(dissenting). Contrary to the majority’s determination, I believe that the detective’s trial testimony substantially undermined the prior suppression determination and that, under the facts of this case, defense counsel’s failure to move to reopen the suppression hearing deprived defendant of the effective assistance of counsel. Therefore, I respectfully dissent.
I.
The victim was tragically shot and killed in his home. Four people were eventually charged with crimes in connection with his death, including defendant and his half brother, who were tried separately. At a pretrial Huntley hearing (see People v Huntley, 15 NY2d 72 [1965]), Detective Michael DePaolis testified that, after he arranged to have defendant arrested in North Carolina on an open warrant, he and another detective traveled to North Carolina to interview defendant about the homicide. DePaolis testified to the following timeline at the hearing: first, he orally administered Miranda warnings to defendant (see Miranda v Arizona, 384 US 436, 467 [1966]); second, defendant told DePaolis “that he was going to take the blame for this murder because his brother had served enough time in his life”; third, DePaolis read defendant his Miranda rights from a North Carolina form; fourth, after waiting 45 minutes for a Miranda warnings form to be faxed from New York City, DePaolis read the New York City form to defendant and defendant waived his rights; and fifth, defendant made a written statement admitting that he, along with another person, shot the victim.
*85Supreme Court suppressed defendant’s statements on the grounds that DePaolis had not explained which Miranda rights were given to defendant before his initial oral statement, there was no testimony that defendant had waived his Miranda rights before making that statement, and defendant’s subsequent written admission was not sufficiently attenuated from his inadequately warned oral statement. The court denied the People’s subsequent motion to reopen the hearing because, even if the initial Miranda warnings had been further explained by DePaolis, according to the People’s motion papers, the warnings were still deficient because defendant was not informed that he would be provided with an attorney if he could not afford one, and there was still no basis for determining that defendant had waived his rights at that time. The People appealed the suppression order, certifying that, without defendant’s statements, they lacked legally sufficient evidence to proceed to trial (see CPL 450.20, 450.50).
The Appellate Division reversed and denied defendant’s motion for suppression of his written statement (51 AD3d 63 [1st Dept 2008], lv denied 10 NY3d 863 [2008], cert denied 555 US 1182 [2009]). The Appellate Division held that defendant’s written statement was sufficiently attenuated from his oral statement because defendant first admitted his involvement in the murder only after the detective had read him the warnings from both the North Carolina and New York forms, with an intervening 45-minute break. The Appellate Division relied heavily on the fact that, according to DePaolis’s hearing testimony, no questioning or, indeed, any communications— other than the reading of the Miranda warnings — occurred between the time of defendant’s initial oral statement and his subsequent warned written statement (see id. at 66).
At trial, defense counsel pursued a strategy of persuading the jury that defendant’s written statement was a false confession, as evidenced by his previous oral statement that he would take the blame for his brother. To a lesser degree, defense counsel also argued to the jury that the written statement was embellished by the transcriber, Detective DePaolis.
During DePaolis’s trial testimony, he revealed that, after defendant made the oral statement referring to his brother, defendant was interrogated for over an hour, during which time he orally related to the detectives the substance of his subsequent written statement. Defense counsel objected to the detective’s testimony about this second oral statement, noting *86that it had not been explored at the suppression hearing. In response, the prosecutor asserted that the second oral statement was substantively identical to the written statement. The trial court pointed out several times that the Appellate Division had apparently been unaware of this second oral statement or the fact that defendant had been interrogated for over an hour before he made the written statement, and the trial court observed that the lack of such awareness was, “[i]n part[,] . . . the basis for the Appellate Divisiones] finding that there was attenuation” between the initial oral statement and the subsequent written statement. Nevertheless, defense counsel did not move to reopen the suppression hearing to challenge the admissibility of the written statement despite the detective’s testimony arguably defeating the basis for attenuation. Instead, defense counsel maintained that excluding reference to the second oral statement would “obviate any problems.” The parties agreed to this course of action. The jury subsequently acquitted defendant of first-degree felony murder, but convicted him of second-degree intentional murder.
Defendant appealed and, while his appeal was pending, he moved, pro se, to vacate his conviction pursuant to CPL 440.10. Defendant argued, among other things, that trial counsel was ineffective for failing to move to reopen the Huntley hearing after DePaolis testified at trial. The People opposed defendant’s motion, and proffered an affidavit from defendant’s trial counsel, wherein he explained that his strategy at trial was to convince the jury that defendant’s written statement was false because he gave it only in an attempt to shield his brother from liability. However, counsel did not explain why he failed to move to reopen the suppression hearing after the detective’s trial testimony differed from that presented at the hearing and undermined the basis for the Appellate Division’s resolution of the attenuation question in the People’s favor.
Supreme Court denied defendant’s motion — also without specifically addressing counsel’s failure to move to reopen the suppression hearing — concluding that counsel had pursued a reasonable strategy at trial. In one order, the Appellate Division affirmed the denial of defendant’s CPL 440.10 motion and the judgment of conviction and sentence (116 AD3d 480 [1st Dept 2014]). The Appellate Division acknowledged that the detective’s trial testimony had revealed new material facts bearing on its earlier suppression determination. However, that Court held that, even assuming counsel lacked a strategic *87basis for failing to move to reopen the suppression hearing, defendant was not prejudiced or deprived of meaningful representation because, “although the information that emerged at trial gave defendant a stronger argument that his written statement was not attenuated, it did not give him a winning one” (id. at 481).
A Judge of this Court granted defendant leave to appeal (24 NY3d 1084 [2014]).
II.
In my view, defense counsel s failure to move to reopen the suppression hearing deprived defendant of review of a close suppression argument that, if successful, “could have been dispositive of the entire proceeding” (People v Clermont, 22 NY3d 931, 934 [2013]) in light of the People’s certification that they lacked legally sufficient evidence to prosecute without defendant’s statements (see CPL 450.20, 450.50). Further, to the extent that counsel’s failure to move to reopen the hearing was based on a strategy, that strategy was unreasonable.
Pursuant to CPL 710.40 (4), a suppression motion may be renewed, even after trial has commenced, upon a showing “that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion.” Generally, the decision of whether to grant a motion to reopen rests in the discretion of the trial court, but a defendant is not required to establish that the new facts are “outcome-determinative” or “essential” (People v Clark, 88 NY2d 552, 555-556 [1996]). The additional pertinent facts must merely be such that “would materially . . . have affected the earlier [suppression] determination” (id. at 555; see People v Delamota, 18 NY3d 107, 118-119 [2011]).
There can be no serious question that the revelation by DePa-olis at trial that he had engaged in an hour-long interrogation of defendant between defendant’s initial statement (that he would take the blame for his brother) and the time that defendant was given valid Miranda warnings was “material” to, and impacted upon, the Appellate Division’s earlier denial of suppression. As the trial court readily observed, the Appellate Division’s attenuation analysis relied, in large part, on the fact that defendant had made only a non-inculpatory, ambiguous, oral statement, and was not subjected to any significant interrogation, before the administration of proper Miranda warn*88ings preceding his written confession. Given the detective’s trial testimony and the People’s concession that the written statement merely memorialized the insufficiently warned oral statement of which the Appellate Division had no knowledge, defendant’s argument that the written statement was not sufficiently attenuated was “considerably strengthened” by the facts revealed at trial (Delamota, 18 NY3d at 118). Far from a “longshot” (majority op at 82), defendant would have been entitled to a reopening of the suppression hearing had such a request been made.*
In evaluating the prejudice that flowed from defense counsel’s failure to move for reopening, the Appellate Division erred by rejecting defendant’s ineffective assistance claim based on its conclusion that defendant did not have a “winning” suppression argument (116 AD3d at 481). Certainly, “[t]here can be no denial of effective assistance of trial counsel arising from counsel’s failure to ‘make a motion or argument that has little or no chance of success’ ” (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004]). However, where, as here, counsel fails to raise a close suppression issue, a defendant may establish that he or she was sufficiently prejudiced so as to undermine our confidence in the suppression proceedings (see Clermont, 22 NY3d at 934; see generally Stultz, 2 NY3d at 284).
It is undisputed that defendant was entitled to Miranda warnings before his initial statement and that, if those warnings were incomplete, the resulting statements must be suppressed (see People v Hutchinson, 59 NY2d 923, 924-925 [1983]). Even the warnings as recited in the People’s motion to reargue the original suppression determination were deficient, and it is, therefore, unlikely that the People would have succeeded in establishing the adequacy of those warnings if the *89hearing had been reopened. In the event the People did not succeed in that regard, suppression of defendant’s second oral statement and the subsequent written statement would have been required “unless there [was] such a definite, pronounced break in the interrogation that . . . defendant may be said to have returned, in effect, to the status of one who [was] not under the influence of questioning” (People v Chappie, 38 NY2d 112, 115 [1975]; see People v Paulman, 5 NY3d 122, 130 [2005]).
To determine whether a warned statement is sufficiently attenuated from an unwarned one, courts consider a number of factors, including
“the time differential between the Miranda violation and the subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police” (Paulman, 5 NY3d at 130-131; see People v White, 10 NY3d 286, 291 [2008], cert denied 555 US 897 [2008]).
According to the facts as elicited at trial, defendant was given incomplete warnings, made the initial suppressible statement that he was going to accept blame, then orally inculpated himself during an hour-long interrogation, was given the North Carolina warnings, had only a 45-minute break, was read the warnings from the New York form and waived his rights, and then gave his written statement — the content of which the People admitted was exactly the same as the previous oral statement. Based on this timeline, defendant had a strong argument that his written statement was not attenuated from his suppressible oral statements (see People v Bethea, 67 NY2d 364, 368 [1986]; compare People v Malaussena, 10 NY3d 904, 905 [2008]).
Although the Appellate Division found that defendant’s statement that he was willing to take the blame for his brother demonstrated an eagerness and willingness to speak to the police, we usually have found this factor to be met in cases where the defendant has voluntarily answered questions in a noncustodial setting, whereas, here, defendant was already under arrest and subjected to custodial interrogation at the *90relevant time (compare Paulman, 5 NY3d at 131, with Bethea, 67 NY2d at 368). Moreover, as far as can be discerned from the record, defendant was interrogated in the same manner, by the same detectives, and in the same location during the questioning that elicited each of the statements at issue. In addition, the break was merely 45 minutes long and, while it is true that defendant was apparently given incomplete Miranda warnings twice before that break, the People conceded at trial that the written statement was the culmination of defendant’s prior unwarned statements given over the course of the interrogation.
The Appellate Division also relied in its original attenuation analysis on the fact that defendant’s initial unwarned statement was “ambiguous” and not necessarily inculpatory; however, the trial testimony demonstrated that, in fact, defendant had made an additional oral statement — confessing to shooting the victim — before receiving complete warnings and making the written statement. Thus, the Appellate Division’s original attenuation determination was significantly undermined by the facts presented at trial regarding the circumstances of defendant’s written confession, and it is questionable whether the remaining factors relied on by the Appellate Division to uphold that determination, such as defendant’s criminal history, would have led to a finding that defendant was “returned, in effect, to the status of one who is not under the influence of questioning” (Chappie, 38 NY2d at 115). As a result, the detective’s testimony at trial did not merely give rise to “a motion or argument that has little or no chance of success” (Stultz, 2 NY3d at 287). Rather, the revelation at trial signified that defendant had a significant and close argument for suppression, which should have prompted counsel to move to reopen the hearing (see Clermont, 22 NY3d at 934).
Nor, as the majority concludes, was there a reasonable trial strategy that could account for counsel’s omission. Counsel’s strategy — to use defendant’s first statement, indicating that he would take the fall for his brother, to suggest to the jury that the written statement was false — simply cannot explain counsel’s failure to move to reopen the suppression hearing. Defendant had nothing to lose and everything to gain by revisiting the suppression question. If suppression was granted, defense counsel would have no need to use the first oral statement to justify the written statement — which would not have been admissible at trial — and the People had already *91certified that they lacked legally sufficient evidence without that statement. Indeed, suppression of the written statement had become even more critical by the time of trial because the People had discovered defendant’s DNA on a hat found in the victim’s room after the shooting. Defendant’s half brother was excluded as a contributor to the DNA mixture, tending to disprove counsel’s theory argued at trial that defendant’s half brother was the shooter and that defendant had falsely confessed to protect him.
By contrast, if the suppression determination was upheld— either because the People demonstrated that valid Miranda warnings had been given, or because the court determined that the written statement was still sufficiently attenuated from the oral ones — defendant would have suffered no prejudice. The People maintained at trial that the oral statement contained only the same information as the written statement, and defense counsel’s two theories of false confession and inaccurate transcription would have been just as available and effective if the second oral statement was admitted at trial. Thus, in my view, there was no “legitimate or reasonable tactical choice” to support counsel’s actions, and counsel’s failure to move to reopen the suppression hearing constituted ineffective assistance (People v Caldavado, 26 NY3d 1034, 1036 [2015]). Furthermore, because counsel’s failure to move to reopen the suppression hearing significantly undermines confidence in the suppression determination, the appropriate remedy — rather than the Appellate Division making a de novo determination of the suppression question based on the limited facts revealed at trial — was remittal to the trial court for reopening of the suppression hearing (Clermont, 22 NY3d at 931; see People v Bilal, 27 NY3d 961, 961-962 [2016] [decided herewith]).
Chief Judge DiFiore and Judges Pigott, Rivera and Garcia concur; Judge Stein dissents in an opinion in which Judge Fahey concurs.Order affirmed.
To the extent defense counsel indicated at trial that he was aware that DePaolis had spoken to defendant “informally,” the record does not establish that defense counsel knew that there was an hour-long custodial questioning that resulted in defendant’s oral confession to the shooting, as evidenced by counsel’s concern that he did not know what DePaolis’s testimony would be if he was permitted to explore defendant’s second oral statement at trial. Furthermore, even assuming that defense counsel was aware of the pertinent facts, this would merely raise the question of whether counsel was ineffective for failing to move to reopen the suppression hearing or take other action immediately after the Appellate Division, relying on an apparently erroneous view of the facts, issued a decision reversing a critical suppression ruling in defendant’s favor.