Opinion
December 22, 1995
Appeal from the Monroe County Court, Marks, J.
Present — Pine, J.P., Fallon, Callahan, Doerr and Davis, JJ.
Judgment unanimously 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. It failed both to set forth the identity of the witnesses and to "inform defendant of the time, place and manner in which the identification was made" (People v Lopez, 84 N.Y.2d 425, 428; see, CPL 710.30; People v Kahley, 214 A.D.2d 960; People v Merrill, 212 A.D.2d 987, lv granted 87 N.Y.2d 1027). It is irrelevant that defendant was not prejudiced by the People's failure to satisfy the requirements of CPL 710.30 (see, People v Lopez, supra, at 428; People v Merrill, supra). "Nor can the inadequacy of the notice be cured by discovery" (People v Lopez, supra, at 428; see, People v Kahley, supra). Furthermore, "[d]efendant 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" (People v Merrill, supra, at 987; see also, People v Bernier, 73 N.Y.2d 1006, 1008).