie" also confirms that he was in fact in a cab

and was with someone who was not his regular partner. To the

detective, Reyes was a harmless teenager. As he candidly reports,

if he had seen Reyes and spoken to him, he would not have

suspected him of criminal activity, and would have let him go.

The fact that Reyes did see "Blondie" tends to confirm that he was

not with the defendants. Given the nature of the criminal

Page 35 of 58
activities being reported, it seems likely that "Blondie" would

have stopped a group of teenagers.

65. Reyes account of events is the first that has suggested

an explanation for the existence of two areas of the crime scene

where it appeared that attacks took place. His specific

recollection that the jogger broke away only after he had raped

her is, however, probably not correct. The jogger's clothing was

found below the second site where an attack appeared to have

occurred. That pattern of evidence indicates that her jogging

tights were undoubtedly not pulled off her until she was at that

second location. A more plausible scenario than the one Reyes

recounts is that she broke and ran from him before the rape.

However, the inaccuracy of Reyes' account in that regard should be

evaluated in light of the passage of thirteen years.

66. Moreover, in evaluating the weight a jury would be

likely to place upon his testimony, his failure to recall all the

details of the incident must be placed in the context of his

memories of other events. It was Reyes who freely disclosed that

he had committed other sexual assaults, and the investigation

revealed that he was telling the truth in that regard. Yet when

the facts of those cases were uncovered, his memories of those

particular events proved to be incomplete.

67. Corroboration of Reyes' account of the crime is found

both in the pattern of his other sexual attacks and in some of

their specific facts. He consistently targeted and stalked

Caucasian women, or women who appeared to be Caucasian. His

crimes all involved conversation with his victims, either as a way

Page 36 of 58
of making initial contact or as a way of acquiring information

that would enable him to steal more property.* Frequently,

conversation or a search for property alternated with outbursts of

physical or sexual violence. All of his rapes or attempted rapes

also involved robbery. In particular, where a Walkman was

available, he took it. His beatings often focused on the head.

His claim that he demanded the jogger's address echoes the cases

in which he forced his victims to give him their PIN numbers. And

although he cannot remember doing it, it is clear that Reyes is

the person who tied the jogger with her own t-shirt. The manner

in which she was tied -- behind the head, through the mouth, with

the hands in front -- is strikingly similar to the way he tied

another of his victims.

68. One additional piece of physical evidence may also

corroborate Reyes' account. The victim had an oddly shaped wound

on her left cheek, resembling a cross, but with curved arms.

Reyes owned a ring, taken from him at the time of his arrest and

retained in the District Attorney's Office, on which the figure of

Christ is raised on the flat surface of a cross. Reyes, who is

left-handed, states that he used to wear the ring on his left

hand. The ring and photographs of the wound were examined at the

Office of the Chief Medical Examiner.* The number of variables

involved makes an exact comparison with the wound impossible.

*
Reyes makes no claim that this incident was initiated with
conversation, a fact explained by the circumstances in which he
targeted his victim.
*
No DNA could be recovered from the ring, which Reyes wore
until August 5, 1989.

Page 37 of 58
However, in the opinion of Dr. Hirsch, "The patterned injury over

the prominence of the victim's left cheek bone is consistent with

a left fist blow, striking at an acute angle, partially imprinting

the image of approximately half of the prominent parts of Mr.

Reyes' ring on her skin."*

Forensic Evidence

69. After preliminary DNA results were received from the

F.B.I. in May, the District Attorney's Office retained a private

laboratory to conduct additional forensic testing.

70. The laboratory performed further tests in connection

with those DNA samples which connected Reyes to the crime. The

tests provide additional corroboration of Reyes' account. The

private laboratory concurred with testimony given at the

defendants' trials that the DNA on the sock found at the Central

Park crime scene and the DNA on the cervical swab taken from the

victim came from the same person. Thus, Reyes' DNA matched both.

71. Moreover, the laboratory found additional, untested

semen on the sock, which it tested using technology not in

existence in 1989. That test established that Reyes was the

source of the DNA to a factor of one in 6,000,000,000 people. In

addition, mitochondrial DNA testing established that Reyes was

also the source of the pubic hair found on the sock in Central

Park.** In short, the DNA tests showed that Matias Reyes' claim
*
The People introduced expert testimony in the original trial
to the effect that the injury could have been caused by a rock or
a brick.
**
More technically, mitochondrial DNA tests only establish
that a sample came from a particular person or someone else in his
maternal line. In this case, for all practical purposes, the test

Page 38 of 58
that he raped the jogger was true, and confirmed that no one

else's DNA was present in the samples taken from the victim or the

evidence at the scene.

72. Efforts were also made to locate all of the physical

evidence which had been gathered at the time of the original

prosecution. Those efforts were partially successful, and every

item which could be found was retested. For purposes of this

motion, however, the relevant test results pertain to hairs found

on Kevin Richardson and the bloody rock found at the scene of the

attack, and to the blood found on that rock. The hair found on

Steven Lopez could not be located.

73. The three hairs found on Kevin Richardson were

reexamined following F.B.I. protocols for questioned hair samples.

The hairs were first re-examined microscopically and then

submitted for mitochondrial DNA testing. All had been mounted on

slides for examination in 1989.

74. The microscopic analysis of the hairs was performed by

Special Agent Douglas Deedrick, formerly Chief of the Hair and

Fibers Unit and currently Unit Chief of the Information and

Evidence section of the F.B.I. Agent Deedrick disagreed with the

expert opinion offered at the original trials. His conclusion was

that the hairs were not suitable for comparison, and could not be

used to link Richardson to the jogger. In his opinion, they were

too undifferentiated and had too few characteristics for a

meaningful comparison to be possible. He also disagreed with a

(..continued)
established that Reyes was the source of the pubic hair.

Page 39 of 58
characterization of one of the hairs as a pubic hair. In his

view, no determination could be made as to what type of hair it

was.

75. DNA was extracted from all three of the hairs found on

Richardson, and none of the DNA matched the victim's. However,

the official finding with respect to each of the hairs is that the

results are "inconclusive." The reasons differ.

(1) One hair was found to contain a mixture of DNA from two
different people. The jogger's DNA sequence was inconsistent with

any combination of that mixture. The opinion of the examiner is

that one of the DNA sequences probably resulted from contamination

at the time the hair was originally mounted on a slide.

Laboratory protocols require that when a mixture of DNA is found,

no conclusion will be drawn as to the source of the hair.

(2) A partial DNA sequence was extracted from a second hair

and compared to the jogger's, and seven "base differences" were

observed; only two base differences are required to declare an

exclusion. However, laboratory protocols require that results of

each test be verified in order to eliminate the possibility of

contamination. The verification is accomplished by performing a

second test in order to replicate the original results, before

conclusively excluding a possible source of the DNA. There was

insufficient DNA extracted from the second hair to permit such

verification to take place.

(3) The third hair had an intact DNA sequence extracted from

it, which showed one base difference from the jogger's

mitochondrial DNA. Two base differences are required in order to

Page 40 of 58
exclude a source, because single differences have been observed in

hairs taken from the same source. However, when such differences

occur in hairs from the same person, they are usually seen in

particular regions of the DNA known as "hot spots." The

difference observed between the jogger's hair and the third hair

tested did not occur in a "hot spot". Additional samples of the

jogger's hair were tested in order to see if the same base

difference appeared. It did not. Both those factors reduce the

likelihood that the questioned hair originated with the jogger,

but she cannot be excluded as a source to a reasonable degree of

scientific certainty.

76. The bloody rock found at the scene was also submitted

for examination, and a limited DNA profile was obtained. That

profile showed that the blood was female human blood, but

inconsistent with the jogger's DNA profile. However,

contamination cannot be excluded as a possibility. The rock has

been handled by a number of people, and has not been stored in a

manner which would ensure the integrity of the original DNA. If

the original DNA has degraded, the profile raised may be DNA from

an unknown person deposited over the original DNA.

77. The hair fragments found on the rock were also submitted

for testing. As with the hairs found on Richardson, they were

first examined microscopically by Special Agent Deedrick. He

found them unsuitable for comparison, describing them as

fragmentary and of limited value. In any event, the original hair

samples from the jogger could not be located. Because hair

changes over time, samples taken thirteen years later do not

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provide a suitable basis for comparison, even against standards of

high quality. Accordingly, no new microscopic comparison could be

made between the jogger's hair and the evidence.

78. Only one of the hair fragments was suitable for testing.

The other fragments were too small. The fragment tested yielded

only a partial DNA sequence, with a number of differences from the

jogger's DNA. However, the size of the sample once again

precluded verification through an additional test, and as a

consequence no conclusive result was provided.

THE NEWLY DISCOVERED EVIDENCE CLAIM

79. Under Criminal Procedure Law 440.10(1)(g), newly

discovered evidence must meet six criteria in order to justify the

vacatur of a conviction: (1) it must be such that it would

probably have resulted in a verdict more favorable to the

defendant if it had been received at trial; (2) it must have been

discovered since the trial; (3) it must be such as could not have

been discovered before the trial by the exercise of due diligence;

(4) it must be material to the issue; (5) it must not be

cumulative to the issue; and (6) it must not merely impeach or

contradict the former evidence. People v. Salemi, 309 N.Y. 208,

216, quoting People v. Priori, 164 N.Y. 459, 472 (1900).

80. The newly discovered evidence in this case consists of

the account of events provided by Matias Reyes, who states that he

alone attacked and raped the Central Park jogger; DNA test

results which conclusively establish that Reyes was the sole

source of semen found on a sock at the crime scene and a cervical

swab taken from the victim, as well as of a pubic hair found on

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the same sock; the record of prior, similar attacks committed by

Reyes, including an assault and rape committed in Central Park two

days before the jogger attack; and scientific test results

undermining the probative value of evidence introduced in the

defendants' trials. All of that evidence meets the criteria set

forth in the statute.*

81. The vacatur of a conviction, however, requires not

merely that new evidence exist, but that it be ". . . of such a

character as to create a probability that had such evidence been

received at the trial the verdict would have been more favorable

to defendant." Criminal Procedure Law Section 440.10(1)(g). In

determining whether newly discovered evidence would probably

change a verdict, the evidence is not evaluated in a vacuum, but

in light of the evidence contained in the record on appeal. See

People v. Salemi, 309 N.Y. at 218-19; see also, People v.

Maynard, 183 A.D.2d 1099 (3d Dept. 1992).

82. In other words, an assessment of the likely impact of

newly discovered evidence requires an honest appraisal of the

strength or weakness of the case originally presented by the

People. The defendants' statements in this case were sufficiently

persuasive to result in the convictions of all five defendants on

at least some of the charges against them, and, for that matter,
*
As already noted, the People requested that the F.B.I.
laboratory reexamine the hair evidence introduced at the
defendants' trials before having it tested for mitochondrial DNA,
and the F.B.I. examiner disagreed with the original technician's
findings. However, his opinion does not qualify as newly
discovered evidence within the meaning of C.P.L. Section 440.10
since counsel could, with due diligence, have sought a second
microscopic analysis at the time of the original proceedings.

Page 43 of 58
persuasive enough to bring about those convictions before two

separate juries. However, the confessions also had serious

weaknesses.

83. Perhaps the most persuasive fact about the defendants'

confessions is that they exist at all. While all of the

defendants began by denying knowledge of the attack, each

ultimately made himself an accomplice in a terrible crime.

84. In that regard, it is important to note that, with the

exception of the unrecorded statement made by Yusef Salaam, each

of the statements cast the speaker in a relatively minor role, and

none of the defendants admitted that he personally raped her.

Kevin Richardson stated that he grabbed at the jogger, but

equivocated about it and, at least on video, stopped short of

saying that he did so to assist in an assault or rape. Antron

McCray said that he kicked the jogger and lay on top of her, but

did not penetrate her. Raymond Santana finally stated that he

"felt her tits." And Kharey Wise eventually said that he held and

fondled her leg. Yusef Salaam, in his unrecorded statement, went

furthest in ascribing culpability to himself, by saying that he

struck the jogger with a pipe at the inception of the incident.

85. In and of itself, the fact that each defendant minimized

his own involvement would not be startling or necessarily

significant; defendants certainly lie, even when confessing. On

the other hand, it arguably makes the claim that the defendants

made false admissions more plausible, by adding weight to their

contention that, for whatever reason, each spoke about the crime

with a view toward becoming a witness rather than a defendant. In

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that sense, it is an aspect of the confessions to be considered

here.

86. The significant weaknesses in the defendants' statements

lie in the details they provide in describing the attack on the

jogger. Taking the statements individually, those details appear

to give them power. But a comparison of the statements reveals

troubling discrepancies. Using their videotaped statements as the

point of comparison,* analysis shows that the accounts given by the

five defendants differed from one another on the specific details

of virtually every major aspect of the crime -- who initiated the

attack, who knocked the victim down, who undressed her, who struck

her, who held her, who raped her, what weapons were used in the

course of the assault, and when in the sequence of events the

attack took place.

87. Thus, for example, on the issue of who actually knocked

the jogger to the ground, Kevin Richardson said Antron, Raymond,

and Steve did it; Antron McCray said everyone charged her;

Raymond Santana said Kevin did it; Yusef Salaam said he did it;

and Kharey Wise first named Raymond, and then named Steve.

88. Similarly, as to who struck the jogger in the course of

the attack, Kevin Richardson alleged that only Michael Briscoe hit

her, and that he hit her only with his fist, in the face. Raymond

Santana said that Steve smacked her, and then struck her in the

face with a brick. Antron McCray stated that everyone was hitting

and stomping her, and that a tall, skinny, black male struck her
*
Since Yusef Salaam made only one, unrecorded statement, that
statement is used for this analysis.

Page 45 of 58
in the ribs and head with a pipe. Yusef Salaam said that he

himself hit her with a pipe, and that someone else used a brick.

Kharey Wise first said that Steve slapped her in the face, that

someone cut her legs with a knife, and that Kevin used a

"handrock"; he then said that Steve slapped her, punched her in

the face, and cut her legs with a knife, and that Kevin, Steve,

and Raymond punched her in the face and hit her with bricks.

89. Likewise, on the issue of who raped her, Richardson

named Antron, Raymond, and Steve. McCray identified a tall,

skinny black male, a Puerto Rican with a black hoodie, Clarence,

and Kevin, and said that he himself simulated having sex with her.

Santana claimed that Kevin raped her, after which Santana left the

park. Salaam named Kevin, Kharey, and a couple of unknown males.

And Kharey Wise named Steven, Raymond, and Kevin. Kevin

Richardson's is the only name common to all the statements, with

the exception of his own. It was, however, Richardson who first

implicated members of the group in the rape, providing a possible

motive for others to accuse him.

90. There are certainly portions of the statements made by

the defendants that are consistent with the evidence presented at

trial. There was, for example, testimony to the effect that

certain of the jogger's injuries could have been caused by a pipe,

a brick, or a rock, weapons that were named in some of the

statements. The jogger had bruising which could have resulted

from the kicking or blows some defendants described. Antron

McCray accurately stated that the jogger wore a white shirt.

91. That said, it is nonetheless true that in many other

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respects the defendants' statements were not corroborated by,

consistent with, or explanatory of objective, independent

evidence. And some of what they said was simply contrary to

established fact.

92. None of the defendants, for example, related where the

jogger was coming from, what direction she was running in, or how

they happened to catch sight of her. None offered specific or

accurate descriptions of the area where she was attacked, the

terrain, or the crime scene. Yusef Salaam stated that he struck

the jogger on the head with a pipe. He did not say where on the

head, but his statement could explain the bloodstains on the road

and the injuries to the back of her head. None of the others,

however, gave an account which would adequately explain either.

Only Kharey Wise said anything that would explain the dispersal of

physical evidence and the indications that attacks occurred at

more than one site, and Wise had been taken to the scene prior to

his videotaped statements. None of the defendants mentioned the

jogger's Walkman, although several mentioned John Loughlin's

Walkman in the statements they made about him. None said a word

about her keys. None said anything about a search for money,

although the insole pulled out of the victim's jogging shoe

certainly suggests that someone looked for it.

93. Some of what the defendants said is simply wrong.

Kharey Wise, for instance, declared that the jogger's clothes had

been cut off, and that her legs had been cut with a knife. Her

clothes were not cut off, and there were no knife wounds on the

jogger; in fact, the prosecution affirmatively elicited testimony

Page 47 of 58
to that effect at trial. Likewise, Kevin Richardson said that her

bra was ripped off, whereas in fact it was still on her when she

was found. Raymond Santana described her as being naked during

the incident, and others said she was naked when they left,

although she was found with her jogging bra still on and her t-

shirt tied around her head.

94. Other statements the defendants made are simply not

corroborated. For example, several defendants spoke of a brick

being used as a weapon in the attack. But the only brick actually

removed from the crime scene had no blood or other forensic

evidence that would confirm its use as a weapon.

95. More importantly, the defendants' statements about the

rape could not be corroborated by DNA evidence. Each defendant,

in his statement, minimized his participation in the rape, and

none acknowledged having had intercourse with the victim.

However, all but Raymond Santana claimed to have seen multiple

individuals raping her. Despite that, the DNA of only one person

was found. That required the jury to believe that, in a gang of

teenaged rapists, only one ejaculated.

96. Moreover, although the prosecution argued that the DNA

must have been left by one of the defendants' accomplices, that

argument presented difficulties of its own. For example, Kevin

Richardson and Kharey Wise purported to name everyone who had

raped her, and none of the people they named proved to be a DNA

match.

97. Perhaps most significant, none of the defendants

accurately described where the attack on the jogger took place.

Page 48 of 58
With the exception of Kharey Wise, who had been to the scene,

statements by all of the defendants describe events in such a way

as to place the attack at or near the reservoir, at varying points

in the sequence of events that actually occurred there. The

defendants were not similarly confused about the locations of the

other crimes they described.

98. An additional issue is raised by the other incidents

which took place in the park. For while the nature and locations
of those incidents made it seem logical to believe that the

defendants had attacked the jogger, the timing of events made it

hard to understand when they could have. Shortly after their

initial entry into the park, the larger group of which the

defendants were a part temporarily split up. As a result, not all

of the defendants participated both in the incidents that occurred

along the East Drive and in the attacks at the reservoir; but at

least some of them did. Given the times when each of those events

were estimated to have occurred, it is difficult to construct a

scenario that would have allowed the defendants the time to

interrupt their progression south, detour to the 102nd Street

transverse, and commit a gang rape.

99. All of these issues were apparent at the time of trial.

Counsel had access to the same confessions, the same objective

evidence, and the same timeline that the prosecution did, and were

free to exploit the weaknesses in the People's case to whatever

extent they were able to do so. It could be, and it was,

credibly, honestly, and persuasively argued by the prosecution

that in any gang attack, discrepancies among accounts and

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confusion about details are not unusual. Indeed, given the

involvement of a number of people and the violence of the events

at issue, some level of genuine confusion is probably inevitable.

In this case in particular, those arguments were bolstered by the

fact that the crimes occurred at night, that the lighting was

poor, and that the defendants were involved in a number of

incidents.

100. Nonetheless, the fact that these weaknesses in the

confessions exist gives added weight to the newly discovered

evidence in this matter, and increases the probability that that

evidence would result in a different verdict.

101. The probative value of the only forensic evidence that

connected the defendants to the attack, the hairs found on Kevin

Richardson, was, by its nature, weak to begin with. It has been

diminished further by the tests performed in 2002. And the

specific argument the prosecution made -- that a particular rock

found at the scene had been used in the attack -- has also been

undermined, although the most reasonable interpretation of the new

blood evidence is probably contamination.

102. The difficulties inherent in the passage of time and

the small size of the hair samples in existence made it impossible

to obtain definitive DNA results. But with respect to each of

those samples that was large enough to test, a jury would hear

expert testimony that the DNA which could be extracted from the

evidence did not match the jogger. Those results do not exclude

the jogger as a source to a reasonable degree of scientific

certainty. Their effect, however, would be to undermine the

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jury's confidence in the only evidence other than the defendants'

statements which showed contact between the victim and her alleged

rapists.

103. Most important, the jurors who originally heard the

evidence were presented with no persuasive alternative theory of

the case to consider. Certainly, no one would have thought that

as the defendants and their group were making their way through

Central Park, a serial rapist was also at large. The newly

discovered evidence provides incontrovertible proof that he was.

104. A self-confessed and convicted serial rapist -- who

habitually stalked white women in their 20's; who attacked them,

beat them, and raped them; who always robbed his victims, and

frequently stole Walkmans; who tied one of his victims in a

fashion much like the Central Park jogger; who lived on 102nd

Street; who beat and raped a woman in Central Park two days

before the attack on the transverse; whose DNA was the only DNA

recovered inside and alongside the victim; whose narrative of

events is corroborated in a number of significant ways; who had

no connection to the defendants or their cohorts; and who

committed all his sex crimes alone -- has come forward to say that

he alone stalked, attacked, beat, raped, and robbed a white woman

in her 20's, who was set upon on the 102nd Street transverse, was

missing her Walkman, and was left tied in a way that has never

before been explained. Had this evidence been available, the

defendants' attorneys would have had an arguably compelling

alternative to the People's theory of the case.

105. It is the People's position that, as to those verdicts

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which arose specifically from the attack on the Central Park

jogger, the newly discovered evidence in this case meets the

standard set forth in Criminal Procedure Law Section 440.10(1)(g):

it "...is of such a character as to create a probability that had

such evidence been received at trial the verdict would have been

more favorable to defendant."

106. The newly discovered evidence at issue here relates

directly only to those charges which arose out of the attack on

the jogger herself. Factually, it has no relationship to the

other crimes -- riot, robbery, and assault -- which occurred in

Central Park on the night of April 19, 1989. Nonetheless, all of

the defendants use the newly discovered evidence provided by

Matias Reyes as the basis for a request that the court vacate

their other convictions as well.

107. The papers submitted on behalf of Kharey Wise, Kevin

Richardson, Antron McCray, and Raymond Santana do not specify a

legal basis for that request. Yusef Salaam argues that the nature

and gravity of the charges involving the female jogger prejudiced

the defendants' ability to receive a fair and dispassionate trial

on the other charges against him.

108. Under the extraordinary circumstances presented by this

case, the People are constrained to consent to the defendants'

motions with respect to the other charges of which they were

convicted.

109. The other crimes committed on April 19 were grave and

inexcusable -- unprovoked attacks on strangers, apparently

undertaken for the fun of it, which left some terrorized, two

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knocked into unconsciousness, and one seriously injured.

Nevertheless, as the evidence was presented at trial, the attack

on the female jogger was of a far greater order of seriousness.

The People's theory was that she was set upon by a number of young

men, gang-raped by two or more of them, kicked and pummeled by the

group, and beaten about the head with a pipe, a brick, and a rock.

Had she been discovered sooner, her injuries might well have been

less serious in their effects; but she was not, and by the time
she was found, she was close to death. The People introduced

photographs depicting her injuries, called a pathologist to

describe and characterize them one by one, and presented medical

evidence fully describing her condition thereafter; she remained

comatose for some time, endured a lengthy period of

rehabilitation, and suffered permanent impairment as a result of

the attack.

110. It is commonplace for defendants to be charged in a

single indictment with crimes of very different levels of gravity.

The law permits it, and correctly presumes that juries can and
will follow instructions requiring that they weigh evidence of

guilt as to different counts separately. Thus, in and of itself,

the relative seriousness of the jogger attack plainly would not

merit setting aside the juries' verdicts as to other charges.

111. In this case, however, other factors must also be

weighed. The crimes the defendants were charged with were not

widely separated by time or location, either from each other or

from the attack on the jogger; all occurred within a single hour,

at the northern end of Central Park. In effect, all were

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considered to be part of a single incident -- a rampage in the

park, as is reflected in the fact that the defendants were charged

with Riot in the First Degree.

112. In fact, the prosecutor argued to the jurors in the

trial of Kharey Wise and Kevin Richardson that they should not

lose sight of the "overall pattern of the behavior...[as] this

group continued through the park for a period of approximately an

hour attacking one after another after another person." This, it

was fairly and convincingly argued, showed that the group acted

with a joint purpose, that they were "an entire group acting

together in one violent outburst of destruction, of beating, of

assaulting." Similar references were made in summation in the

earlier trial of McCray, Salaam, and Santana.

113. It was logical for the People to suggest that the

defendants' culpability and criminal intent could be inferred from

the pattern of conduct engaged in by the group of which they were

a part. This would have been an inescapable inference for the

jurors in any event. But the new evidence detailed above would,
if credited, call into question the defendants' involvement in the

most horrific crime in the pattern of incidents in the park -- and

indeed, the involvement of the larger group as well. Accordingly,

it would likely have had a significant bearing, in the jurors'

minds, on the defendants' culpability for those other crimes as

well.

114. Moreover, the trial evidence as to the other charges,

like the evidence as to the attack on the female jogger, consisted

almost entirely of the defendants' statements. The distinctive

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logo on Kevin Richardson's jacket was described by one of the

tandem bikers, and he and Santana were apprehended on the

outskirts of the park; but the People's proof was limited by one

fundamental fact: none of the victims could identify any of the

defendants.

115. Just as the other incidents in the park cannot be

considered separately from the rape of the jogger, neither can the

defendants' statements about those events. In the case of at

least two defendants, Richardson and Salaam, the process of

questioning about the rape and the process of questioning about

other crimes overlapped and intertwined. And with a single

exception, all of the substantial written or recorded statements

made by Richardson, McCray, Wise, and Santana concern the attack

on the female jogger as well as the other crimes of that night.

That lone exception involves Santana, whose first substantial

written statement deals only with other events; but just an hour

and twenty minutes after he signed it, after further, continuous

questioning, an addendum described the jogger attack.

116. Thus, the admissions concerning the other crimes were

contained in the same written and recorded statements as the

admissions concerning the rape, and were largely obtained as part

of the same process of questioning. As a consequence, the newly

discovered evidence would probably raise questions about the

reliability of those admissions similar to the questions raised

about the defendants' confessions to rape. There is some

testimony that, in certain instances, admissions about other

criminal incidents were made substantially before and apart from

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any statements about the rape. But that testimony alone, absent

independent corroboration, would not have been sufficient to allay

concerns about the defendants' confessions raised by the newly

discovered evidence.

117. In sum, there was no significant evidence at trial

establishing the defendants' involvement in the other crimes of

which they stand convicted that would not have been substantially

and fatally weakened by the newly discovered evidence in this

matter. In the original investigation, a number of individuals

identified one or more of the defendants Richardson, McCray,

Santana, and Salaam in connection with the attack on John

Loughlin, and statements also placed Wise at the scene of earlier

incidents. In interviews in 2002, both Richardson and Santana

candidly acknowledged involvement in criminal incidents that

occurred on April 19, while steadfastly asserting their innocence

of rape. But none of this additional evidence was before the

trial juries. Accordingly, it cannot be considered in evaluating

the newly discovered evidence claim.

118. Assessing the newly discovered evidence, as we are

required to, solely in light of the proof introduced at the

earlier trials, we conclude that there is a probability that the

new evidence, had it been available to the juries, would have

resulted in verdicts more favorable to the defendants, not only on

the charges arising from the attack on the female jogger, but on

the other charges as well.

119. The final determination of this motion must, of course,

be made by the Court. Should the Court, as requested by the

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parties, vacate the convictions, the People will move the Court to

dismiss the indictments. Under all the circumstances, no purpose

would be served by a retrial on any of the charges contained in

the indictment.

WHEREFORE, for the reasons stated, the People consent to

the relief requested and recommend that the Court vacate the

defendants' convictions in their entirety.

DATED: New York, New York

December 5, 2002

___________________________
NANCY E. RYAN
Assistant District Attorney
Chief of the Trial Division

Page 57 of 58
---------------------------------------------------------------------------
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 58
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THE PEOPLE OF THE STATE OF NEW YORK

-against-

KHAREY WISE, KEVIN RICHARDSON, ANTRON MCCRAY,

YUSEF SALAAM, and RAYMOND SANTANA,

Defendants.

---------------------------------------------------------------------------

AFFIRMATION IN RESPONSE TO MOTION

TO VACATE JUDGMENT OF CONVICTION

INDICTMENT NO. 4762/89

---------------------------------------------------------------------------

Robert M. Morgenthau
District Attorney
New York County
One Hogan Place
New York, New York 10013
(212) 335-9000