Full opinion text
MEMORANDUM & ORDER DEARIE, District Judge TABLE OF CONTENTS I. OVERVIEW .. .416 II. “ALL THE EVIDENCE, OLD AND NEW ...”.. .421 A. The Trial .. .421 1. Openings ... 421 2. Eyewitnesses other than Ellis .. .422 a. Margaret Contreras and Shereda Freeman .. .422 b. Lynn Burton ... 423 c. Deborah McCoy ... 424 3. Shaquana Ellis’s Trial Testimony ...425 a. Direct Examination .. .425 b. Cross-Examination ... 427 4. Police Witnesses ... 429 a. Ballistics ... 429 b. Hyman’s Statements; Recovery of the Mazda and the Acura ... 431 5. Hyman’s Grand Jury Testimony ...433 6. The 911 calls .. .433 7. Defense Case .. .434 8. The Jury Charge on Accessorial Liability ...434 9. Verdict .. .435 10. Sentencing ... 435 B. State and Appellate Post-Conviction Proceedings .. .436 1. Direct Appeal ... 436 2. First State Post-Conviction Motion ...436 3. The Second 440 .. .437 4. Coram Nobis .. .441 C. The Federal Habeas Proceeding ... 441 1. Hyman’s Case ... 442 a. Shaquana Ellis ... 442 b. Amanda Benitez ... 447 c. Shaquana Delain ... 451 d. Private Investigator Kevin Hinkson .. .452 2. The Prosecution’s Rebuttal ... 453 a. Threshold Legal Concern ... 453 b. The Prosecution’s Rebuttal Evidence ...456 i. Whitmore’s Statement ... 456 ii. Joseph Howard .. .458 III. STANDARDS AND FINDINGS ...459 A. Actual Innocence .. .459 1. Generally .. .459 2. The “Credible” Prong ... 460 3.“Compelling” ... 462 B. Ineffective Assistance of Counsel ...463 1. Legal Standard .. .463 2. Analysis .. .464 IV. CONCLUSION .. .466 I. OVERVIEW Since June 2002, petitioner Tullie Hy-man has been in custody on his sentence of 21 years to life for his conviction of second-degree murder, weapons possession and reckless endangerment. The charges arose out of a multiple-participant shooting in front of an apartment building that resulted in the tragic death of an innocent bystander inside the building’s lobby. Before the Court is Hyman’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He claims that he was denied his Sixth Amendment right to the effective assistance of counsel because his attorney possessed strong exculpatory evidence but chose, because of a fee dispute with the investigator who produced the evidence rather than for strategic reasons, not to introduce it at trial. Recognizing that this claim is barred from federal review because the state court denied it in the first instance on state procedural grounds, Hyman also advances, in an attempt to lift the bar, a gateway claim of actual innocence premised on the consistent recants offered by Shaquana Ellis, the only witness to implicate him at trial. Indeed, outside the four corners of this infrequently invoked procedural claim, Hy-man has steadfastly maintained his factual innocence since voluntarily surrendering to police the morning after the shooting more than sixteen years ago. Hyman’s petition presents an especially challenging state court record that raises concerns about his trial and post-conviction proceedings. Among other things, (i) as a factual matter Hyman’s ineffectiveness allegation appears to be true—it is undisputed that his attorney failed to present key exculpatory evidence to the jury that would have undermined Ellis’s credibility, and the proof is unrefuted that counsel did so because of a fee dispute with the defense investigator rather than for any reason that could be called “trial strategy”; (ii) Ellis’s repeated disavowals of her trial testimony over the span of fifteen years, despite certain flaws, indeed ring true on the critical retraction—which means that she did not in fact witness the shooting as she testified at Hyman’s trial; and (iii) the state post-conviction court where Hyman first presented each of these serious issues denied any form of relief, including the request for a hearing. Certain facts are firmly established in the trial record: shortly after 7:00 p.m., on March 10, 2000, a shootout erupted in the middle of Hassock Street in Far Rocka-way, Queens, in front of the apartment complex at 1540 Hassock, known as the Redfern Houses. Ballistics established that more than thirty bullets were fired from at least four different weapons and in several directions, as bullet damage was found on several empty cars parked in the street, in the lobby and a second floor apartment in the 1540 building, and in the Friendly Market located across the street from 1540. Maria Medina, on tenant patrol duty inside the 1540 lobby at the time, was struck by one of the bullets, crawled toward and then was helped into the nearby elevator for safety, and died within minutes. The type of bullet that killed Medina remains unknown. The shooting participants included two individuals standing along the fence in front of 1540—known to be codefendant Jonathan Whitmore and, mostly likely, Derek Harris, also known as Mark Antony, or Wiz—and two or more individuals in or near two cars double-parked in the middle of Hassock Street. Hyman admits that he was in the driver’s seat of one of those double-parked cars, and it was the prosecution’s theory at trial that the driver of the other car was jhe other codefendant, Osimba Rabsatt. What has been extraordinarily difficult to resolve, however, is the single fact essential to the question of Hyman’s guilt: Was he, as he has long claimed, the unarmed, intended victim of an ambush, or did he participate in the shooting? Hyman did not testify at his trial. His version of events, however, was presented to the jury through the state’s introduction of the several statements he made after his voluntary surrender, including written and oral statements to the police and his grand jury testimony. The only direct evidence against Hyman came from prosecution witness Shaquana Ellis, who testified that, from a third-floor window in 1540 Hassock Street, she saw Hyman’s arm hanging outside the passenger window of a green Mazda, parked behind a red Acura, “fir[ing] off’ gunshots. (T. 1551). Ellis said she saw “flashes” though not the guns, and despite the dark (it was after 7 p.m. in March), she also saw Hyman’s face and hoodie, and was sure it was Hyman because she had known him since junior high. In her testimony, Ellis was specific in identifying her alleged vantage point (the window of a hallway on the third floor of 1540 Hassock) and the two individuals allegedly with her at the time (her friends Amanda Benitez and Shaquana Delain). Of necessity, the state showcased Ellis’s testimony during summation and, not surprisingly, the deliberating jury asked to have it read back. Sometime after the verdict, however, apparently later that year (2002), Ellis began telling certain individuals that she had not in fact seen the shooting. Despite several half-starts, Ellis has stood by the essence of her recantation through numerous interviews—with a private investigator, Hy-man’s post-conviction counsel, Hyman’s current habeas counsel, and even the Executive Assistant District Attorney of Queens County Charles Testagrossa, who traveled to Ellis’s home in Virginia for that purpose, as part of a limited inquiry triggered by the current petition. Ellis’s most recent iteration of her recant came in the form of sworn testimony before this Court during the hearing on Hyman’s gateway innocence claim, a unique vehicle that takes the Court into largely uncharted waters. Under the Supreme Court’s standards, adjudication of an actual innocence claim requires that the Court first assess the credibility of the Ellis recant and other testimony offered at the gateway hearing, and then assess how a rational jury faced with the overall record as now supplemented would likely vote: more probing and comprehensive than traditional sufficiency-of-the-evidence analysis, this process requires the Court to re-weigh the entire state’s case anew and even reopen issues of trial credibility. Should Hyman prevail on this claim, he will have succeeded only in lifting the procedural bar that frees the Court to address the merits of his substantive claim that his trial attorney was ineffective for failing to introduce exculpatory evidence. Adjudication of that claim will likewise entail an atypical jurisprudential expedition. Since the enactment of the Antiterrorism and Death Penalty Act of 1996 (“AEDPA”), most ineffectiveness claims that, like Hy-man’s, have been rejected in the first instance by a state court are, as a practical matter, “doomed,” Tavarez v. Larkin, 814 F.3d 644, 647 (2d Cir.2016). Even the most compelling ineffectiveness claims, therefore, will test the outer limits of AEDPA jurisprudence and this Court’s authority to entertain the application. It did not have to come to this. First, the falsity of Ellis’s trial testimony could and should have been exposed at trial, because the exculpatory evidence that Hyman’s trial counsel withheld from the jury went directly to the question of her credibility. Kevin Hinkson, a private investigator retained by defense counsel Scott Brettschneider, conducted a sight line study revealing that it was physically impossible for Ellis to have seen what she claimed from the third floor hallway. Hink-son gave Brettschneider his findings along with supporting photographs and a videotape, but Brettschneider did not call him at trial. The proof is unrefuted that Brettschneider declined to call Hinkson because of a fee dispute rather for any reason that could be called “trial strategy.” Second, the state courts had a clear opportunity to right Ellis’s wrong, as compounded by Brettschneider’s, before recourse was sought in federal habéas. That occasion was Hyman’s second post-conviction motion under N.Y.C.P.L. § 440 to vacate his conviction (the “Second 440”), where, in support of his new-evidenee and ineffective-assistance claims, Hyman presented copious materials probative of the Ellis recant including: (i) an affidavit from a priváte investigator, Irwin Blye, who au-diotaped an interview with Ellis during which she fully recanted; (ii) an affirmation from 440 counsel reporting that he had located Ellis in Virginia, and that in a series of four conversations she confirmed that she did not witness the gunfight but that she was reluctant to sign an affidavit because she feared a perjury charge; (iii) a sworn affidavit from Stacey Manning, a friend of Ellis’s to whom Ellis admitted that she did not witness the shooting; (iv) an affidavit from Kevin Hinkson, trial counsel’s investigator, who reported that he interviewed Amanda Benitez and that she told him, contrary to Ellis’s trial testimony, she was not in the third floor hallway with Ellis and did not see the shooting; and (v) a sworn affidavit from Benitez herself to the same effect. On the ineffectiveness branch of the claim, Hinkson’s materials, coupled with a separate affidavit from Hyman’s father James Sanders, fully alerted the court to the disturbing probability that conflicting interests arising out of a dispute over payment of Hinkson’s fee, rather than trial strategy, explain why Brettschneider did not introduce Hinkson’s report. The Second 440 court denied relief on both procedural grounds and on the merits in a decision that, as will be discussed, is ultimately unsustainable. The Ellis recant was still a developing story, to be sure, but the court denied even a hearing to explore the troubling matters raised in Hyman’s motion papers that are at the heart of this federal proceeding. Now, in order to obtain relief from the Second 440 decision,- Hy-man argues, as he must, that on the merits of his ineffectiveness claim, the court unreasonably applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) within the meaning of 28 U.S.C. § 2254(d), and that his “actual innocence” should excuse the bar erected by the state court’s procedural rulings. Fast-forwarding to the innocence hearing in this Court: Hyman subpoenaed not only Ellis but also Benitez and Delain (Ellis’s other alleged companion at the window), and each made dramatic assertions—some believable, others not—about the night of the shooting and ensuing events. As discussed in detail throughout the body this opinion, the Court is convinced that, more likely than not, based on this new evidence, any rational juror would be unable to credit Ellis’s trial testimony; without question, therefore, any rational juror would likely have reasonable doubt about Hyman’s guilt. See House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (to prevail on an actual innocence claim, petitioner must show that “more likely than not, in light of the new evidence ... any reasonable juror would have reasonable doubt” about his guilt). To be sure, Ellis’s testimony was not the state’s only evidence, but the case against Hyman necessarily rises or falls with that testimony, so the loss of her credibility necessarily undermines the verdict. See McQuiggin v. Perkins, — U.S. -, 133 S.Ct. 1924, 1936, 185 L.Ed.2d 1019 (2013) (“The gateway should open only when a petitioner presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial’ ”) (quoting Schlup v. Pelo, 513 U.S. 298, 316, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)); Rivas v. Fischer, 687 F.3d 514, 543 (2d Cir.2012) (noting that “it may be enough for the petitioner to introduce credible new evidence that thoroughly undermines the evidence supporting the jury’s verdict”). Unquestionably, the state had a difficult case to try. Still, many of the assertions contributing to the verdict of guilt are tenuous at best. For example, as will be discussed, two of the weapons known to have been used in the shooting were a .45 caliber and a 9 millimeter handgun. Recovered shell casings established that these guns were fired from the street, where the cars were parked, and so it is one of these two guns that the prosecution insists, and that a jury had to believe, Hyman possessed and fired that night. But both guns were found 19 days after the shooting inside the spare tire well of Whitmore’s car—which had been parked in front of 1540 Hassock during the shooting and impounded by the police along with other bullet-damaged vehicles shortly after the scene was secured. The prosecution offered no explanation, but invited jurors to consider the implausible possibility that Hyman had somehow planted the weapons. House, of course, requires that the Court not fixate on Ellis or the guns recovered in Whitmore’s car but instead take account of “all the evidence, old and new, incriminating and exculpatory,” 547 U.S. at 537-38, 126 S.Ct. 2064 (emphasis added) and this, as the length of the ensuing factual presentation attests, the Court has done. “All the evidence” includes the full trial record and all of Hyman’s new evidence, including the hearing testimony, Hinkson’s sight-line analysis and the other materials presented at the Second 440 stage and—despite the Court’s lingering doubts that such materials belong in the analysis—even “old” materials that have been in the state’s file since the trial and were “newly” offered, at the gateway hearing, as purported “rebuttal evidence of guilt.” The conclusion remains inescapable: any rational factfinder exposed to the entire record as now constituted would have reasonable doubt about Hyman’s guilt. See House, 547 U.S. at 538-39, 126 S.Ct. 2064 (“the [actual innocence] inquiry requires the federal court to assess how reasonable jurors would react to the overall, newly supplemented record”). Passing through the gateway, then, to the merits of the ineffectiveness claim, the Court further concludes, as discussed more fully below, that the state court’s rejection of the claim is indefensible and, therefore, that the requirements of section 2254(d) have been met. Although AEDPA deference can at times look and feel like immunity it is nevertheless not absolute, and not a bar to relief on the unique and compelling facts presented here. The petition for a writ of habeas corpus is granted. Respondent is ordered to release Hyman within ninety days “unless New York State has, by that point, taken concrete and substantial steps expeditiously to retry [him].” Pavel v. Hollins, 261 F.3d 210, 220, 229 (2d Cir.2001) (reversing denial of habeas relief, holding petitioner was denied the effective assistance of counsel). II. “ALL THE EVIDENCE, OLD AND NEW ...” A. The Trial 1. Openings According to the prosecution’s opening statement, Jonathan Whitmore, also known as Cigar, and Derek Harris, also known as Mark Antony, or Wiz, were standing along the fence bordering the 1540 property armed with loaded .380 caliber pistols when two vehicles, a red Acura, driven by codefendant Osimba Rabsatt, and a green Mazda MX6, driven by Hy-man, “move[d] down Hassock Street in tandem,” and “stopped in tandem” in front of 1540. (T. 713). Rabsatt, according to the prosecutor, exited the driver’s side of the Acura and fired over the roof of the car toward Whitmore and Harris, while Hy-man fired through the passenger window of the Mazda in the same direction, and Whitmore and Harris fired back toward the vehicles. Together, these four and others “decided then and there that night to have this gunfight,” “to murder each other,” and turned the surrounding area into a “killing zone ... where anybody within the radius of where they were could fore-seeably be killed or injured.” (T. 713-714). (At the close of the evidence, as will be discussed, the trial court would rule that there was not an evidentiary basis for this “killing field” theory, and the state would pursue at closing solely the alternate theory that Hyman attempted to murder Whit-more, and that Whitmore fired back only in self-defense). On the subject of the weapons found in Whitmore’s car, the prosecutor argued, “Now, we’re going to see how the guns that these two used, the 9 millimeter and the 45, wound up in Mr. Whitmore’s car. And you are going to know and understand that perhaps somebody tried to throw a red herring [ ] the police’s way.” (T. 715). On behalf of Hyman, counsel Scott Brettschneider argued that jurors would have the “problem” of attempting “to reconcile this red herring” with the theory of the prosecution’s case; emphasized Hy-man’s repeated assertions of his innocence throughout interrogations; suggested that each of the witnesses had a close affiliation with Whitmore and a thus motivation to bend the truth in his favor; and urged jurors to consider carefully “how many guns possibly were fired” and to conclude that there was “not enough” to be sure what happened on the night in question (suggesting, essentially, that the police “took shortcuts” by going no further after the initial round of arrests). (T. 717-719). 2. Eyewitnesses other than Ellis In addition to Shaquana Ellis, four other individuals testified as eyewitnesses to a portion of the shooting that occurred on March 10, 2000 in front of 1540 Hassock Street: Margaret Contreras, Shereda Freeman, Lyon Burton, and Deborah McCoy. None of the four identified Hyman as a shooter, but the prosecution’s position at trial was that each nevertheless saw enough to “implicate” Hyman. (T. 2173). Careful review of the testimony of each witness, however, strongly indicates otherwise. a. Margaret Contreras and Shereda Freeman Contreras and Freeman were both sitting on tenant patrol with Medina when they heard what sounded like firecrackers, first at a distance from the lobby then a second round much nearer. Once they were sure it was gunfire, they ran to the elevator for cover. Medina, however, “just stood there” and “wouldn’t move,” and then “threw herself on the floor to crawl toward the elevator” (T. 1037-38); Contreras realized Medina had been shot, “grabbed” her and “pull[ed] her into the elevator.” (T. 1037). As for what she witnessed, Contreras testified that “at the time when [she] was pulling Maria in, someone opened the [lobby] door and [she] s[aw]—you know, some of the people coming into the building, but we were too busy pulling [Medina] in. And [she] s[aw] cars but could only remember one.” (T. 1038). She described the car as “dark greenish,” and further testified that she “saw the window was down, and ... saw something silverish from the window” that “looked like a gun but it was like a flash.” (T. 1038). Shown a pair of photographs of the green Mazda that Hyman admitted he drove and parked in front of Redfern on the night of the shooting, Contreras said yes, that was the car she caught a glimpse of that night. Whether Contreras genuinely saw what she claims is doubtful: on cross, Contreras confirmed that she was “trying to put everyone into the elevator” and “w[as]n’t looking to see if [she] could see something.” (T. 1049). She did not tell the first officer who interviewed her (Officer Robert Player) about the green car or the flash, and later spoke to Detective Keegan in her apartment and again did not say anything about seeing the car or a flash, and explained that she withheld the information because the officers “didn’t ask [her] that exact question.” (T. 1055, 1095-96). Under cross-examination, Contreras admitted that she did not see the green car “as the shots were being fired.” (T. 1056). She elaborated: “I said, when the door was open[ed], while we were pulling Maria into the elevator, when I looked to the side there is when I saw this car. It was very fast. I didn’t stand there looking at the car. It was just a fast movement. It was green. It was fast. The door slammed and that was all I s[aw], but it was dark green.” (T. 1056). An additional problem with Contreras’s credibility is that, for the two-year period between the shooting (March 10, 2000) and her trial testimony (March 2002), Contreras withheld from law enforcement the fact that she saw Whitmore carrying a gun as he ran into the lobby after Medina was shot. The testimony came in response to a specific cross-examination question, and was a surprise to all. (T. 1057). The trial court told the prosecutor it was troubled that none of “the paperwork” mentioned either the dark green car or the fact that Whitmore was carrying a gun. (T. 1065-67). The prosecution confirmed to the Court that the first time it knew that any of its witnesses saw Whitmore carrying a gun as he ran into the lobby was just then, when Contreras testified. (T. 1063). The prosecutor further admitted that he did not know until a month before trial that Contreras was going to testify that she saw a flash and a green vehicle driving away. (T. 1069). Defense counsel persisted, asking, “you never told the tens of police officers who came and interviewed you that you saw Jonathan Whitmore with a gun?” Contreras replied, “No.” (T. 1080 et seq.). She confirmed that this moment in the trial was the first time she told anyone, and stated that if she had not been specifically asked that question by the prosecutor or defense counsel, she would have continued to keep the fact secret. (T. 1080). Contreras also confirmed that Whitmore eventually took refuge in her apartment, and said he was sorry for what happened. (T. 1084). Turning to Shereda Freeman, her testimony does not extend beyond a general description of the sounds of the shooting and the ensuing efforts to get Medina into the elevator after she was shot. Freeman did not see the vehicles outside, but did see Whitmore running into the building as she helped Contreras pull Medina into the elevator; she said it looked like “[h]e was trying to, you know, get to safety, get to cover.” (T. 1666). In sum, neither Contreras nor Freeman offers evidence of Hyman’s guilt. b. Lynn Burton Lynn Burton was also a 1540 resident and member of tenant patrol. When the shooting began, Burton was in her apartment (3C), sitting in a chair by one of the windows that faced Hassock Street. (T. 1593). Burton’s account differs from Ellis’s in that Burton said she saw three, not two, cars double-parked in front of the Friendly Market across the street: “a green jeep, a red color car with dark tinted windows” and “behind that... a dark colored car.” (T. 1594). She saw “shots being fired from two vehicles ... from the red vehicle and the dark colored vehicle that was behind the red vehicle.” (T. 1594). She was not able to see who was firing. (T. 1595). Shown the photographs of Hyman’s green Mazda, Burton stated that she recognized the vehicle as the “dark eolor[ed]” car; she also repeated that she “saw shots come out of that car” but could not say how many. (T. 1596). Burton added that, “with the red car it seems like the shots were a little different from ... the green car,” and that she was “not familiar with guns... and all [she] s[aw] was some fire coming out of a window.” (T. 1628). Burton was sure that there was no one standing outside the vehicles, and that she did not see Jonathan Whitmore that night; she knows him well because his mother lives in the building. (T. 1608-09,1612). In sum, Burton does not identify Hyman as a shooter; although she testified that she saw shots being fired from a dark, or green vehicle, the value of her account is diminished by the degree to which it differs from the detailed account offered by Ellis, which served as the centerpiece of the prosecution’s case. Unlike Ellis in two respects, Burton (i) placed a third vehicle in the mix, and (ii) did not see anyone leaning out of the green car shooting with both hands. (T. 1612). c. Deborah McCoy Deborah McCoy lived in an apartment on the seventh floor of 1460 Beach Channel Drive, directly across from 1540 Hassock Street. She was at home playing cards with friends when she heard gunshots, ran to her kitchen window and saw in the street a black car parked behind a red car. The value of McCoy’s account is questionable because of the degree to which it conflicts with key features of Ellis’s account. Notably, McCoy testified that whoever was in the dark car exited the vehicle and then fired his weapon. See T. 1784-85 (“the guy in the black car,” whom she did not know and did not identify as Hyman, “got out and shot” and then “got back in”). Pressed, McCoy confirmed that she saw the driver of the black car exit his vehicle, and that he was “[s]tanding in the street” while holding a gun. (T. 1824). McCoy also said that, yes, she did see Whitmore, whom she knew well (his sister is her goddaughter and his mother is her son’s godmother), running along the walkway in front of 1540 Hassock shooting at Rabsatt and at the man firing from the black car. She also saw a man she knew as “Mark” or “Wiz” trying to get inside 1540 Hassock Street while shooting at the cars in the street. McCoy told the jury that she initially told the police that “all the shot first came from the cars, and at that point in time to defend themselves, Jonathan Whit-more and Mark Antony shot back at the people in the cars.” (T. 1813-15). McCoy also placed one of the calls to 911; none of these details are mentioned in that call. I Additionally, it is clear that the jury did not credit McCoy in one important respect: she offered the only direct evidence connecting codefendant Osimba Rabsatt to the shooting—she testified that she saw Rabsatt, whom she knew well from school, shooting from the driver’s side of the red car, over the vehicle’s roof, towards the “guys trying to run into the building” (T. 1784)—but Rabsatt offered two alibi witnesses and was acquitted on all counts. 3. Shaquana Ellis’s Trial Testimony As Ellis was about to take the stand, Brettschneider advised the court that he noticed two people he did not recognize enter the courtroom, and asked whether they were employees of the District Attorney’s office. The prosecutor told the court that Ellis had told him that “her life had been threatened on a number of occasions not only by [Hyman] directly but [Hy-man’s] girl,” and that someone told Ellis that “when she leaves [the] courtroom ... [Hyman’s] brother is going to kill her.” (T. 1540). Therefore, the prosecutor continued, his office “took steps to make sure that somebody was with her to make her feel secure,” since she “was here to identify [Hyman] and he knows that.” (T. 1540-41). a. Direct Examination Turning to the night of the shooting, Ellis was specific about where she was, and who was with her, at the time she allegedly saw the shooting: Q. And where were you? A. I was in the hallway Q. Which hallway, which floor? A. Third floor Q. And... who you were with? A. With two of my friends Q... .Who were your friends, please? A. Amanda and Shaquana? Q. Same name as you, Shaquana? A. Uh-huh. Q, What’s her last name? A. Delain? (T. 1545). Ellis reiterated this testimony on cross examination. See T. 1569 (“And [Delain] was standing right where you were with standing ... ? Yes.”); T. 1573 (“Was Amanda Benitez with you that night? Yes, she was.”). According to Ellis, the three young women were “|j]ust talking,” though Ellis and Benitez (she does not include Delain) were also “looking out the window.” Ellis, with Benitez watching along with her, then saw “two cars pull up,” a red Acura and a green two-door car. ⅛. 1547-49). “The red Acura was first, and then th[e] green car was behind it.” (T. 1554). The trial court asked Ellis about her vantage point: Q. Which window were you looking out of? A. I was looking out—well, I can’t really ex—the front window that’s facing the store? Q. Yes, what street does that face? A. I think Hassock Street, I guess. Q. And what store does that face? A. Friendly’s market. (T, 1547-48). Ellis said she was familiar with the red car because she had seen Hyman driving it before, and she knew him since junior high school (she was 17 or 18 years of age at the time of the trial). (T. 1549). She then testified as follows: Q. What if anything happened after the cars came around Hassock Street? A. They sat there for about a while. Then the windows—while the green window was down, and I just s[aw] Tullie. I s[aw] a ear. Then I s[aw] Tullie hanging out the— from the window, from the passenger side, and just fired off. Q. When you say fired off, what do you mean? A. Gunshots. Q. What if anything did you see at the red car? A. I couldn’t see. Q. Were you able to see the car? A. I s[aw] the car but I wasn’t sure who was in the car. I couldn’t see who was in the car. Q. Why not? A. The windows are tinted. Q. Now, just tell the jury how far away from the green car you were, if you can tell us? A. I can’t. I can’t?—really can’t say. (T. 1550-51). Ellis further testified that it “was dark” but, “[with] [t]he street light you can see because when he was hanging out—I know him so I could really see his face.” (T. 1551). Asked, “what was he doing that you could see his face?” Ellis replied, “[h]e was shooting.” (T. 1551). She was then asked to show the jury “what he was doing.” Her transcribed reply is: “He was hanging out from [sic] like this just shooting out, but he was hanging out with a hoody on just shooting out.” (T. 1552). At the prosecution’s request, with the aid of photographs of 1540 Hassock Street and an enlarged map of the scene, Ellis indicated to the jury where she was and the approximate location of the green car. (T. 1555-60). The following ensued: Q. How long were you watching this? A. About a minute. Not—I’m not— I’m not quite—I’m not sure. Q. That’s okay. You said he was shooting. How many shots did you hear or see? A. I heard a lot and I went back in the house? Q. Did you see guns in his hand? A. No, I s[aw] fee come out. I s[aw], was it [sic] fire, like red come out of the gun. Bullets. Q. Did you see anybody else on the street firing a gun that night? A. No. Q. Okay. A. I didn’t stay in the hallway long enough to see him or see anybody else shooting or—(T. 1552-53) (emphasis added). Notably, the use of the plural “guns” in the third question of the above-quoted excerpt is entirely the prosecutor’s, and not based on anything Ellis had yet said. Not only was no objection recorded, but the plural ultimately became Ellis’s testimony. First, Brettschneider himself incorporated the plural into one of his questions: Q. Okay. So the front portion including his head was sticking outside the car; is that correct? A, Yes. Q. And both hands—you saw both hands firing guns, is that correct? A. Yes. (T. 1569). Counsel for co-defendant Rabsatt then revived the subject during his cross-examination, with the apparent objective of trying to further exculpate his client by placing both of the weapons believed to have been fired from the street in Hyman’s hands: Q. Approximately how many flashes of lights of gunshot did you see coming from where you said Tully Hyman was? A. I say about four or five. Five, six. I’m not really sure how many. It was about five. Q. You said you saw him fire with both hands? A. Yes. Q. Indicating two separate weapons? (T. 1579). Brettschneider objected, the court sustained the objection, and then asked Ellis, “Did you see any guns at all at that time?” She replied: “I didn’t see guns, but I s[aw] fire coming from his hands so—” and the court interrupted, asking, “From one hand or both hands?” and Ellis replied, “I’m not sure was it both or not.” (T. 1579). Counsel for Rabsatt resumed: Q. Well, whenever you were indicating you were indicating both hands. Is that what you saw? A. Yes. Q. You saw flashes of light from both hands in the way that you’ve been describing? A. I don’t remember. Q. But you saw both hands moving? A. Yes, I—yeah. Q. Were you able to see the hands or were you able to see the flashes of light? A. Flashes of light. Q. And you saw flashes of light indicating both hands were moving? A. I really don’t remember. (T. 1579-80). b. Cross-Examination In response to two separate Brettsch-neider questions, Ellis admitted that when initially questioned, she told the police that she did not see any part of the shooting. (T. 1572, 1576). Brettschneider’s ensuing line of inquiry addressed the possibility that Ellis lied to protect Whitmore because of her relationship to him. Although counsel did not succeed in eliciting anything approaching a full admission regarding bias or fabrication, counsel did elicit some facts strongly suggestive of both bias due to Ellis’s relationship with Whitmore, and of Whitmore influence on her testimony. For example, Brettschneider asked Ellis whether “it was only after Jonathan Whit-more was arrested” that she “c[a]me forward to the police and indicate[ed] that [she] saw Tullie Hyman shooting at people,” and she said “no,” insisting that she did not learn until the following morning, when she was at the precinct, that Whit-more had been arrested. (T. 1570). This was so, she maintained in response to Brettschneider’s question, even though she was, according to her principal testimony, physically in the 1540 building during the shooting and immediate aftermath. (T. 1570-71). Returning to the fact that she claimed to be on the third floor, and that Whitmore was on the fourth, counsel pressed: “Are you telling us you were not aware that a floor above you where you said that you were standing [that] ... the police were trying to get Jonathan Whit-more to surrender ...but Ellis was adamant that she “did not know Jonathan Whitmore was arrested until the next day, until [she] got to the precinct.” (T. 1571). Ellis did admit that she had received “a letter or two” from Whitmore while he was in prison and that he was the father of her cousin’s child, and when offering their ages, she referred to Whitmore familiarly as “Jon” rather than Jonathan. (T. 1563-64) (“John’s daughter is four and [Ellis’s cousin] is about 25.”). During the separate cross-examination by Rasbatt’s attorney, Ellis said that in addition to Whitmore’s usual nickname, Cigar, she also called him Buff. (T. 1582). She acknowledged that he was a member of “the dog pound crew,” and that the letters “DP” were “all over the building” as well as on a tattoo worn by “Wiz.” (T. 1584). She further acknowledged that she often saw Whitmore, Mickey and Wiz hanging out in front of 1540, but not on the night of the shooting, and that Wiz and Mickey had access to Whitmore’s Ford Taurus, which all three shared. (T. 1585-87). In response to Brettschneider’s question, Ellis denied that Whitmore had paid her to go to the police precinct after the shooting or to incriminate Hyman, and then volunteered that, “[she] didn’t see Jonathan.” (T. 1565). Counsel pressed: Q. You didn’t see Jonathan? A. No, I did not. Q. Did you see Jonathan Whitmore that night? A. I did not see Jonathan. I told you that before. Q. You didn’t see Jonathan Whitmore that night? A. No, I didn’t. Q. You didn’t see Jonathan Whitmore running with a gun? A No, I did not. I told you I didn’t stay in the hallway long enough to see anything else. (T. 1565). Asked about it another way, Ellis said, no, she did not see who Hyman was shooting at. (T. 1566). Counsel challenged Ellis’s credibility on this specific claim in yet another exchange later in the examination: Q. Did you see the cars drive away? A. No, I did not. Q. Did you call the police? A. No, I did not. Q. Did you ever know that somebody was shot that night? A. I didn’t know ‘til the cops and everybody else had c[o]me. Q. And it’s your testimony that you never spoke to Jonathan Whitmore that night? A. No. Q. Speak to his mother? A. No. Q. Speak to anyone on his behalf? A. No, I did not. (T. 1576). Finally, Brettschneider confronted Ellis directly with the 'possibility that he may have proof that she told others that she did not actually see the shooting: Q. Did you ever tell Amanda Benitez to go to the police and to lie and to tell them that she was there with you and that you saw Tullie Hyman shoot out of a green car? A. No. Q. Well, did you ever tell a private investigator by the name of Kevin Hinkson that you didn’t see anything? A. I don’t know which cop or detective it was, but I recall telling some of that. Q. You do recall telling some of that? A. That night it happened, yes. Q. No, after that? A. No. Q. You never told a private investigator that you didn’t see Tullie Hyman that night, and you were with Amanda Benitez at that time and that Amanda Benitez told the private investigator with you that you both did not witness this? A. No, I did not. (T. 1572-73). 4. Police Witnesses a. Ballistics There was a considerable body of testimony concerning the recovery and interpretation of ballistics evidence. See generally T. 1166-1286 (Detective Noya); T. 1309-22 (Detective Hensen); T. 1405-1434 (Officer Player); T. 1435-1473 (Detective DiTommaso); T. 1475-1526 (Detective Tamburri); T. 1895-1927 (Sergeant Chadwick); T. 1930-59, 1984-94 (Detective Cash-en). None directly implicated Hyman. Nevertheless, the prosecution relied heavily on inferences that could be drawn from the ballistics to advance its theory for what occurred on the night of March 10, 2000. The evidence established that officers responded promptly to the scene of the shooting and had the area secured within twenty minutes. Thereafter, they recovered a substantial volume of ballistics evidence, consisting of: discharged shell casings (the location of which corresponds, roughly, to where a weapon was fired); actual weapons; and fired bullets or their remnants (consisting, as noted earlier, either of fragments of bullet material (lead) or bullet coating (copper or brass jacket-ing)). More specifically, police recovered the following discharged casings: four .45 caliber shells, twelve .380 shells, and fourteen 9mm shells. The .45 caliber and 9mm shells were concentrated in the middle of the roadway, where the prosecution placed the red and green vehicles, while the .380 shells were in front of the building along the fence and on the walkway, which corresponded, according to the prosecution, to the movements of Whitmore and/or Harris. As for weapons, Detective Noya found a .380 handgun, wrapped in green towel partially inside a box, lying on the lawn in the rear of 1540 Hassock Street; Noya described the weapon as “falling out of the box” as if it “had been thrown out of a window.” (T. 1255). There is no dispute that this .380 belonged to and was fired by Jonathan Whitmore. Two other recovered weapons were also linked to Whitmore: nineteen days after the shooting, an Intra-tech 9mm semiautomatic handgun with two magazines (or ten rounds) of ammunition and a .45 caliber handgun were found inside the spare wheel well of Whitmore’s Ford Taurus, which had been in police custody since the night of the shooting. No testing connected either of these weapons in any way to Hyman. Analysis of the recovered materials established the following: six of the twelve .380 shell casings recovered from the fence and sidewalk areas were fired by the .380 handgun belonging to Whitmore and found outside his mother’s apartment; all fourteen of the 9mm shell casings recovered from the street were fired by the 9mm gun found in the trunk of Whitmore’s car; and all four of the .45 caliber shell casings recovered from the street were fired by the .45 caliber gun found in the trunk of Whit-more’s car. The only unaccounted for shell casings are the remaining six.380’s. Although the state understood but did not emphasize that there may have been more than four shooters, the unrecovered weapon that would be the source of these casings is not relevant here, for the state took the unequivocal position at trial that the bullets that killed Maria Medina came from one of the two guns fired toward the 1540 building from the vehicles double-parked in the street, viz., either the .45 caliber or the 9mm. (T. 2170-2199). As noted, (a) there was no evidence connecting either of these weapons to Hyman, and (b) only the preposterous suggestion that Hyman planted the weapons was offered to distance the guns from Whitmore. Finally, to establish the scope and scale of the shooting activity, the prosecution elicited testimony as to the many locations where bullet damage was observed. In addition to penetrating the 1540 Hassock Street lobby (and killing Medina), bullets also caused damaged in apartment 2C on the second floor of 1540 Hassock and the Friendly Market across the street. Fast-forwarding to the gateway hearing in this Court, the prosecution made the following concessions concerning the ballistics evidence: Court: Can we agree among us that there’s no ballistic evidence that ties [Hyman] into this particular crime? A. I would agree ... I don’t believe that the ballistics evidence is probative as to— Court: [Hyman’s] guilt. A. As to [his] participation... Court: When I say ballistics evidence, I mean lab testimony. I don’t mean where shell casings were recovered and so forth. A. I don’t recall any lab testimony that would actually be probative as to [ ] who [was] involved in this incident. Court: Do you agree with that? A. Certainly not Mr. Hyman, at any rate. (H2 at 45-46). b. Hyman’s Statements; Recovery of the Mazda and the Acura The content of Hyman’s statements came in through Detectives Richard McCabe and Herbert Shedrick. Detective McCabe testified that he interviewed Mr. Hyman at the 113th Police Precinct on Saturday, March 11, 2000, the day after the shooting, following Hyman’s voluntary surrender. After a Miranda reading and waiver, Hyman told McCabe, in essence, that he was the victim of a shooting. (T. 1382-89). Hyman wrote out his statement, signed it, and McCabe read it into the record: On Friday [March 10, 2000] when I came home from court Shakina called me and we were going to meet later 8:00 or 9:00. I would pick her up at her building, the last one. I drove down the street, the one way and pulled up behind a white civic. I put [on] my hazard indicators, took the car out of gear, put it in neutral and pulled the emergency brake up. I looked over by the stores and the building. No one was there. Dark station wagon was backing across from me. Then I heard three or four shots. I looked in my door mirror and saw two guys coming up behind me from the sidewalk firing. I got low in the car. I tried to put the car in gear but it stalled out. I got it back on. I saw two guys get out of the wagon and they were firing in my angle, I got the car in reverse and went around the civic. Made a left at the light and went to my brother’s house and told him what happened. Grabbed some clothes. Called my girlfriend and left. (T. 1388-89). As answers to specific questions, Hyman told McCabe that he had been going out with Shakina for five months; that she did not live at Redfern but “hangs out” there; that Hyman was alone in his car; that he had been receiving crank calls for two weeks; and that “if [he] had [his] pick,” he would say that they were from “[t]he people from Redfern.” (T. 1389). The following day—Sunday, March 12, 2000—Hyman was transferred from the 113th to the 101st precinct, where he was placed in a cell in the detective squad room. He specifically asked to speak with Detective Herbert Shedrick apparently because, like Hyman, he was African-American. (T. 989). Hyman told Shedrick that on March 10, 2000, at approximately 7:00 p.m., he drove to 1540 Hassock Street in a red Acura to pick up a girl that he had been seeing for five months and that, after double-parking his vehicle in front of the building, he saw two men coming out of a car parked behind him. (T. 858-68). Hyman further told Shedrick that the two men started shooting at him and, as he tried to start his car to get away, other people started shooting at him from the side of his car, and he managed to flee. (T. 868). According to Shedrick, approximately two hours later, Hyman spoke with him again, and during this second conversation, stated that he had in fact been driving a green Mazda that he “just recently bought,” and not a red Acura. (T. 870). According to Shedrick, Hyman also told him where he had parked the car, and when Shedrick and Cashen went to that location (the garage of Hyman’s aunt’s house, approximately 20 minutes away), the vehicle was there. (T. 935-37). Shedrick noticed that the passenger-side car window was broken; both Cashen and Shedrick noticed bullet holes on the front and side of the car. (T. 985,1955-56). On March 14, 2000, Detective Noya examined the green Mazda and found two bullet impact marks on the front hood, two bullet holes on the passenger-side door, a bullet hole on the right rear bumper, and a possible bullet hole in the flat, right front tire (T. 1240). He recovered two deformed lead bullets from the passenger-side door; a deformed jacketing from the rear right fender, and a deformed lead bullet from inside the right front tire (T. 1241-42). As for the red’ Acura, Detective Brian Henson testified that, in response to an anonymous telephone call received at the precinct, he went to the vicinity of Beach 60th Street, where he found the parked vehicle; it showed no signs of bullet damage. (T. 1300-1303,1337-38). 5. Hyman’s Grand Jury Testimony The prosecution also admitted Hyman’s grand jury testimony, which spans eleven pages of the trial transcript. (T. 1725-1736). The narrative reads essentially the same as the statements Hyman gave to McCabe and Shedrick: while waiting for his girlfriend, he “heard multiple shots coming from the back of the car,” then “scrunched down,” saw two other men firing at him, eventually switched on the ear, put it in reverse to go around a white civic, and fled. In response to specific questions, Hyman testified that he was driving a green Mazda MX6, a vehicle registered in someone else’s name but for which he was making the payments. He was familiar with the red Acura, which belonged either to his mother or his brother and which he used to drive before he bought the Mazda. Hyman further testified that he was unarmed, and that the Acura was not at the scene at all that nigfrt. He also reiterated that he did not know Jonathan Whitmore, did not threaten him, and did not recognize him as having been at the scene of the shooting. Finally, when pressed on his earner suggestion that his girlfriend Shakina might have set him up, he backpedaled somewhat but did not abandon the idea altogether. 6. The 911 calls Nine calls to the 911 operator were introduced. Callers 1, 2, 3, 4 and 7 describe generally the fact that a shooting occurred and that a woman had been shot. (Caller 2 remarks that “a lady has been shot,” and “I don’t know who did it”; Caller 3 reports that “there was a whole bunch of gun fire,” and Caller 4 notes that “they were shooting into the building”). Caller 5 reports that “there was a man with a gun in front of the building.” Caller 6 states: “if the police were smart they should look at apartment 4B and 6D ... Jonathan, I don’t know the other guy.” Caller 8-9 (the same individual calling back after a dropped call) states: “I’m just calling to let you know the shooter ... still in the building... apartment 4C and 6C ... his name is Jonathan,. his mother live in the building ... the other one is in the building ... I don’t know his name ... he’s black, dark skink kind of chubby, about 5’6‘ ...” In his second call he states: “Jonathan, that’s the guy who did the shooting ... his mother lives there ... he ran in the building ... and he drives a station wagon parked at the crime scene right by the telephone pole.” 7. Defense Case Hyman did not put on a defense. Rab-satt called his brother and another witness who both testified that Rabsatt was with them, and not at 1540 Hassock Street, at the time of the shooting, and in summation attacked the credibility of Deborah McCoy, the only witness who placed him at the scene. 8. The Jury Charge on Accessorial Liability As will be discussed, the Schlup standard considers what “reasonable, properly instructed jurors would do.” House, 547 U.S. at 538, 126 S.Ct. 2064 (internal quotation and citation omitted). The parties do not dispute the correctness or application of the trial court’s principal instruction on depraved indifference murder; the only issue warranting attention is the scope of accessorial liability. As late as the charging conference the prosecution was still pursuing alternative theories: ie., both that Hyman came to Hassock Street with the intention of killing Whitmore, who fired back in self-defense, and that all shooting participants were liable for Medina’s murder on the “pre-arrangement” acting-in-eoncert theory recognized in People v. Russell, 91 N.Y.2d 280, 670 N.Y.S.2d 166, 693 N.E.2d 193 (1998). Under Russell, a defendant can be convicted of depraved indifference murder on an accessorial liability theory where there is no proof as to who fired the stray bullet that killed an innocent bystander, but only if there is some proof of prearrangement, or tacit agreement to engage in the gun battle that placed the life of an innocent bystander at risk. Apparently believing that Contreras’s surprise testimony, by placing a weapon in one of the joint participant’s hands, bolstered this theory, the prosecution asked for a Russell jury instruction. The trial court rejected the request, limiting the prosecution to the theory set forth in the bill of particulars it furnished to the defense, which stated that Hyman and Rabsatt, “acting in concert... engaged in a gunfight in an attempt to murder” Whitmore, and “fired several shots on a residential street causing a bullet to strike” Medina. (T. 2086). The court found that there was no evidence of pre-arrangement or of “the mutual combat killing zone ... described in great detail in Russell.” (T. 2008). The court also expressly prohibited the state from “argu[ing] a killing field scenario unsupported by the evidence.” (T. 2089). (Inexplicably, in its post-gateway hearing brief, the prosecution nevertheless urges this Court to conclude that Hyman is guilty under People v. Russell merely because he was “present in one of the cars that was involved in the shooting.” Respondent Post-Hearing Memorandum of Law at 47. Instead, the trial court instructed on accessorial liability as follows: Our law defines the circumstances under which one person may be criminally liable for the conduct of another. That definition is as follows: When one person engages in conduct which constitutes an offense, another is criminally liable , for such conduct when, acting with the state of mind required for the commission of that offense he solicits, request, commands, importunes or intentionally aids such person to engage in such conduct. Under that definition, mere presence at the scene of a crime even with knowledge that a crime is taken [sic] place or mere association with a perpetrator of a crime does not by itself make a defendant criminally liable. (T. 2214-15). 9. Verdict The jury convicted Hyman of one count of second-degree murder, N.Y. Penal Law § 125.25(2), one count each of criminal possession of a weapon in the second and third degree, P.L. §§ 265.08(2), 265.02(4), and reckless endangerment in the first degree, P.L. § 120.25. The jury acquitted Hyman of the separate charge of attempting to murder Jonathan Whitmore. The jury acquitted Rabsatt of all charges. 10. Sentencing At the start of the sentencing proceeding, held on May 15, 2002, Brettschneider advised the court that subsequent to the conclusion of the trial, he was able to locate and interview Amanda Benitez, and that she furnished a statement that refuted Ellis's trial testimony. (S. 6). Brettschneider acknowledged that his private investigator had obtained Benitez’s statement prior to trial, but urged that the court treat it as newly discovered evidence because Benitez remained unavailable during trial. (S. 6-8). The court treated the disclosure as a motion to adjourn to allow time to prepare a C.P.L. § 330.30 motion to vacate, and denied the adjournment request, noting that it was counsel’s third sentencing adjournment request and admonishing counsel that C.P.L. § 330.30 relief requires a formal, written motion. (S. 9, 14-15). Brettschneider nevertheless discussed the problematic nature of the verdict, returning to the principal points of his trial summation. Among other things, Brettsch-neider told the court that, “to this day, there has not been a reasonable explanation of how that weapon that allegedly was in Mr. Hyman’s hands... ended up in the trunk of Mr. Whitmore’s vehicle,” and that each of the witnesses “had some bias through either relationships or friendships” with Whitmore or others. (S. 20). Despite his conviction, Hyman passionately re-asserted his innocence. (S. 22-23). He insisted that he “was being fired upon that night as well,” that he “almost lost [his] life in that car,” and that he “never had a gun.” (S. 23). He reiterated that “they were shooting up [his] car” and that, “[i]f [he] would have died in that car ... they would have found no gun on [him].” He also emphasized that he “did the best thing” and “went to the police ... didn’t run from the law,” and that it was “an injustice for an innocent man to go to jail for something he didn’t do.” (S. 22-23). B. State and Appellate Post-Conviction Proceedings 1. Direct Appeal The appellate brief prepared on Hy-man’s behalf by public defenders raised a single claim, challenging one of the prosecution’s peremptory challenges during jury selection; Hyman advanced several additional claims in a pro se supplemental brief, including that one of the witness’s photographic identifications was suggestive, that the trial court erred in failing to issue a missing witness instruction, that the murder and weapons possession convictions were inconsistent with the acquittal on attempted murder, and that the evidence was legally insufficient. The Appellate Division, Second Department, unanimously affirming the conviction, rejected each of these claims. People v. Hyman, 15 A.D.3d 417, 788 N.Y.S.2d 863 (2d Dep’t 2005). The appellate court held that the sufficiency challenge was unpreserved but that, in any event, it lacked merit, finding that “the evidence was legally sufficient to establish guilt beyond a reasonable doubt.” Hyman, 15 A.D.3d at 417, 788 N.Y.S.2d 863, Additionally, the court concluded that, “upon the exercise of [its] factual review power, [it was] satisfied that the verdict was not against the weight of the evidence.” Id. The New York Court of Appeals denied leave to appeal. People v. Hyman, 4 N.Y.3d 854, 797 N.Y.S.2d 428, 830 N.E.2d 327 (2005). 2. First State Post-Conviction Motion In his first post-conviction motion to vacate pursuant to C.P.L. § 440.30(l)(a), Hy-man sought DNA testing on the intact 9mm Intratech pistol found in Whitmore’s car. He argued that such testing would reveal that he did not possess the weapon on the night of the shooting. The court denied the motion, concluding that because the gun was in Whitmore’s car for nineteen days, it was subject to contamination. The court granted Hyman’s motion to reargue and upon reconsideration, reaffirmed its initial ruling denying DNA testing. The Appellate Division granted Hy-man leave to appeal the decision denying DNA testing and ultimately affirmed that decision, concluding that Hyman failed to show that DNA testing results would have resulted in a more favorable verdict. People v. Hyman, 51 A.D.3d 689, 858 N.Y.S.2d 240 (2d Dep’t 2008). The Court of Appeals denied leave to appeal. People v. Hyman, 10 N.Y.3d 960, 863 N.Y.S.2d 144, 893 N.E.2d 450 (2008). 3. The Second 440 By motion dated July 7, 2008, Hyman moved in Queens County Supreme Court pursuant to C.P.L. § 440.10 for an order vacating his conviction on the ground of newly discovered evidence, pursuant to C.P.L. § 440.10(l)(g), based principally on the Ellis recant and the materials corroborating it, and ineffective assistance of counsel, pursuant to C.P.L. § 440.10(l)(h), based principally on Brettschneider’s failure to call Investigator Hinkson or to pursue Benitez. In support, Hyman submitted a wealth of materials genuinely calling into question Ellis’s credibility and Brettsch-neider’s omission. Starting with Hinkson, Hyman’s second 440 motion papers included the investigator’s signed and sworn affidavit in which he attests as follows: I was contacted by attorney Scott Brettschneider to conduct an investigation regarding .[this] case prior to the commencement of the trial in the year 2002. At Scott Brettschneider’s Request I traveled to 1540 Hassock Street, Far Rocka-way New York, and conducted an investigation regarding the [case]. [W]hile at 1540 Hassock Street I went to the 3rd floor stairwell and hallway windows and looked out toward Hassock Street and determined that it would be impossible to observe the events of the shooting as described by certain witnesses, whose statements were provided to me by attorney Brettschneider from various police reports. I made a VHS video recording and took still photographs from the third floor windows aiming toward Hassock Street depicting the view from the third floor stairwell and hallway. The video clearly memorialized the fact that the witness could not have made the observations of the shooting as indicated in her statements to the police. I provided attorney Brettschneider with the original VHS videotape along with my opinion of the witness’ ability to view the incident from the third floor stairwell and hallway windows. Thereafter attorney Brettschneider requested that I interview a witness named Amanda Benitez and she related that she was not actually present in the stairwell and hallway when the shooting occurred and was told by other people what happened and relayed that information to the police when she was interviewed. I provided attorney Scott Brettschneider with the witness statement of Amanda Benitez that was not signed or notarized as I was unable to locate Amanda Benitez after the initial interview to obtain her signature. I requested payment from Scott Brettschneider for the services rendered and was told that Tully Hyman’s family was responsible for the payment and would make the payment directly to me. I spoke with Tully Hyman’s father James Hyma