73 N.Y.2d 1006 | NY | 1989
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed.
Defendant was convicted after a jury verdict of two counts of robbery and of possession of a weapon arising out of the holdup of the same Brooklyn gas station on three separate occasions.
Defense counsel learned during trial jury selection that a person with respect to whom no CPL 710.30 (1) pretrial notice had been given would be called as the prosecution’s main
The Appellate Division correctly reversed the conviction and suppressed the in-court identification as well because the trial court had no basis for denying the initial defense motion to preclude for failure of timely statutory notice (CPL 710.30; People v O’Doherty, 70 NY2d 479, supra). The People’s claim that defendant nevertheless waived the preclusion protection pursuant to the exception of CPL 710.30 (3) by making a suppression motion or participating in a suppression hearing is unavailing. The waiver exception cannot become operative in a case such as this when the defendant clearly moved initially to preclude and lost. In any event, he made no suppression motion qualifying under CPL 710.30 (3) (see, People v Amparo, 73 NY2d 728, 729; People v McMullin, 70 NY2d 855).
Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur; Judge Kaye taking no part.
Order affirmed in a memorandum.