Opinion
December 22, 1995
Appeal from the Monroe County Court, Marks, J.
Present — Green, J.P., Pine, Wesley, Balio and Boehm, JJ.
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 N.Y.2d 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 A.D.2d 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 A.D.2d 987, lv granted 87 N.Y.2d 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 A.D.2d 987, lv granted 87 N.Y.2d 1027).