Trial Counsel Found Ineffective for Failing to Move to Reopen Suppression Hearing
Mr. Clark was charged with kidnapping. At his pretrial suppression hearing, the police testified that a witness’s identification of Mr. Clark’s voice formed the basis for the arrest. The police testimony did not link the arrest to that individual’s viewing of a photograph.
At trial, the individual at issue testified that he had told the police the voice of the alleged kidnapper, who he heard on the phone, was “possibly” that of Mr. Clark. The witness also admitted to testifying before the grand jury that he identified the voice after being shown a photograph of Mr. Clark.
After Mr. Clark’s conviction was affirmed on appeal, he moved, pursuant to CPL § 440.10, to vacate the judgment on the ground of ineffective assistance of counsel. His claim was premised on counsel’s failure to move to reopen the suppression hearing based on the individual’s trial testimony that was contrary to the suppression hearing testimony.
The Appellate Division agreed, finding that counsel was ineffective. The Court noted that the witness’s identification of Mr. Clark’s voice as a perpetrator of the crime was the primary basis for Mr. Clark’s arrest. But this was called into question in light of the individual’s trial testimony. Because the police testimony at the suppression hearing regarding the identification of the voice “was more definitive and unequivocal,” the trial attorney’s failure to move to reopen the suppression hearing was objectively unreasonable and prejudicial to Mr. Clark. Accordingly, the case was remitted to the trial court for a reopened suppression hearing.
Sam Feldman represented Mr. Clark