
    The People of the State of New York, Plaintiff, v. Roger Bell, Defendant.
    District Court of Suffolk County, First District,
    December 24, 1974.
    
      James J. Malloy for defendant. Henry G. Wen&ell, 111, District Attorney, for plaintiff.
   Lawrence Newmark, J.

This is a motion by defendant for an order granting him a Wade hearing to determine whether improper identification testimony may be offered against him and whether such evidence should be suppressed or excluded.

Defendant is charged with criminal possession of stolen property in violation of section 165.40 of the Penal Law. The District Attorney served upon the defendant a notice of intention to offer at trial testimony identifying the defendant as the person who committed the offense charged, to be given by a witness who has previously identified him as such.

Defendant is seeking a hearing to ascertain the circumstances of the identification. The language of United States v. Wade, (388 U. S. 218, 231-232) relied on by him, is broad enough to validate such a purpose. “ The accused’s inability effectively to reconstruct at trial any unfairness [during identification] may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.”

The People urge denial of defendant’s motion for a hearing on the grounds that it fails to comply with OPL 710.20 (subd. 5) and OPL 710.60 (subd. 1) in not alleging that an improper previous identification might be offered against him at trial and in failing to include specific allegations of fact to support such a motion. However, the thrust of defendant’s argument is that the defense is unable, at this time to move to suppress identification evidence, because the only indication of a previous identification is the notice received from the People. To deny defendant the opportunity to discover the attendant circumstances of the identification to he relied on by the prosecution would render meaningless his undoubted right to contest the admissibility of an improper prior identification.

Defendant’s motion is granted.  