Ordered that the case is remitted to the County Court, Suffolk County, for further proceedings in accordance herewith and the appeal is held in abeyance in the interim. The County Court is to file its report with all convenient speed.
The hearing court erred in concluding that the pretrial identification procedure employed, a photographic array, was not suggestive. The defendant was the only subject pictured in front of a height chart, thereby improperly drawing attention to his photograph, highlighting his height and suggesting his prior involvement with law enforcement officials (see, People v Grate, 130 A.D.2d 590). The court also erred in finding that the complainants' in-court identifications had an independent basis, as the complainants did not testify at the suppression hearing (see, People v Riley, 70 N.Y.2d 523, 531). Since the hearing court's erroneous determinations effectively precluded the People from proffering evidence as to independent source, the matter is remitted to provide them with an opportunity to do so (see, People v Crandall, 69 N.Y.2d 459; People v Dodt, 61 N.Y.2d 408, 417-418). Pending a hearing and determination on that issue, the appeal is held in abeyance.
We pass upon no other issue at this time. Brown, J.P., Lawrence, Kooper and Spatt, JJ., concur.