Full opinion text
MEMORANDUM AND ORDER TRAGER, District Judge. Petitioner Ramon Espinal (“Ramon” or “petitioner”) is currently serving a sentence of 58 and 1/3 years to life, following his conviction at trial on two counts of murder in the second degree, for the shooting deaths of Wilfredo Garcia (“Wilfredo”) and Alberto Montanez, and one count of attempted murder in the second degree, for the shooting of Jose Cortes (“Cortes”). Petitioner was also sentenced to a concurrent sentence of 5 to 15 years for criminal possession of a weapon. The events under review are not recent history. The shootings took place two decades ago, on the night of June 21, 1988 in Williamsburg, Brooklyn. Ramon was arrested a year later, on June 19, 1989. This case first went to trial in January 1991. The first jury was unable to reach a unanimous verdict, and a retrial was ordered. The retrial commenced on March 25, 1991, and ended with a guilty verdict after three days of jury deliberation. Ramon was sentenced on April 29, 1991. Since that time, he has engaged in a series of direct and collateral attacks on his conviction in the state and federal courts. This case is now before the court following petitioner’s June 5, 2006 objections to the Corrected Report and Recommendation issued by Magistrate Judge Roanne L. Mann on May 23, 2006 (the “R & R”). Judge Mann has recommended that Ramon Espinal’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied, and that his ease be dismissed. Petitioner objects on the ground that he received ineffective assistance of counsel that falls below the standard permitted by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner also claims that he is actually innocent of the crimes for which he is currently imprisoned and that he is entitled to habeas relief on a free-standing claim of actual innocence. The Second Look Program of Brooklyn Law School was granted leave to appear as amicus curiae on June 28, 2006. The Second Look Program has argued for petitioner’s actual innocence, principally through its November 15, 2005 Memorandum to the Brooklyn District Attorney’s office (the “Second Look Report”), in which it documented its investigation into this case and offered evidence to support petitioner’s alibi claims. The evidence presented at trial was more than sufficient to allow a rational juror to find petitioner guilty of these crimes, and petitioner has failed to overcome this legal presumption of guilt. However, as explained below, the record viewed as a whole raises serious doubts about the defendant’s actual guilt. Still, the record as it stands appears to be insufficiently strong to prove actual innocence to the degree that would be required should such a freestanding claim exist. House v. Bell, 547 U.S. 518, 555, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (discussing the evidentiary showing that would be required if actual innocence were a cognizable claim and declining to decide whether such a claim exists). Nonetheless, petitioner has pointed to a constitutional claim supported by the record that cannot be dismissed as harmless. Principally, trial counsel’s failure to explore and present available evidence — particularly counsel’s failure to investigate a redacted police report that could have corroborated petitioner’s alibi — undermines confidence in the reliability of petitioner’s conviction at trial. Unfortunately, the witness identified in the redacted report, David Garcia (“David”), is now dead. See July 17, 2007 Tr. at 9. As a result, a clear picture of these incidents may never emerge. But petitioner has sufficiently established that his trial counsel was ineffective, and that he was prejudiced by that ineffectiveness, to substantiate his claims under Strickland. Accordingly, for the reasons explained below, Ramon Espinal’s petition for a writ of habeas corpus is granted. Background A detailed recounting of the facts and procedural history of this case can be found in the R & R at pages 1 to 23. Accordingly, only a short summary is recounted here. Record citations are provided for those facts which do not appear, or which are recounted somewhat differently, in the R & R, or which are relevant to petitioner’s objections. (1) Petitioner’s Arrest for the June 21, 1988 Shootings Petitioner’s conviction stems from three shootings near the corner of South 1st Street and Bedford Avenue, in Williams-burg, Brooklyn, on June 21, 1988. The victims included Alberto Montanez, a 15-year old boy who was shot in the face and subsequently died; Wilfredo Garcia, who was shot twice in the back and died about a week after the incident; and Jose Cortes, who was shot once in the right leg. Petitioner was alleged to have been acting in concert with his brother, Reynaldo Es-pinal. Both Ramon and Reynaldo fled together to the Dominican Republic after the shootings. Although Ramon returned to New York the following year, and was arrested soon thereafter, Reynaldo has apparently resided in the Dominican Republic ever since. The record shows that police from the 90th Precinct immediately responded to these shootings, and that Detectives Stephen Chmil (“Chmil”) and Peter Vitulli (“Vitulli”) immediately commenced an investigation. Petitioner, however, objects to the R & R’s implication that Ramon Espinal was “immediately” identified as a suspect by police. Pet.’s Obj. at 2-5. Petitioner notes that on the night of the shootings police were canvassing local hospitals looking for “a male hispanic, light skinned, 5' 9", approximately 20 years of age seeking treatment for a gunshot wound.” See Pet’s Obj. at 2. Accordingly, petitioner argues that police were only initially seeking his brother Reynaldo, who fit that description. Nonetheless, it remains clear that Ramon was identified as a suspect early in the police investigation. The day after the June 21, 1988 shootings, police interviewed the superintendent of the apartment building at 155 South Second Street, where the Espinal family resided. The super told police that petitioner’s mother, Maximina Espinal, had told the super’s wife that her sons, Ramon and Reynaldo Espinal, were said to have killed three people at the corner of Bedford Avenue and South Second Street, and that they had left for the Dominican Republic. On June 23, 1988, Detectives Chmil and Vitulli went to John F. Kennedy Airport and confirmed that two passengers with the name “R. Espinal” had purchased tickets in cash for a flight to Santo Domingo that departed some six or seven hours after the shootings. Accordingly, the police actually had reason to believe that Ramon was involved prior to June 24, 1988, when an unidentified individual told the detectives that he saw both Ramon and Reynaldo Espinal pull up to the corner in a red car on the night of the shootings. See R & R at 4; Pet.’s Obj. at 4. Ramon was arrested for these shootings the following year, on June 19, 1989, by Officer Louis Silva of the 67th Precinct. Officer Silva was pursuing Reynaldo Espi-nal in connection with a separate homicide investigation. In the course of that investigation he discovered Ramon hiding in a rear bedroom closet in the Brooklyn apartment of Reynaldo’s former girlfriend. Several hours later, at the 90th Precinct, Detectives Chmil and Vitulli interviewed petitioner, who was then 17 years old, after advising him of his Miranda rights. In the police report filed after the interview (known as a “DD-5 report”), Detective Chmil summarized Ramon’s statement as follows: Last year when the two guys were shot at South 1 & Bedford Ave. I was driving a red Firebird in the area of South 4th & Havemeyer. I saw my brother come running up South 4th St. He got in the car and told me some guy was shooting at him at South 1 & Bedford Ave. and the guy shot him in the hand, it was wrapped in a bandage. He told me he shot the guy that shot him in the hand. We then drove home to 366 Decatur St. The next day we left the country for Santo Domingo. About eight months ago I came back to New York. DD-5 report for Ramon Espinal, attached as Second Look Rep. Ex. A. At approximately 4:00 a.m. the following morning, petitioner was interviewed on videotape by Assistant District Attorney Allan Lewis and Detective Vitulli. Ramon, who was again given Miranda warnings, reiterated the substance of his statement to the Detectives. He again stated that he had encountered his brother near the corner of South 4th and Havemeyer after the June 21, 1988 shootings had taken place. During this interview, Ramon added that he was drag racing down Havemeyer when he saw his brother, and that the drag race was against two friends whom Ramon had encountered at a nearby gas station earlier that evening. See transcription of June 20, 1989 interview with Ramon Espinal, attached as Second Look Rep. Ex. A. (2) Petitioner’s Trial and Conviction At a pretrial suppression hearing, privately retained defense counsel Barry Krinsky (“Krinsky”), moved unsuccessfully to suppress petitioner’s post-arrest statements on the grounds that they were the tainted product of a warrantless arrest without probable cause and that the statements were not knowing or voluntary. Subsequently, petitioner went to trial in January 1991 before Justice Harold Fertig of the New York Supreme Court, Kings County. This jury was unable to reach a unanimous verdict. According to Krinsky, the first trial jury split ten to two in favor of acquittal. H. Tr. at 168-69. Ramon’s retrial began on March 25, 1991, with Justice Melvin S. Barasch presiding. On retrial, the prosecution presented a somewhat modified theory of the case. During Ramon’s first trial, the prosecution argued that Ramon was a shooter along with his brother Reynaldo. See Tr. at 237. The prosecution witnesses at the first trial included Edwin Rodriguez, who testified that he saw Ramon and Reynaldo shoot Wilfredo Garcia and two other individuals. Statement of Edwin Rodriguez, dated May 20, 2005, attached as Second Look Rep. Ex. B (“Rodriguez Statement”) at ¶ 2. According to Krinsky, Rodriguez’s testimony was “riddled with inconsistencies,” and the jurors who voted for acquittal at the first trial were strongly influenced by Rodriguez’s lack of credibility. H. Tr. at 170. Rodriguez did not testify at the second trial, and he now claims that he lied at the first trial in order to receive a reduced sentence on a then-pending robbery case. Rodriguez Statement ¶ 3. At the retrial, lacking any eyewitnesses who claimed to have seen Ramon shooting, the prosecution instead argued that Ramon should be found guilty of these murders because he was acting in concert with his brother Reynaldo. See Tr. at 240, 702-04. On summation, the prosecution also suggested that the evidence could reasonably support an inference that Ramon was not only armed but was also a shooter. See Tr. at 705-07. At the second trial, the prosecution presented two eyewitnesses to the shootings. The first, Anthony Jose Garcia, testified that he saw both Ramon and Reynaldo Espinal take part in the shootings. Anthony Garcia previously sold crack cocaine for Ramon and Reynaldo Espinal at the corner of South 1st and Bedford Avenues, but had stopped working for them after a fist fight with Ramon over comments made to Garcia’s girlfriend. Tr. at 453-54. At the time of his testimony, Garcia was serving a sentence of six months of “basic training” in a military-style boot camp program for selling drugs and violating probation. Garcia testified that he saw Reynaldo Espinal and Wilfredo Garcia arguing about neighborhood drug sales on the afternoon of June 21, 1988. Id. at 461-62. That evening, Garcia saw Ramon and Reynaldo cruising around the neighborhood of South 1st Street and Bedford Avenue in a red Trans Am. Id. at 464. After they drove past Wilfredo Garcia and Jose Cortes walking toward South 1st and Bedford, Ramon and Reynaldo parked their car and got out holding firearms. Id. at 469-70. Garcia saw Reynaldo open fire toward Wilfredo and Jose Cortes “without saying a word.” Id. at 469. Garcia testified that he did not see Ramon open fire, but that Ramon was instead standing behind Reynaldo with his gun “pointed toward the floor.” Id. at 471. Garcia then heard another shot and saw a “young kid,” Alberto Montanez, collapse. Garcia did not see who shot Montanez. Id. at 472-73. He then observed the Espinal brothers run back to their car and drive away, with petitioner in the driver’s seat and Reynaldo as a passenger. Id. at 474. On cross-examination, defense counsel introduced Garcia’s prior statement to the prosecutor on January 18, 1991, at the time of the first trial, stating that Ramon had nothing to do with the shootings and that Ramon and his red car were not at the scene of the shootings. Id. at 545. On redirect, over a defense objection, id. at 423-24, Garcia explained that he had earlier changed his story to prosecutors only after having been placed in a holding cell with Ramon on several occasions. Id. at 551. During one such encounter, Ramon told Garcia that he was on trial for a homicide that Garcia “knew about.” Id. at 552. Garcia testified that, in order to avoid being identified as a prosecution witness, and out of fear for his safety and that of his family, he agreed to assist Ramon with his defense. Id. at 552-53. Garcia then recanted his prior statement to prosecutors, and provided the alibi story that Ramon had told him while they were in a holding cell together Id. Following this testimony, the court advised the jury to disregard the fact that Ramon had been in prison when considering his guilt or innocence, and that this testimony was offered solely as evidence of Garcia’s state of mind at the time of his earlier recantation. The second eyewitness offered by the prosecution was shooting victim Jose Cortes. Cortes testified that he saw two men arrive on the scene in a red Trans Am, and that he saw one of these men shoot Wilfredo Garcia. Tr. at 582. Cortes also testified that the two men “were young, not very tall, white skin and dark hair” and that they “looked like Dominicans.” Id. at 582-83. According to Cortes, these individuals arrived on the block and parked their car while Wilfredo was inside a store. Id. at 582. The two men walked past Cortes and then sat on top of another car outside of this store. Id. When Wilfredo exited the store he spoke to the men, although Garcia could not hear their- conversation. Id. Then, as Wilfredo walked away, one of the two men ran toward Wilfredo and started to open fire. Id. Cortes only saw one person shooting, and did not see what the other man was doing after the shooting started. Id. at 583. Cortes moved to assist Wilfredo, after which he heard more shots and was himself shot in the top of his right leg. Id. Cortes and Wilfredo walked down Bed-ford Avenue from South 1st to South 2nd, until Cortes lost consciousness. Id. at 585. Cortes woke up in the hospital, where he remained for four days. Id. He testified that he did not recognize either the shooter or the driver. Id. at 584. At trial, the prosecution played the post-arrest interview for the court and jury, over defense counsel’s renewed objection. Id. at 410-14. The defense called no witnesses and introduced no exhibits. After three days of deliberations, the jury found Ramon Espinal guilty of two counts of murder in the second degree, one count of attempted murder in the second degree, and one count of criminal possession of a weapon in the second degree. On April 29, 1991, Justice Barasch sentenced Ramon to two consecutive terms of 25 years to life on each second degree murder count, a consecutive sentence of 8 1/3 to 25 years’ imprisonment for attempted murder in the second degree, and a concurrent term of imprisonment of 5 to 15 years for criminal possession of a weapon. (3) Petitioner’s Appeal and Collateral Attacks on His Conviction On direct appeal, petitioner challenged the admission of testimony regarding his uncharged drug offenses; the admission of his post-arrest statements; the prosecutor’s alleged inflammatory comments on summation; an alleged modification of the indictment during jury deliberations; and the length of his sentence. Ramon’s conviction was affirmed by the Appellate Division on October 11, 1994. People v. Espinal, 208 A.D.2d 644, 618 N.Y.S.2d 235 (2d Dep’t 1994). The Court of Appeals denied his request for leave to appeal on February 21,1995. People v. Espinal, 85 N.Y.2d 861, 624 N.Y.S.2d 380, 648 N.E.2d 800 (1995). Since that final judgment, petitioner has waged a series of collateral attacks on his conviction in state and federal court. Petitioner has filed three separate motions to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10 (“Section 440”) that are relevant here. On October 30, 1996, petitioner, represented by counsel, filed his first Section 440 motion, on the grounds of newly discovered evidence related to two alibi witnesses who came forward after trial, Anthony Torres (“Torres”) and Anthony Guzman (“Guzman”), and the ineffective assistance of trial counsel. While preparing this motion in 1996, petitioner’s counsel spoke by phone with Guzman, who was then in an undisclosed location within the federal Witness Protection Program. See Guzman Aff., dated July 1, 2003, attached as Second Look Rep. Ex. D (“Guzman 2003 Aff.”), at ¶ 20. Petitioner’s counsel, Fernando Camacho (“Camacho”), prepared an affidavit based on these calls. According to that unsigned affidavit, Guzman told Camacho that he and Torres were drag racing against petitioner “[i]n vicinity of South 4th Street and Roebling Street in Brooklyn, New York” on the evening of June 21, 1988 when they encountered Reynaldo fleeing from the shooting. See Unsigned Aff. of Anthony Guzman, attached to Sept. 23, 1996 Letter from Fernando Camacho to Anthony Guzman, at ¶¶ 3-4. Petitioner, however, was unable to submit a signed affidavit from Guzman with this Section 440 motion, because Guzman was moved by the witness protection program and disappeared prior to signing any papers. Guzman 2003 Aff. ¶¶ 22-24. Accordingly, in a decision dated August 7, 1997, Justice Barasch denied petitioner’s claims with respect to potential alibi witness Anthony Guzman as unsubstantiated, “[i]nasmuch as the defendant, in lieu of providing an affidavit from Anthony Guzman or a reasonable explanation for failure to provide one, has supported his position solely with hearsay allegations contained in an attorney’s affidavit.” Aug. 7, 1997 Order, attached as RX E, at 8. On January 14, 1998, the court held a hearing to evaluate petitioner’s claim of newly discovered evidence relating to Anthony Torres. Following this hearing, Justice Barasch denied the remainder of petitioner’s motion, finding that Torres’s testimony was not newly discovered and that petitioner’s ineffective assistance claim was without merit. See Apr. 13, 1998 Decision and Order (“RX H”) at 2-4. Petitioner’s application to appeal was denied by the Second Department on February 3, 1999, and an application for review was dismissed by the Court of Appeals on February 24, 1999. See People v. Espinal, 93 N.Y.2d 852, 688 N.Y.S.2d 499, 710 N.E.2d 1098 (1999). On April 22, 1999, petitioner filed a second Section 440 motion pro se, alleging prosecutorial misconduct and that trial counsel failed to inform him that the decision to testify rested with him exclusively. Petitioner’s second motion (and his attempts to appeal to the Appellate Division and Court of Appeals) also failed. See People v. Espinal, 95 N.Y.2d 889, 715 N.Y.S.2d 381, 738 N.E.2d 785 (2000). Subsequently, petitioner filed his initial motion for habeas relief in federal court pursuant to 28 U.S.C. § 2254 on March 8, 2000. An initial Report and Recommendation regarding petitioner’s claims was issued by Magistrate Judge Steven M. Gold on October 30, 2002, to which both sides filed objections. Subsequently, petitioner requested by letter dated July 28, 2003 that his petition be held in abeyance so he could return to state court to exhaust additional claims of newly discovered evidence and ineffective assistance of counsel. That request was granted on January 21, 2004. Petitioner filed his third Section 440 motion in state court on January 23, 2004, represented by current counsel Ruth M. Liebesman. In that motion, petitioner claimed that the proffered testimony of Anthony Guzman constituted newly discovered evidence that would have led to a more favorable verdict in his case. Petitioner also claimed that his trial counsel was ineffective for failing to request that the court or prosecution reveal the name of a witness who appeared in a redacted police report and for failing to offer an alibi defense on petitioner’s behalf. In a decision dated May 20, 2004, the state court (Silverman, J.) rejected all of petitioner’s claims. First, the court found that Guzman’s testimony was not “newly discovered,” because it was known to petitioner before trial and had not been submitted in a sufficiently timely fashion. The court also found that Guzman’s testimony “would be cumulative to the alibi evidence already before the jury” through petitioner’s videotaped post-arrest statement to Assistant District Attorney Lewis. Second, the court found that petitioner was not entitled to an unredacted copy of the June 22, 1989 police report, because an in camera review of the report showed that it was not from an interview with Guzman, and because “the redacted police report does not support defendant’s alibi.” Finally, the court agreed with the two previous state court rulings that petitioner’s claims of ineffective assistance of counsel were without merit. The court added that petitioner’s claims regarding trial counsel’s failure to seek an unredacted police report or to present an alibi defense were raised in petitioner’s first Section 440 motion, so that they were procedurally barred in the current motion. Subsequently, petitioner moved to reopen his federal petition for habeas relief. The petition was reopened on November 8, 2004. Following Magistrate Judge Gold’s recusal on February 15, 2005, the matter was referred to Magistrate Judge Mann for a report and recommendation. Following additional submissions by the parties, Judge Mann issued her Report and Recommendation on May 23, 2006. In that Report, Judge Mann recommended that Ramon Espinal’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied, and that his case be dismissed. On June 9, 2006, the Second Look Program of Brooklyn Law School moved to appear as amicus curiae in this case. This motion was granted on June 28, 2006. The Second Look Program submitted with its motion a copy of its November 15, 2005 Memorandum to the Brooklyn District Attorney’s office (the “Second Look Report”), in which the Second Look Program argued that petitioner was wrongly convicted. This case was held in abeyance pending a response from the Brooklyn District Attorney’s office. On May 7, 2007, counsel to the District Attorney submitted a letter to the court stating that he had reviewed the full record to this ease, including the Second Look Program’s memorandum, and had interviewed two of the witnesses in the case. The District Attorney’s counsel concluded that “[a]fter reviewing those documents and interviewing the witnesses, it is my opinion that the District Attorney’s Office has not received any new evidence to alter our belief that the defendant, acting in concert with his brother Reynaldo Espinal, committed the crimes charged.” Letter from Lance P. Ogiste, dated May 7, 2007 (“Ogiste 2007 Letter”) at 2. Discussion (1) Legal Standards Petitioner claims that he received ineffective assistance of counsel in violation of his rights under the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on this claim, petitioner must establish both that the performance of his trial counsel was constitutionally deficient, and that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To establish prejudice, petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Once such a showing is made, the claim is not defeated by a showing that counsel provided competent representation in a more general sense. See Henry v. Poole, 409 F.3d 48, 72 (2d Cir.2005) (holding that a state court unreasonably applied Strickland when it ignored the probable impact of counsel’s unprofessional errors, and instead relied on a finding that counsel provided meaningful representation overall). A court reviewing an ineffective assistance of counsel claim “must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052; Murden v. Artuz, 497 F.3d 178, 198 (2d Cir.2007); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994). Petitioner raised these ineffective assistance of counsel claims in state court through his Section 440 motions. Under the deferential standard required by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court may not issue a writ of habeas corpus on a claim that was adjudicated on the merits in state court proceedings “unless the state court adjudication ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,’ or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ ” Murden v. Artuz, 497 F.3d 178, 197 (2d Cir.2007) (quoting 28 U.S.C. § 2254(d)(1)-(2)). (2) Petitioner’s Ineffective Assistance of Counsel Claims Under Strickland, courts are instructed to evaluate whether attorney conduct was reasonable “from counsel’s perspective at the time,” and petitioner must overcome “the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (internal quotations and citations omitted). However, a sound trial strategy must be based on reasonable investigations. In preparing for trial, “ ‘[c]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’ ” Lindstadt v. Keane, 239 F.3d 191, 200 (2d Cir.2001) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052). See also Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005). A reasonable decision to forego investigation may be based on a reasoned judgment that such investigation would be fruitless, wasteful, or even counterproductive. Schulz v. Marshall, 528 F.Supp.2d 77, 95-96 (E.D.N.Y.2007). But a failure to conduct reasonable investigation into possible alibi evidence, in the absence of such a reasonable explanation, falls below the standard of effective representation required by Strickland. See Lindstadt, 239 F.3d at 200; Schulz, 528 F.Supp.2d at 96; Sparman v. Edwards, 26 F.Supp.2d 450, 452-53 (E.D.N.Y.1997). a. Trial Counsel’s Failure to Investigate the Redacted DD-5 Report of David Garcia Rendered His Assistance Constitutionally Deficient Under the First Prong of Strickland Petitioner claims that his trial counsel provided ineffective counsel by failing to investigate and discover the witness who appeared in a redacted DD-5 report dated June 22, 1989. This report recounts a police interview with a witness named David Garcia, whose name was blacked out in the copy of the DD-5 that was provided to petitioner before trial. Garcia related the following story about the shootings: I was hanging out on South 4 St. & Havemeyer with two other guys, both named [Anthony], One of the guys had his car (Beige color) with him. It was in the evening and dark. A Red Fire-Bird pulled up to the corner, I did not see who was driving. Just as the car stopped another guy I know from the area came running up the street. His hand was bleeding and he had a gun in the other one. He yelled to us that he had just shot some one and jumped into the red Fire-Bird. The car then drove off. We got into [Anthonys’] car and started to follow the Firebird. Somewhere near the 90 Pet. the Firebird pulled over. The guy who was shot got out of the passenger side and threw a gun into an empty lot. They then drove off. I then got out of the car climbed over a fence and recovered the gun. It was a 9MM, and still loaded. We took the gun to [Anthonys’] house. The next day we heard the gun was used in a murder. That night, myself, the two [Anthony’s] and my cousin, [Mark Garcia] took the gun to the East River and threw it in. I’m not sure exactly where the gun was thrown in. Garcia was shown six color photos and identified Reynaldo Espinal as the man who was running with the gun in his hand. Petitioner has claimed since his first Section 440 motion that trial counsel was ineffective for failing to investigate this redacted DD-5 report. Affidavit of Daniel M. Felber, dated Oct. 28, 1996, attached as RX C (“Felber Aff.”), at ¶ 17. Petitioner argues that this DD-5 report corroborates his alibi, because it supports his claim that he was driving his red Firebird in the vicinity of South 4th Street and Havemeyer when he encountered Reynaldo, and that he was not with Reynaldo at the corner of South 1st Street and Bedford Avenue at the time of the shootings. Krinsky apparently had the relevant police reports at the time of trial. Krinsky testified at the Section 440 hearing held on January 14, 1998 that had no personal recollection of this document, but that he likely would have received this report on the eve of trial. H. Tr. at 187-88. He also testified that he had most likely received these reports after he had spoken with Anthony Torres, the only potential alibi witness available to him. H. Tr. at 187-88. Krinsky did not recognize the redacted report, or the other DD-5 reports, as important evidence for petitioner’s alibi claims, apparently because he had already decided to forego an alibi defense by the time he received them. Krinsky’s decision to forego an alibi defense might have seemed a reasonable trial strategy in light of his failed efforts to investigate his client’s claims. As Krinsky explained at the 1998 hearing, he contacted Anthony Torres on petitioner’s behalf pri- or to trial and found him to be immediately hostile. H. Tr. at 160-64. Krinsky testified that Torres refused to answer any questions about the night of the shootings. Torres told Krinsky that he would not cooperate because he was afraid Wilfredo Garcia’s family might retaliate against him if he attempted to assist the Espinals. In addition, Torres had an extensive criminal record. Under these circumstances, Krinsky reasonably concluded that Torres would only be a liability to petitioner’s case. In addition, Krinsky attempted, but failed, to identify and locate Anthony Guzman. Krinsky explained at the section 440 hearing that petitioner’s family had identified two potential alibi witnesses, Anthony Torres and “someone who they only had a street name for.” H. Tr. at 184. This second individual was presumably Anthony Guzman. But Guzman, who at that time was in an undisclosed location in the federal Witness Protection Program, Guzman 2003 Aff. ¶ 20, could not be found. Accordingly, Krinsky investigated all of his client’s suggested leads and was unable to find any witnesses who could corroborate his alibi. Nonetheless, an existing trial strategy, even if initially reasonable, cannot excuse counsel’s failure to investigate new evidence that could potentially exonerate his client or create reasonable doubt in the minds of the jury. In the absence of any alibi witnesses, Krinsky’s trial strategy was to poke holes in the prosecution’s case, in order to create doubt in the jury’s mind about his client’s guilt. See H. Tr. at 167-68. This strategy was largely successful at Ramon’s first trial, where ten jurors were reportedly prepared to acquit based on their doubts about the credibility of the prosecution’s case. See id at 169-70. However, it appears that Krinsky’s existing — and almost successful — trial strategy blinded him to the importance of the police reports he received prior to trial. As a result, Krinsky failed to consider whether these reports, particularly the redacted report showing that an unknown witness had told police a story very similar to his chent’s story, could have salvaged Ramon’s alibi defense. It may be difficult to find personal fault in this error, in light of Krinsky’s vigorous representation of petitioner at trial. Nonetheless, this error rendered Krinsky’s vigorous defense of his client ineffective. Courts have found that a trial counsel’s failure to investigate potentially exculpatory evidence, in the absence of a reasonable explanation, falls below the constitutional standard of effective representation required by Strickland. See Lindstadt, 239 F.3d at 200 (finding counsel ineffective where failure to investigate the available evidence “prevented [petitioner] from offering something akin to an alibi”); Schulz, 528 F.Supp.2d at 96 (finding counsel ineffective for “breachfing] his duty to investigate [petitioner’s] case diligently”); Sparman v. Edwards, 26 F.Supp.2d 450, 452-53 (E.D.N.Y.1997) (finding counsel ineffective for failing to investigate evidence). Petitioner has shown that trial counsel failed to investigate whether the redacted police report and other disclosed materials could have supported his alibi claims. Krinsky did not recall any of these documents when asked about them in the Section 440 hearing, and he failed to offer any explanation to excuse his decision not to investigate this possible alibi evidence. In light of the facts of this case, and in the absence of a reasonable explanation, counsel’s failure to investigate these police reports cannot be presumed to be sound trial strategy. Accordingly, petitioner has satisfied the first prong of the Strickland test. b. Trial Counsel’s Failure to Investigate the Alibi Evidence in the Redacted Police Report Prejudiced Petitioner Sufficiently to Meet the Second Prong of Strickland Under Strickland, counsel’s errors alone are insufficient to warrant relief. Petitioner must also prove that “counsel’s errors prejudiced the defendant to the extent that they ‘undermine confidence in the outcome’” of his trial. Lindstadt, 239 F.3d at 204 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). See also Henry v. Poole, 409 F.3d 48, 63 (2d Cir.2005) (“[T]he defendant must show more than that the unprofessional performance merely ‘had some conceivable effect.’ To satisfy the ‘reasonable probability’ test, however, ‘a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.’ ” (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052 (emphasis in Second Circuit’s opinion))). As noted, trial counsel failed to investigate or present available evidence that could have supported petitioner’s alibi claims at trial. There is a reasonable probability that a credible alibi defense, supported by this available evidence, could have placed reasonable doubt in the minds of the jury. Accordingly, petitioner has established that counsel’s errors unacceptably prejudiced the outcome of his trial. As explained above, petitioner was convicted largely on the strength of two eyewitnesses. One of these eyewitnesses, Anthony Garcia, identified Ramon at the scene of the shootings. Assuming that the prosecution witnesses told the truth, this evidence is more than sufficient to support a guilty verdict. In evaluating the strength of the prosecution’s case, however, it must be noted that Anthony Garcia’s story changed multiple times before he testified at Ramon’s retrial. Garcia’s first statement to police named Ramon as the shooter, and claimed that Ramon viciously shot Alberto Montanez in the face at point-blank range. See Second Look Rep. Ex. DD-5-23. Shortly before the first trial was to begin, Garcia recanted his story and told prosecutors that Ramon was not involved in the shootings. Then, before the start of the January 1991 trial, Garcia reaffirmed to prosecutors that he would testify against Ramon. At both the first trial and the retrial, Garcia explained that he had recanted his initial story because he had been placed in a holding cell with Ramon prior to the first trial, and Ramon had asked him to assist in his defense. Garcia agreed to assist Ramon because he feared for the safety of himself and his family. See Tr. at 552-53; R & R at 12-13; Jan. 29, 1991 Tr. at 744-47. Garcia specifically indicated that Ramon asked him to vouch for the story that Ramon was at South 4th and Havemeyer during the shootings. Tr. at 553. However, Garcia’s testimony at Ramon’s first and second trials differed significantly from his original statement to police. The record provides no explanation for why Garcia, after initially identifying Ramon as the primary shooter, testified at both trials that he did not see Ramon shoot anyone. The inconsistencies in Anthony Garcia’s stories raise questions about the credibility of his testimony at Ramon’s second trial. But Garcia’s trial testimony also provides evidence that Ramon asked other individuals to support his alibi claims. Such testimony necessarily raises the specter of collusion, and calls into question the credibility of petitioner’s post-trial alibi witnesses, Anthony Torres and Anthony Guzman, particularly in light of the fact that Torres and Guzman did not provide any statements to investigators or the court until after Ramon discussed this matter with Torres in prison in 1995. See Affidavit of Anthony Torres, dated Oct. 4, 2005, attached as Second Look Rep. Ex. C (“Torres 2005 Aff.”), at ¶ 17. These concerns over the credibility of Torres and Guzman’s proffered testimony provide the backdrop for considering trial counsel’s failure to investigate the redacted DD-5 report of David Garcia. In retrospect, this DD-5 report appears to be the only significant piece of evidence in the record that corroborates petitioner’s alibi claims, but more significantly, that remains untainted by the possibility of collusion between petitioner and his alibi witnesses to manufacture an alibi defense. Based on this DD-5 report, it appears that David Garcia, during an interview on June 22, 1989, told police a version of events that corroborates significant details of the story that Ramon gave police after his arrest on June 19, 1989. Both David and Ramon told police that Reynaldo was picked up by a red car sometime after the shooting, a few blocks away from the scene of the shooting itself. Both David and Ramon specifically told police that the encounter with Reynaldo took place at South 4th Street and Havemeyer. Accordingly, this report provided defense counsel with corroborating evidence that should have spurred him to pursue and attempt to mount a credible alibi defense. This DD-5 report also states that David Garcia had previously been interviewed by police “last year shortly after this incident.” There is no evidence in the record of what David Garcia told police during the initial investigation, and respondent has been unable to uncover any notes or police reports relating to this earlier police interview of David Garcia. See Letter from Lance Ogiste, dated Aug. 11, 2008. However, there is also no indication in this DD-5 report that David Garcia’s story had changed since the earlier interview. Unlike the later statements offered by Torres and Guzman, which are necessarily tainted by the passage of time and the possibility of collusion, the David Garcia DD-5 report bears significant indicia of credibility. Notably, David Garcia did not mention either Ramon or Reynaldo by name (although he subsequently identified Reynaldo out of a photo array). This suggests that he was not telling this story in order to exonerate Ramon. If David Garcia’s goal was to help free Ramon Espinal, then he would logically have given Ramon’s name to police officers. But there is nothing in the police recounting of the David Garcia interview to suggest that he was trying to provide them with an alibi for Ramon. Similarly, when Ramon told his lawyer to track down alibi witnesses for trial, he never mentioned David Garcia by name. Instead, he told his lawyer to find Anthony Torres and another individual known only by his street name (now known to be Anthony Guzman). See H. Tr. at 184. The fact that Ramon never identified David Garcia as a possible witness suggests that Ramon and David did not concoct this story together, and in fact that Ramon may not have even known that David Garcia was a witness to any of these events. In sum, there is no evidence in the record to show that David Garcia knew the Espinal brothers, although he may have recognized them from the neighborhood. Even assuming that Garcia knew Ramon Espinal, however, there is no evidence to show that he colluded with Ramon on an alibi story. The record shows that David Garcia provided police with a story that largely corroborated Ramon’s alibi claims shortly after Ramon’s arrest, but Garcia’s failure to identify Ramon by name is a strong indication that Garcia did not manufacture this story in concert with Ramon. In addition, although there is no record of what David Garcia told Detectives Chmil and Vitulli during the initial investigation of these shootings, nothing in Detective Chmil’s DD-5 report suggests that Garcia’s later interview contradicted that prior conversation. There is no reason to believe that Garcia’s story ever changed, and in fact it is reasonable to expect that Detective Chmil would have noted in his DD-5 report if Garcia’s story had changed. This suggests that David Garcia told this same story to police shortly after the shootings. If so, it is even more unlikely that Garcia could have collaborated with Ramon on a false alibi at that time, because Ramon took off for the Dominican Republic within hours of the shootings. David Garcia’s DD-5 also largely tracks the later affidavits given by Torres and Guzman. The passage of time necessarily raises doubts about the reliability of the Torres and Guzman affidavits, particularly because Torres and Guzman did not come forward until after Torres spoke with Ramon in prison. Indeed, respondent has argued that the Guzman affidavit in particular was manufactured to track the details of this police report. For example, respondent points out that Guzman apparently told petitioner’s counsel in 1996 that Reynaldo had given him the gun to dispose of, whereas Guzman’s 2003 affidavit instead tracks David Garcia’s story about retrieving the gun after Reynaldo threw it into an empty lot. Compare Aff. of Fernando Camacho, dated Oct. 28, 1996, attached as RX C, at ¶ 6, with Aff. of Anthony Guzman, dated July 1, 2003, attached as Second Look Rep. Ex. D (“Guzman 2003 Aff.”), at ¶¶ 11-12. Given the lengthy passage of time since the events in question, it is difficult to know whether these inconsistencies are the consequence of faulty memory, influenced by other individuals’ recollections of the same events, or whether the details are changing because Guzman is trying to help his friend by colluding on an alibi story. But while it is possible that the Torres and Guzman affidavits were influenced over the years by David Garcia’s DD-5 report, there is no evidence that David Garcia ever discussed his story with Torres and Guzman before speaking to police in 1989. In short, although David Garcia’s statement may differ in some details from petitioner’s other alibi evidence, it corroborates the critical claim made by Ramon immediately after his arrest: that Ramon picked up his brother a few blocks from the shooting incident, shortly after the shooting occurred. This can only lead the court to two possible conclusions: that David Garcia was somehow part of an effort with these other individuals to manufacture an alibi story, or that David Garcia was telling the truth. But there is no evidence anywhere in the record to suggest that David Garcia was colluding with these other witnesses. Thus, the absence of David Garcia’s name elsewhere in the record actually bolsters the credibility of his statement to police, because presumably these other witnesses would have thought to identify David Garcia as an alibi witness if they had been colluding with him on a story to exonerate Ramon. Of course, the absence of David Garcia from any of these other alibi stories also raises an obvious question about his credibility: how can David Garcia have been privy to these events when neither Anthony Torres nor Anthony Guzman places him at the scene? Both Torres and Guzman have signed statements that they were out driving with David’s cousin, Marcus “BonBon” Garcia, on the night of the shootings. See Aff. of Anthony Torres, dated Oct. 4, 2005, attached as Second Look Rep. Ex. C (“Torres 2005 Aff.”), at ¶ 2; Signed Statement of Anthony Guzman, dated Oct. 1, 2005, attached as Second Look Rep. Ex. D (“Guzman 2005 Statement”), at ¶ 1. A closer look at the changing stories of these individuals, however, suggests that it is possible that Torres and Guzman, beginning sometime around 2003, mistakenly identified Marcus Garcia as the third individual with them on the night of June 21, 1988, when it fact it may have been Marcus’s cousin David Garcia. Indeed, the only way to reconcile certain discrepancies between the various alibi stories in the record is to assume that David Garcia, and not Marcus Garcia, was the individual riding in a beige car with Anthony Guzman and Anthony Torres on the night of the shootings. As already noted, David Garcia told police that he was hanging out that night “with two other guys, both named Anthony.” David also told police that he helped to throw away the gun used in these shootings the next day with “the two Anthony’s and my cousin, Mark Garcia.” Notably, Marcus Garcia has told the District Attorney’s office that he was not with Torres or Guzman the night of the shootings, but that at some time after that night Marcus was involved with Torres and another individual in the disposal of a gun. Ogiste 2007 Letter at 6. David Garcia’s statement to police in 1989 and Marcus Garcia’s statements to the DA in 2006 and 2007 could both be true, however, if it was David Garcia, and not Marcus Garcia, who was with Guzman and Torres on the night of the shootings. Although Guzman and Torres have asserted in their most recent statements that Marcus Garcia was with them on the night of the shootings, they previously were uncertain about the identity of the third passenger in their car that night. In 1998, Torres testified that he could not remember the name of the third person in the car that night with Anthony Guzman and himself. H. Tr. at 21. In his most recent affidavit, dated October 4, 2005, Torres now claims that he remembers that the third person in the car with him on the night in question was Marcus Garcia. Torres 2005 Aff. at ¶ 2. Torres states that he has not asked Marcus Garcia about these events, but that he confirmed with Guzman that the third person in the car was Marcus Garcia. Id. at addendum. Similarly, Guzman stated in his July 1, 2003 affidavit that “[a]nother person, whose name I do not recall, also was in the car” that night with himself and his cousin Anthony Torres. Guzman 2003 Aff. ¶ 2. It is only in his later October 1, 2005 statement to the Second Look Program that Guzman identifies this third person as Marcus Garcia. Marcus Garcia has denied (to both the Second Look Program and the District Attorney) that he was in the car that night. See Second Look Rep. at 12 n. 16; Ogiste 2007 Letter at 5. But David Garcia told police in 1989 that he was out with the two Anthony’s that night, and that Marcus was only involved in the subsequent disposal of the gun the next day. Accordingly, it is reasonable to assume that Torres and Guzman have wrongly convinced themselves that Marcus Garcia was the third passenger, perhaps because they correctly remember that Marcus Garcia was involved the next day with the disposal of Reynaldo Espinal’s gun. In light of David Garcia’s apparently credible statement to police, it appears equally logical to assume that it was in fact David Garcia who was the third passenger that evening. If this assumption is correct, then David Garcia’s DD-5 provides significant corroboration that the basic story told by Ramon, Torres and Guzman — that Ramon was not at the site of the shootings, and that he only encountered his brother while driving a half-mile away — may be accurate. It is difficult to gauge with certainty the veracity of David Garcia’s story, now that he is no longer alive to discuss the events of that evening or his interview with police. The record reveals almost nothing about Garcia. The New York State Department of Correctional Services website shows that Garcia was a convicted criminal, and that he served time for first degree robbery between 1992 and 1997. Otherwise, all that is known about Garcia is that he was shot to death on July 19, 2001. But it is very troubling that trial counsel’s failure to investigate this redacted report prevented petitioner from discovering this possible alibi witness while David Garcia was alive. It is very possible that Garcia could have provided important corroborating evidence if he had been contacted by defense counsel prior to trial. Although these issues cannot be resolved conclusively based on the existing record, the probability that this evidence would have changed the outcome of petitioner’s trial is sufficient to undermine confidence in the trial verdict. See Henry v. Poole, 409 F.3d 48, 64 (2d Cir.2005) (“ ‘The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.’ ” (quoting Strickland 466 U.S. at 694, 104 S.Ct. 2052 (emphasis added by Second Circuit))). Defense counsel’s failure to investigate the redacted DD-5 report, and to discover that it was David Garcia who told police a story that corroborated Ramon’s alibi claims, prejudiced petitioner by eliminating his best opportunity to cast significant doubt on the prosecution’s case at trial. This error casts sufficient doubt on Ramon’s conviction at trial to satisfy the prejudice prong of Strickland. The R & R concluded instead that “rather than presenting proof of an alibi, the redacted report contains highly incriminating evidence of an apparently coordinated getaway involving a person driving a red car (concededly petitioner) and the undisputed shooter (Reynaldo).” R & R at 42. Judge Mann rightly noted that the David Garcia DD-5 report fails to mention a meeting at a nearby gas station or a drag race, and that the absence of these details raises questions about their credibility. Nonetheless, petitioner correctly objects that there has never been any evidence in this case to suggest that Ramon and Reynaldo planned to meet at South 4th Street and Havemeyer, at a distance of about a half-mile away from the shootings at South 1st Street and Bedford Avenue. All of the evidence put forward by the prosecution at trial placed Ramon and his red car at the scene of the shootings. Ramon has claimed, and all of his alibi evidence is intended to prove, that he encountered Reynaldo by chance a few blocks from the shooting while he was out driving. Therefore, while it is not unreasonable to speculate that Ramon and Reynaldo planned to meet after the shootings, this is not a claim that has ever been made by the prosecution or that has ever been supported by any substantial evidence. In addition, the R & R credited trial counsel’s claim that “the drag-racing story did not necessarily exonerate petitioner, as it placed him — along with his brother — in the vicinity of the shootings moments after the events charged.” R & R at 65. Krin-sky testified at the Section 440 hearing that he viewed this alibi defense as “walking on a tightrope” because his client’s story placed him dangerously close to the scene of the shootings. H. Tr. at 175-76. However, the fact remains that the jury heard Ramon’s videotaped statement to police, in which he admitted picking Reynaldo up after the shootings and fleeing with him to the Dominican Republic. Therefore, the jury was already aware that Ramon admitted being in the neighborhood, and that he helped his brother to escape the scene of the crime. Additional alibi evidence would have reinforced Ramon’s admission to police, but it also could have generated doubts about whether he was guilty of the crimes for which he was convicted. In light of the fact that Ramon’s admission was already before the jury, counsel’s failure to present this alibi defense left petitioner vulnerable to the prosecution’s most severe charges, without providing any significant benefits to his defense. Petitioner’s innocence or guilt remains shrouded in doubt. However, our legal system requires the prosecution to prove its claims beyond a reasonable doubt. A criminal defendant is entitled to avoid conviction at trial if he can present evidence to the jury that necessitates a finding of reasonable doubt. If trial counsel’s errors prejudiced petitioner, by preventing him from placing evidence before the jury that would reasonably have prompted such doubt, petitioner is entitled to habeas relief. The facts of this case show that counsel’s errors created such prejudice. As defense counsel testified, his trial strategy relied on casting doubt on the prosecution’s case, rather than trying to convince the jury of an alternative version of events. See H. Tr. at 167-68. Although petitioner’s alibi was before the jury, through his videotaped testimony, it was entirely uncorroborated. It is reasonable to expect a jury to discount an uncorroborated and self-serving statement offered by a defendant, and to give greater weight to an alibi corroborated by a witness whose credibility is not initially suspect. Moreover, this corroborating evidence would not have been merely cumulative, as indicated by the state court in its ruling, because it would have significantly strengthened the alibi claims already before the jury through petitioner’s videotaped statements. See Bohan v. Kuhlmann, 234 F.Supp.2d 231, 251, 280 (S.D.N.Y.2002) (finding that corroborating evidence was not cumulative where it might have bolstered petitioner’s alibi claims). Accordingly, counsel’s failure to investigate this possible corroborating evidence is sufficient to show prejudice. See Lind-stadt, 239 F.3d at 204-05 (reversing denial of writ after finding prejudice where trial counsel failed to investigate evidence that could have corroborated defendant’s alibi claims, and where prosecution case rested on only two eyewitnesses and limited corroborating evidence); Brown v. Myers, 137 F.3d 1154, 1157-58 (9th Cir.1998) (reversing denial of writ after finding prejudice under Strickland standard, because habe-as petitioner’s counsel had failed to investigate and call corroborating witnesses at trial, thereby diminishing the credibility of defendant’s own testimony at trial); Schulz, 528 F.Supp.2d at 101 (finding prejudice where defense counsel failed to present alibi evidence, and conviction rested on testimony of only two eyewitnesses). Cf. Bohan, 234 F.Supp.2d at 252 (granting writ, although “there was more than sufficient evidence presented at trial for a rational juror to conclude that [petitioner] committed the murder in question,” because when constitutional errors at trial “create grave doubts about their effect on a petitioner’s guilty verdict, a federal court has an obligation to grant a writ of habeas corpus” (citing O’Neal v. McAninch, 513 U.S. 432, 436-37, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995))). c. Trial Counsel Failed to Offer Wilfredo Garcia’s DD-5 Statement as Evidence Petitioner has also claimed that Krinsky was ineffective for failing to introduce the statement given by Wilfredo Garcia to police before he died, in which Wilfredo identified Reynaldo Espinal as his shooter, and did not make any mention of Ramon Espinal. Judge Mann concluded that trial counsel’s failure to introduce the statement of Wilfredo Garcia, as given to police during his hospitalization, was not erroneous because this statement was inadmissible hearsay, and because it would not have prevented a jury from finding Ramon guilty as an accomplice. R & R at 68-72. Judge Mann correctly observes that this statement was not a dying declaration, because it was given while Wilfredo expected to recover. See R & R at 68-70. This statement also was not admissible against interest because Wilfredo’s description of the shooting was not against his penal interest. See id. at 70-71. Nonetheless, if trial counsel had attempted to offer this statement, it should have been found admissible under New York’s “constitutional” exception to the hearsay rule. New York’s rules of evidence do not include an express “residual” exception comparable to Rule 807 of the Federal Rules of Evidence. Nonetheless, New York courts have recognized a constitutionally-based exception to the hearsay rule for certain evidence offered by criminal defendants that provides equivalent circumstantial guarantees of trustworthiness. See People v. Robinson, 89 N.Y.2d 648, 654, 657 N.Y.S.2d 575, 579, 679 N.E.2d 1055, 1059 (1997) (allowing defendant, on constitutional principles of due process, to introduce grand jury testimony of unavailable witness, even though such testimony did not fall within recognized hearsay exception); People v. James, 242 A.D.2d 389, 389, 661 N.Y.S.2d 273, 273-74 (2d Dep’t 1997) (same); People v. Esteves, 152 A.D.2d 406, 413, 549 N.Y.S.2d 30, 35 (2d Dep’t 1989) (recognizing that the United States Constitution may require courts to admit exculpatory hearsay statements that do not fall within any recognized hearsay exception). See also Morales v. Portuondo, 154 F.Supp.2d 706, 724-25 (S.D.N.Y.2001) (comparing New York’s constitutional hearsay exception with the federal residual hearsay exception). In Robinson, 89 N.Y.2d at 650, 657 N.Y.S.2d at 576, 679 N.E.2d at 1056, the New York Court of Appeals held that a defendant’s constitutional right to due process permitted the admission of grand jury testimony at trial where “the declarant has become unavailable to testify at trial” and “the hearsay testimony is material, exculpatory and has sufficient indicia of reliability.” One federal court has summarized the three-factor test from Robinson to conclude that hearsay testimony may be admissible under New York law where: “(1) the testimony was ‘vital’ to the defense; (2) the witness who gave the testimony was unavailable; and (3) the testimony bore sufficient indicia of reliability.” Morales, 154 F.Supp.2d at 725. If Ramon had offered Wilfredo’s statement to police at trial, it would have met all three of these requirements. First, this statement would have been “vital” to Ramon’s defense, as it would have been offered as corroborating evidence to support his theory that only Reynaldo was at the scene of the crime when the shooting occurred. The prosecution’s theory of this case, as explained to the jury during summation, was that Wilfredo knew the Espi-nal brothers, and that this shooting was motivated by a dispute between Wilfredo and the Espinals over a drug dealing corner. See Tr. at 682. The prosecution also argued that Ramon Espinal was armed and standing about two