Callahan, J. P. (dissenting). I cannot agree with the majority’s conclusion that defense counsel waived any right defendant may have had to a pretrial hearing on the issue of the execution of the search warrant. The People concede that defendant properly made a suppression motion. The minutes of the pretrial conference establish that defense counsel had "no quarrel with the issuance of the warrant itself’ and agreed that no hearing was necessary on that issue. Defense counsel, however, did not either expressly or impliedly waive defendant’s right to a hearing on the separate issue of proper execution of the warrant. Defendant, in his motion papers, alleged, inter alia, that the search warrant was not a "no-knock” warrant; that the police executed it without first giving notice of their authority or purpose; that the Troopers entered the house without first identifying themselves and seized items without showing the warrant, despite a request to do so. The remedy for a violation of the notice provision of the governing statute is suppression of the evidence (see, CPL 690.50; People v Mecca, 41 AD2d 897). Defendant’s allegations, if true, would support the granting of a suppression motion and consequently defendant is entitled to a hearing. The propriety of the denial of a suppression motion must be judged on the evidence before the suppression court and evidence subsequently admitted at trial cannot be used to support the suppression court’s denial (People v Millan, 69 NY2d 514, 518; People v Wilkins, 65 NY2d 172, 180; People v Dodt, 61 NY2d 408, 417). We should, therefore, hold this appeal and remit this matter to County Court for a suppression hearing (see, People v Martinez, 111 AD2d 30). (Appeal from judgment of Onondaga County Court, Burke, J.—forgery, second degree.) Present—Callahan, J. P., Doerr, Boomer and Pine, JJ.