(dissenting). We respectfully dissent and vote to reverse. As noted by the majority, we previously reversed the judgment convicting defendant of crimes in *895connection with a home invasion robbery and, in granting a new trial, we wrote that the People should be afforded the opportunity to establish an independent basis for the in-court identification of defendant by one of the victims (People v Young, 255 AD2d 905 [1998]). Although we agree with the majority that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]), we nevertheless conclude that defendant is entitled to a new trial because, in our view, the People failed to meet their burden of establishing by clear and convincing evidence that the victim had an independent basis for her in-court identification of defendant.
The record establishes that one of the two victims was unable to identify the intruder. At the pretrial hearing to determine whether the other victim had an independent basis to identify defendant at the retrial, the victim testified that she had the opportunity to look directly at defendant for a period of several minutes in good lighting. She further testified, however, that the intruder was wearing a scarf around his face, and thus she could see only his forehead, eyebrows, eyes and that part of his nose above the scarf. She testified that there were no distinguishing characteristics with respect to the intruder’s forehead, eyebrows or eyes. Immediately after the crime, the victim was unable to assist the police in constructing a composite of the intruder because she had not seen the full face of the intruder. Although the victim further testified that she had nightmares about the intruder during which she would see “those [the intruder’s] eyes,” she was unable to select defendant from a photo array one month after the crime despite looking into the eyes of each man set forth in the photo array. Later in the day on which the photo array was conducted, the victim identified defendant from a lineup, based on both his eyes and his voice. In our prior decision reversing the judgment of conviction, we held that defendant had been illegally arrested and that the lineup identification procedure was not attenuated from the illegal arrest (id. at 906). At the subsequent pretrial hearing at issue herein, the victim testified that she had a recollection of defendant based on her viewing of him in her home on the night of the crime, and she testified that her recollection was independent of her viewing of defendant in the lineup one month after the crime.
Where, as here, the identification of a defendant from a lineup has been ruled inadmissible at trial, “[t]he burden is on the People to establish that the in-court identification was come at by . . . means sufficiently distinguishable to be purged of the *896primary taint” (People v Underwood, 239 AD2d 366, 367 [1997], lv denied 90 NY2d 911 [1997] [internal quotation marks omitted]). In our view, Supreme Court erred in determining that the People established by clear and convincing evidence that the victim had an independent basis for her in-court identification of defendant, untainted by the illegal lineup identification procedure. The inability of the victim to assist the police in constructing a composite of the intruder and her inability to select defendant from a photo array prior to the lineup identification procedure strongly suggest that her alleged independent “recollection” of defendant was irrevocably tainted by her having viewed defendant in the lineup and having heard him speak. We therefore must conclude that any in-court identification testimony by the victim “would be derived from exploitation of the illegal arrest” (id.; see also People v Reyes, 151 AD2d 435, 437 [1989]). Thus, we would reverse the judgment and grant defendant a new trial at which the victim would be precluded from making an in-court identification of defendant. Present—Hurlbutt, J.P., Scudder, Kehoe, Gorski and Hayes, JJ.