Opinion
July 6, 1992
Appeal from the Supreme Court, Richmond County (Felig, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered to be preceded by an independent source hearing. No questions of fact have been raised or considered.
At the conclusion of the pretrial Wade hearing, at which the complainant did not testify, the court ruled that the complainant's lineup identification of the defendant was tainted, and suppressed the lineup identification testimony. The defendant argues, inter alia, that the trial court committed reversible error in subsequently allowing the complainant to give in-court identification testimony without conducting an independent source hearing. We agree.
Once a pretrial identification has been suppressed as tainted, a pretrial determination must be made as to whether the witness has an independent source for an in-court identification (see, People v. Burts, 78 N.Y.2d 20, 24-25; People v. Dodt, 61 N.Y.2d 408, 417). Since an independent source was not established at the Wade hearing, and no pretrial determination was made as to independent source, the conviction must be reversed, and a new trial ordered, to be preceded by an independent source hearing (see, People v. Dodt, supra, at 417; People v. Minaya, 183 A.D.2d 920). Harwood, J.P., O'Brien, Ritter and Copertino, JJ., concur.