People v. Kirkland

222 A.D.2d 1024, 636 N.Y.S.2d 687, 1995 N.Y. App. Div. LEXIS 14069

Opinion

—Judgment reversed on the law, motion to preclude identification evidence granted and new trial granted. Memorandum: The CPL 710.30 notice served upon defendant failed to apprise him of the time, place and manner in which the identification of defendant was made (see, People v Lopez, 84 NY2d 425, 428). That defect could not be cured by discovery provided the day after arraignment (see, People v Lopez, supra, at 428-429; People v Scott, 222 AD2d 1004 [decided herewith]). Furthermore, defendant did not waive his right to preclusion by subsequently moving for suppression of the identification testimony or by participating in the Wade hearing (see, People v Merrill, 212 AD2d 987, lv granted 87 NY2d 1027; People v Scott, supra).

Green, J. P., Pine and Boehm, JJ., concur; Wesley and Balio, JJ., concur on constraint of People v Merrill (212 AD2d 987, lv granted 87 NY2d 1027). (Appeal from Judgment of Monroe County Court, Marks, J. — Grand Larceny, 4th Degree.) Present — Green, J. P., Pine, Wesley, Balio and Boehm, JJ.