April 22, 2026

Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Ira H. Margulis, J.), dated February 4, 2022, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Joel L. Blumenfeld, J.) rendered November 23, 2015, convicting him of kidnapping in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the order is reversed, on the law and the facts, and the matter is remitted to the Supreme Court, Queens County, for a reopened suppression hearing in accordance herewith and a new determination thereafter of the defendant's motion pursuant to CPL 440.10 to vacate the judgment.

The defendant was convicted, upon a jury verdict, of kidnapping in the first degree. The judgment of conviction was affirmed by this Court (see People v Clark, 194 AD3d 948 [2021]). Subsequently, the defendant moved pursuant to CPL 440.10 to vacate the judgment on the ground of ineffective assistance of counsel. In an order dated February 4, 2022, the Supreme Court denied the defendant's motion without a hearing. A Justice of this Court granted the defendant leave to appeal from the order, and we reverse.

A criminal defendant has a constitutional right to the effective assistance of counsel (see NY Const, art I, § 6; US Const 6th Amend). In evaluating a claim of ineffective assistance of counsel under the New York standard, "a court must examine whether 'the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation' " (People v Oliveras, 21 NY3d 339, 346 [2013], quoting People v Baldi, 54 NY2d 137, 147 [1981]; see People v Wright, 25 NY3d 769, 779 [2015]). Moreover, "[a] single error may qualify as ineffective assistance, but only when the error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial" (People v Caban, 5 NY3d 143, 152 [2005]; see People v Goodluck, 239 AD3d 674, 675 [2025]).

The defendant contends that trial counsel was ineffective for failing to move to reopen the pretrial suppression hearing on the basis that an individual had testified, during the trial, that he had told the police that the voice of the alleged kidnapper, who the individual had heard speaking on the telephone, was "possibly" that of the defendant, and the individual also admitted to testifying before the grand jury that he identified the voice after being shown a photograph of the defendant. Whereas, the police testimony at the pretrial suppression hearing regarding the same individual's [*2]identification of the defendant's voice, which formed the basis for the defendant's arrest, was more definitive and unequivocal, and did not involve the viewing of a photograph. We agree.

Courts have the discretion to reopen a suppression hearing based upon new facts, which could not have been discovered with reasonable diligence before the determination of the suppression motion, pertinent to the suppression issue (see People v Fuentes, 53 NY2d 892 [1981]). These new facts need not establish a constitutional violation on their face, but must be facts that would either materially affect, or have affected, the earlier determination (see People v Clark, 88 NY2d 552, 555 [1996]; People v Velez, 39 AD3d 38, 42 [2007]; see also CPL 710.40 [4]). Here, where the reliability of a witness's identification of the defendant's voice as that of one of the perpetrators of the crime, which primarily formed the basis for the defendant's arrest, was called into question in light of that witness's trial testimony, an issue of fact was raised regarding whether there was probable cause for the defendant's arrest (cf. Mitchell v City of New York, 241 AD3d 1165 [2025]). Although motions to reopen suppression hearings are generally denied where the new facts proffered go only to the circumstances surrounding the defendant's arrest, here, the defendant could not be presumed to know the basis of the communications or conduct between police, leading to his arrest (see People v Velez, 39 AD3d at 43). The failure of trial counsel to move to reopen the suppression hearing on this ground was therefore both objectively unreasonable as well as prejudicial to the defendant (see People v Kindell, 135 AD3d 423, 423-424 [2016]). Contrary to the People's contention, this is not a case in which trial counsel's error can be explained as part of any strategic design (see People v Clermont, 22 NY3d 931, 933 [2013]).

Accordingly, we remit the matter to the Supreme Court, Queens County, for a reopened suppression hearing in accordance herewith and a new determination thereafter of the defendant's motion pursuant to CPL 440.10 to vacate the judgment. Genovesi, J.P., Dowling, Wan and Quirk, JJ., concur.