“It is abhorrent to our sense of justice and fair play to countenance the possibility that someone innocent of a crime may be incarcerated or otherwise punished for a crime which he or she did not commit.”¹ With this principle in mind, I find that defendant's 1997 statement to the sentencing court,² although simple in tone, now speaks volumes: “I feel sorry for Mr. Joseph [deceased's] family but I didn't do it, that's all I have to say.” (Sentence transcript, May 7, 1997, at 9.) Those words sounded hollow to the sentencing court in 1997, for understandable reasons to be discussed in this opinion, but they have the resounding ring of truth to the court today.

Defendant, who was 16 years old at the time of the crime, has moved pursuant to CPL 440.10 for a vacatur of his judgment of conviction based on jury verdicts for murder in the second degree and criminal possession of a weapon in the second degree and the vacatur of his concurrent sentences of 25 years to life and of 7½ to 15 years imposed on May 7, 1997. His *2 well-drafted papers were originally submitted to the court pro se, and superseded by a meticulous and well-documented set of motion papers prepared by counsel³ after her appointment to represent him on this motion. An evidentiary hearing was conducted over the course of a two-week period, from April 13 to April 24, 2009. It was based on defense counsel's voluminous set of moving papers, to which the District Attorney responded, not in writing,⁴ but by consenting to this hearing, without making any specific concessions regarding the merits of the motion. Defendant bases his CPL article 440 application to vacate his judgment of convictions on four interrelated claims: (1) ineffective assistance of trial counsel; (2) actual innocence; (3) newly discovered evidence; and (4) prosecutorial misconduct.

*692 The first two claims are the most powerful. Indeed, in the prosecutor's post-hearing memorandum, the defendant's first claim, ineffective assistance of trial counsel,⁵ was conceded, which conclusion, after careful consideration, was adopted by this court, leading me to enter an order dated July 9, 2009⁶ granting defendant's motion on that ground. Further, based on the People's representation that it would be impossible to re-try defendant, the indictment was dismissed on consent. In that order, the court specifically reserved decision on the other claims made by defendant in his motion. Now, as limited by counsel during oral argument on July 9, 2009, the court only decides the merits of the second claim, to wit, actual innocence, although references to defendant's ineffective assistance of trial counsel claims, newly discovered evidence and some failures and excesses of the prosecution must necessarily be incorporated in this analysis.

The substance of the People's case at trial was the testimony of an alleged eyewitness, Sandra Woodard,⁷ and an acquaintance of defendant named DaShaun Reed, as well as the *3 testimony of the medical examiner and that of a detective who recovered the murder weapon, a .32 caliber pistol, from a garbage bag outside of the building where the fatal April 20, 1996 nighttime shootings took place, 153 Marcus Garvey Boulevard in Bedford-Stuyvesant, Brooklyn. Woodard said she saw defendant confront the deceased,⁸ Joseph Foster, at the door of the elevator in the lobby of that building, and after arguing about money and “stuff,” she saw defendant pull out an object, point it close to the deceased, then she heard shots fired and saw Foster fall *693 down and cry for help.⁹ Defendant threatened her as he was leaving the scene. He exited through the back door of the building to the outside. She then went out the front door and called 911 from a pay phone.

Reed testified that he and his cousin Dre (Andre Reed) encountered defendant as he raced up the back stairs¹⁰ between the first and second floors of that same building right after shots were fired, that defendant expressed regret for what he had just done, and that he and Dre then went with defendant into an unspecified second floor apartment. Reed also testified that he witnessed two incidents years earlier involving defendant's hitting the deceased with a bat and the deceased weeks later retaliating by slashing defendant on the side of his face.¹¹ Reed made the case against defendant even stronger at trial by testifying further that on the morning of April 20, defendant pointed to his facial scar in a local pizza parlor and announced to all within earshot *4 that he was, in effect, seeking revenge.¹² Finally, Reed testified that the next morning he heard defendant state that his (defendant's) mother threw the murder weapon down the house garbage compactor chute. He reported this to the police, who were able to recover the murder weapon from a garbage bag outside of the building.

At the hearing, Reed recanted every piece of this incriminating evidence, as he placed himself, not at the scene, but driving back to Brooklyn from the Bronx at the time of the shooting, which he learned about later that morning from Dre. While his recantation is more believable to the court than his implausible trial testimony, he failed to give any credible reason why he lied at trial and why he was now recanting. However, despite this lack of candor, much of his hearing testimony was supported by other evidence and it also served to eliminate conflicts with Woodard's testimony. Standing alone, this recantation would be of dubious probative value.¹³ In the context of the trial and the hearing testimony, however, even this recantation undermines the case the People presented at trial and tends to support defendant's actual innocence claim.¹⁴

Including defendant himself, there were four witnesses who testified to defendant's alibi, and two additional supporting witnesses who corroborated parts of the alibi but not at the very moment of the shooting of Foster in the lobby of 153 Marcus Garvey Boulevard.¹⁵ In sum and substance the alibi witnesses testified to being on an elevator with defendant and hearing shots fired as it ascended to the fourth floor of that building, which was the home of defendant and members of his family, on the night of April 20, 1996. Defendant recalled hearing the shots as *5 he rushed with the others from the elevator down the fourth floor hallway to his apartment, 4G. They all explained that they *695 had just left a nearby party celebrating defendant's two-year-old niece's birthday.¹⁶ Without any hint of rote adherence to a script, each of the witnesses testified credibly and consistently to essential facts of the alibi, the preceding family party, the shots heard in the ascending elevator or in the fourth floor hallway, and gathering in apartment 4G.

Except for the cross-examination of defendant, to be treated separately, not one telling point was raised on the cross-examination of these witnesses to shake their testimony or damage their credibility. On the contrary, the credence of their accounts of the incident was significantly enhanced by the fact that several of these witnesses appeared in defense counsel's office well before trial and related essentially the same exculpatory facts.¹⁷ This was established not only by their own hearing testimony, but also by notes which appellate counsel obtained from trial counsel's file, although trial counsel professed to have virtually no memory of these or any other facts of this case.¹⁸

The overriding theme struck by the prosecutor on cross-examination of each defense hearing witness was their failure to take any decisive remedial action when defense counsel rested without calling any of them as witnesses at trial. They were repeatedly asked why they did not complain to the court or more vociferously complain to the defense attorney and why they remained inactive until the instigation of this CPL article 440 motion years later. While this may have been a legitimate avenue of inquiry, the challenging and repeated nature of the *696 questioning along this line demonstrated to the court a lack of appreciation for the palpable powerlessness felt by each of these witnesses, who were for the most part unsophisticated and unschooled in the ways of the criminal justice system.¹⁹ Their failure to do more was quite understandable under the *6 circumstances, and in the eyes of the court in no way damages the strength or veracity of their testimony. Because of late notice of alibi²⁰ and defense counsel's decision not to call any of them, which was never adequately explained, it is most unfortunate, but understandable, that the prosecutor never interviewed them.²¹

Defendant did not testify at trial, but he did testify at the hearing. His direct testimony was fairly straightforward and consistent with his other alibi witnesses, but by no means did I perceive it to be a rehearsed recitation of the accounts of others.²² On cross-examination the prosecutor certainly scored points by emphasizing defendant's incorrigible and criminal conduct as a youth in his own community before the shooting and in prison, most of which conduct defendant had already candidly admitted on direct examination.²³ These serious negatives did not establish to me that he was lying at the hearing, although without the bolstering of his testimony by his many supporting witnesses, his credibility and his case would have been more problematic.

Defendant's trial counsel was appointed from the County Law article 18-B homicide panel to represent defendant. He has been a member of that panel since 1987. He appeared at defendant's arraignment in Supreme Court on May 9, 1996 and continued his representation through trial, verdict, sentence and the filing of a notice of appeal. He is an experienced criminal trial attorney and has tried hundreds of serious felony cases, including many homicides.

His cooperation with defendant's current counsel was in my view extremely reluctant. He repeatedly claimed to have no recollection of this case whatsoever during telephone communications with Ms. Fahey and the District Attorney's Office and on the witness stand at *7 this hearing.²⁴ During the hearing he insisted, as previously noted, that neither the exhibits nor the trial testimony that was brought to his attention refreshed his recollection,²⁵ although in matters of record he agreed he had no basis to dispute them.²⁶

Fortunately, trial counsel's notes, which were copied and given to appellate counsel when the first direct appeal was being prepared in 1998, enabled the parties and the court to reconstruct some of the pretrial events, which turned out to support the hearing testimony of family members of the defendant regarding their coming forward at a very early time with the same exculpatory account they gave at the hearing. Still, trial counsel's professed near-total memory failure made it difficult, *698 if not impossible, to determine the reasons for the many decisions and apparent mistakes he made, all of which proved disastrous for the defense at trial, the chief one being his failure to call the alibi witnesses.²⁷ His many other mistakes and failures went similarly unexplained and in the court's view cannot be justified.²⁸ For example, there is no evidence that counsel ever hired an investigator or visited the scene and there are strong inferences, which I *8 accept, that he did neither.²⁹ These and other demonstrated failures by the defense at trial, recited in the post-hearing memoranda of both sides, made it easier for the court and jury in 1997 to overlook the deficiencies in the prosecutor's case, thereby paving the way for the guilty verdicts which the court now labels a miscarriage of justice.

Defendant's direct evidence of actual innocence must be juxtaposed with and viewed in light of the glaring weaknesses in the People's case—admittedly less evident at trial because of the ineffectiveness of defendant's trial counsel, as exposed more fully at the hearing. For example, prior statements of Sandra Woodard, the lone eyewitness, to Detective Lawrence and on audiotape to an Assistant District Attorney, described a shooting dramatically different from her trial testimony.³⁰

I have no doubt that the trial Assistant District Attorney believed in her case against defendant and pursued the prosecution as a formidable advocate for the People. My criticism is *699 that the prosecutor too readily embraced the case handed to her by the police and the witnesses and ignored strikingly inconsistent prior statements and other leads that called into serious question the merits of the prosecution's case.³¹ The District Attorney's responsibility was much greater than advocating for the People and seeking a conviction; it was first to do justice.³² *9

As previously noted, the alibi witnesses, the only significant affirmative evidence in defendant's favor, were essentially kept under wraps by defense counsel until trial, so the prosecution can hardly be faulted for not reaching out to interview them and for not investigating the alibi in 1997. However, it ill behooves the prosecutor to now blame the defense, as was argued in the post-hearing memorandum, for not proving at this hearing that another figure prominently mentioned in the hearing as a major, convicted drug dealer and violent felon in the same housing project, one Michael Kirkland, ordered the hit on Foster, possibly executed by Reed's cousin Dre,³³ another often-mentioned shady character at those houses, and also that Kirkland orchestrated the frame-up of defendant for Foster's murder. It seems to this court that the foregoing is a plausible and even likely scenario to explain all these events, although it was not proved by anything close to admissible evidence sufficient to prosecute Kirkland.³⁴ But the time to have begun an investigation into Kirkland's involvement and any other person's criminal responsibility for this murder was in April *700 1996, and those responsible for pursuing this investigation should have been the police and the District Attorney. In the final analysis, defendant has no onus to prove who actually killed Foster, even while he assumes the burden of trying to establish his own actual innocence.

I do not conclude that the trial prosecutor's failures amounted to misconduct or constituted a “due process” violation of defendant's rights. Indeed, at oral argument after submission of post-hearing briefs, the defense did not press that claim. And there is general agreement that, since everything in the prosecutor's possession favorable to defendant was disclosed to the defense, it was mainly the ineffective assistance of counsel which crippled the adversarial fact-finding process. Nevertheless, the prosecutor's failure to investigate and, to a lesser extent, her conduct at trial can be faulted and, I believe, contributed to this miscarriage of justice.

In the area of investigative failures, I note a total failure to connect the evidentiary dots concerning the one and only true caller about this homicide to 911. There was sufficient documentary and audiotaped evidence available well before trial for the police and the prosecutor to have learned, as was clearly established at the hearing, that it was a female tenant in a second floor apartment of the same building, Judy Gregory, who made that call. Once that was known, *10 other salient facts would have emerged, such as that Sandra Woodard must have been lying about calling 911, and further that it would have been highly unlikely for the People's other main witness, DaShaun Reed, to have encountered defendant on the (back) stairs and in the second floor hallway right after the shooting without being noticed by Gregory and her guest Sarita Brevard.³⁵

Further, it now seems plain to the court that virtually no police or prosecutor in-depth investigation was done into the character and credibility of the People's main witnesses. While much of the scandalous information referred to at the hearing *701 about Reed and Woodard was in the form of general knowledge and reputation in the community, it is hard to believe that with a little effort the police and prosecutor would not have uncovered enough negative information to cause them to doubt the merits of the case against defendant.

What I characterize as prosecutorial excess at trial is highlighted in the summation argument that Woodard never wavered concerning her identification of defendant, whom she knew from living in the same building, as the shooter,³⁶ despite her blatantly inconsistent prior statements to Detective Lawrence and to an Assistant District Attorney under oath on audiotape. (See n 30, supra.) As far as I am concerned, it is a wholly inadequate answer for the prosecution to argue now that it was enough to disclose the inconsistent statements to defense counsel and that the trial record, in part, supported her summation argument.³⁷ The prosecution's obligations *11 go further than that.³⁸

This court acknowledges that as of yet no New York appellate court has expressly recognized “actual innocence”³⁹ as a ground under CPL 440.10 (1) (h).⁴⁰ However, I am now prepared to rule that, at least under the circumstances of this case, such a claim of actual innocence⁴¹ may be brought and the standard of proof for determining it is “by clear and convincing *12 evidence.”⁴² (See People v Cole, 1 Misc 3d 531, 543 [Sup Ct, Kings County 2003]; Cornell v Nix, 119 F3d 1329, 1332 [8th Cir 1997]; Ex Parte Elizondo, 947 SW2d 202, 209 [Tex Crim App 1996]; Miller v Commissioner of Correction, 242 Conn 745, 794, 700 A2d 1108, 1132 [1997]; cf. Carriger v Stewart, 132 F3d 463, 476-477 [9th Cir 1997].) Moreover, I am more than satisfied that on this evidentiary record defendant has met his high burden and has demonstrated that he was wrongfully convicted for the 1996 murder and weapon possession.⁴³ On this record, for the court to fail to remedy this injustice or fail to exonerate defendant would be unconscionable. Accordingly, this court now holds that defendant's judgment of conviction must be vacated on both the previously held ground of ineffective assistance of trial counsel and, *703 in addition, on the ground that defendant has proved his claim of actual innocence. To paraphrase the proposition with which I began this opinion, it would be abhorrent to my sense of justice and fair play to do other than to vacate defendant's convictions on both grounds and to declare that he is innocent of this horrible murder, and to ensure he does not continue to serve any more time in prison for these convictions.⁴⁴

Judgment of conviction for murder in the second degree and criminal possession of a weapon in the second degree vacated, and the indictment dismissed, nunc pro tunc to July 9, 2009.