I concur in Justice Carro’s dissent. However, I would also suppress Jill Smith’s in-court identification.
The defendant was charged with murdering Lloyd Tillet as Tillet sat in a car on March 3, 1980. Prosecution witnesses Jill Smith and Angela Dortch were present in the car at that time. Immediately after the shooting, Smith and Dortch informed the police that the murderer was a light-skinned black man with red hair and a red beard. These two witnesses repeated this description on several occasions before the lineup held on March 7, 1980. In that lineup, there were five participants. While all the participants appear to be light-skinned black men, Jill Smith testified that defendant was the only participant with red hair. In its brief, the prosecution does not contend that any other participant in the lineup had red hair. This lineup was impermissibly suggestive because it improperly focused the witnesses’ attention upon defendant. (People v Johnson, 79 AD2d 617; People v Lebron, 46 AD2d 776.) Therefore, the identification made by Smith and Dortch at the lineup must be suppressed under the more restrictive standards in this State. (People v Adams, 53 NY2d 241.)
It should also be stressed that a defense attorney has a passive role at a lineup (cf. Lee v County Ct. of Erie County, 27 NY2d 432, 444). Therefore, even though the defense attorney did not make an objection at the lineup, he properly challenged the fairness of the lineup at the Wade hearing.
Since the lineup was unnecessarily suggestive, it was incumbent upon the prosecution to establish by clear and convincing evidence that the witnesses had an independent basis for their identification of defendant at trial (People v Rahming, 26 NY2d 411, 416). Under the present *15state of the law, reliability is the linchpin in determining the admissibility of identification testimony (Manson v Brathwaite, 432 US 98, 114).
In view of the fact that Dortch identified defendant’s “black and white” photograph in an array on March 4, 1980, there is ample proof in the record to conclude that she had an adequate opportunity to observe the murderer. There is no evidence at the hearing to support the conclusion that Dortch was improperly influenced, by either the police or civilians, in choosing defendant’s photograph at the pretrial stage or in identifying defendant at trial. Since the clear and convincing evidence shows that Dortch had sufficient time to view the murderer, her testimony is reliable and may be admitted at trial for purposes of identifying defendant at the scene of the murder.
However, the same may not be said for the reliability of Smith’s identification testimony. Depending on whose testimony is credited at the suppression hearing, Smith either failed to choose a photograph or chose an incorrect photograph. This failure on Smith’s part is one indication that she did not have an adequate opportunity to see the murderer. (Cf. People v Bruno, 77 AD2d 922.)
Smith’s testimony at the hearing was further discredited by the statement which she admittedly gave to the investigator hired by defendant. In that statement, Smith told the investigator, inter alia, that she never saw the murderer. She had allegedly been informed that the murderer was a black man with red hair. Smith told the investigator that, based upon the information she had received from others, she chose defendant at the lineup.
The prosecutor did not establish by clear and convincing evidence that Smith had an independent basis for identifying defendant at trial. To the contrary, the weight of the evidence at the hearing impels the conclusion that Smith did not see the murderer and that her testimony is unreliable. Thus, she should not be permitted to identify defendant at trial.
Accordingly, the judgment of the Supreme Court, New York County (McGinley, J. at trial; Stecher, J. at Wade hearing), rendered December 22, 1980, convicting defendant after a jury trial of murder in the second degree and *16sentencing him to a prison term of 25 years to life, should be reversed, on the law and the facts, the motion to suppress should be granted to the extent of suppressing (i) the lineup identification made by Smith and Dortch, and (ii) any in-court identification made by Smith, and a new trial should be ordered.