People v. Smith

OPINION OF THE COURT

Kenneth L. Gartner, J.

*442The motion by the instant defendant presents an issue on which there is a conflict between the trial courts: whether a criminal defendant, by simultaneously moving (1) to preclude evidence as a result of late notice under CPL 710.30, and, alternatively, (2) to suppress the same evidence on substantive grounds, in fact thereby waives preclusion, at least where the motion results in an order directing a Wade hearing.

One court, People v Heller (180 Misc 2d 160 [Crim Ct, NY County 1998, Billings, J.]), has held that both the express statutory language,…