People v. Merrill

212 A.D.2d 987, 624 N.Y.S.2d 702, 1995 N.Y. App. Div. LEXIS 1851

Opinions

—Judgment reversed on the law, motion to preclude identification evidence granted and new trial granted. Memorandum: The notice served by the People pursuant to CPL 710.30 was inadequate because it failed to "inform defendant of the time, place and manner in which the identification was made” (People v Lopez, 84 NY2d 425, 428). It is of no moment that defendant suffered no prejudice, nor can the inadequacy of the notice be "cured by discovery” (People v Lopez, supra, at 428). Consequently, County Court erred in denying defendant’s motion to preclude the identification evidence. Defendant did not waive his right to preclusion by moving, in the event that the preclusion motion was denied, for suppression of the identification testimony or by participating in a Wade hearing (see, CPL 710.30 [3]). A defendant who initially moves to preclude and loses does not waive his right to preclusion by later participating in a Wade hearing (see, People v Bernier, 73 NY2d 1006, 1008; People v McRae, 195 AD2d 180, 184, Iv denied 83 NY2d 969). We have reviewed defendant’s remaining argument and conclude that it is without merit.

All concur except Denman, P. J., and Balio, J., who dissent and vote to affirm in the following Memorandum.