Seeking to sustain the dismissal of their indictment defendants contend that the identification testimony supporting it was inadmissible because it derived from a photographic display and not a corporeal viewing. In reinstating the indictment, the majority holds that the long-standing proscription against the use of photographic identification evidence at trials does not extend into the Grand Jury room. I disagree.
Defendants Leonard Brewster, Tromaine Johnson and Felix Alfonso were indicted for multiple counts of robbery in the first degree and criminal use of a firearm in the first degree. During the Grand Jury proceeding, the victims of the crimes responded affirmatively when asked whether they had identified the individuals who committed the crimes. The Grand Jury was not informed, however, that these identifications were based solely on pictures of the defendants that had been shown to the witnesses by the police and that there had never been a corporeal identification of defendants. When the nature of the identifications was ultimately revealed during a Wade hearing, defendants moved to dismiss the indictment pursuant to CPL 210.35 (subd 5), alleging violation of the integrity of the Grand Jury proceedings. Criminal Term (O’Brien, J.), granted the motion and dismissed the indictment, holding that identification evidence derived from photographs is inadmissible in Grand Jury proceedings, that an indictment based on such inadmissible evidence is insufficient *145and that the failure to inform the Grand Jury of the nature of the identifications violated the integrity of the Grand Jury proceedings (People v Brewster, 115 Misc 2d 26).
While recognizing that an indictment must be based upon competent and admissible evidence (CPL 190.65, subd 1) and that postcrime photographic identification evidence is incompetent at a trial (CPL 60.30; People v Lindsay, 42 NY2d 9), the majority concludes that such evidence is admissible before a Grand Jury because the Criminal Procedure Law mandate for competent and admissible evidence may be relaxed where indictment proceedings are involved. The majority supports this proposition by arguing that the indictment process and the convenience of witnesses will be served if the competency rules are eased in the Grand Jury room. However desirable such a proposition may be, I see nothing in the CPL or decisional law that either authorizes a lesser degree of competence for evidence adduced in the Grand Jury room or permits the offering of photographic identification evidence in that room while barring it as incompetent at trial.
The dispute focuses on the meanings of CPL articles 60 and 190 — the former entitled “Rules of Evidence and Related Matters” and the latter “The Grand Jury and Its Proceedings”. CPL 190.65 (subd 1) prescribes the evidentiary and proof standards in Grand Jury proceedings as follows: “[A] grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense * * * and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense”. The enactment of CPL 190.65 neither intended nor created any substantive change in prior existing law (see NY Temporary Comm on Rev of Penal Law and Criminal Code, Proposed New York Criminal Procedure Law [1967], Staff Comment, pp 163-164). The predecessor provision — section 251 of the Code of Criminal Procedure — required an indictment to be based upon competent evidence which unexplained or uncontradicted would warrant a conviction after trial (see People v Oakley, 28 NY2d 309; People v Jackson, 18 NY2d 516; People v Leary, 305 NY 793). For an indictment to be valid it still *146must be based on evidence that would warrant a conviction after trial if uncontroverted (see, e.g., People v Dunleavy, 41 AD2d 717, affd 33 NY2d 573; People v Alaxanian, 89 AD2d 700; People v Leonardo, 89 AD2d 214).
The rule that an indictment must be supported by sufficient evidence does not flow from constitutional mandate and it differs from the Federal standard permitting indictments based entirely on hearsay or other evidence incompetent at a trial (see Costello v United States, 350 US 359; see, also, Matter of Miranda v Isseks, 41 AD2d 176). The policy purpose of this State’s sterner standard is to relieve prospective defendants of the burdens of trials if the probabilities of conviction on the evidence submitted to the Grand Jury are unlikely or impossible (see Note, 1963 Wash U LQ 102). “The purpose and function of the indictment is to determine whether there is sufficient competent evidence to warrant conducting a trial” (People v Rallo, 46 AD2d 518, 527, affd 39 NY2d 217). The New York rule also is intended to prevent prosecutorial abuse in the use of inadmissible evidence (see Arenella, Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction Without Adjudication, 78 Mich L Rev 463, 562).
Here, it is undisputed that the challenged indictment cannot survive without evidence supporting the identification of the defendants. Since that supporting evidence stemmed from the viewing of photographs after the crime, we turn to whether such evidence is competent. Prior to the enactment of the Code of Criminal Procedure in 1927, it was impermissible to bolster a witness’ in-court identification by any evidence of earlier postcrime identifications, whether based on photographs or corporeal viewing (see People v Jung Hing, 212 NY 393). Section 393-b of the Code of Criminal Procedure modified this prohibition by permitting a witness to testify that he “has on a previous occasion identified such person”. Judicial gloss subsequently limited the “previous occasion” identification to one that was corporeal in nature; testimony concerning photographic identifications remained prohibited (see People v Griffin, 29 NY2d 91; People v Baker, 23 NY2d 307; People v Caserta, 19 NY2d 18; People v Cioffi, 1 NY2d 70; People v Hagedorny, 272 App Div 830).
*147This judicial proscription remained unaltered by the enactment of the CPL. Although CPL 60.30 permits a witness to testify that he has on a previous occasion identified the defendant from observing him after the crime, in 1977 the Court of Appeals reaffirmed the bar against photographic identification evidence in People v Lindsay (42 NY2d 9, 12) and referred to the issue as “settled”. Despite a recommendation from the New York State Law Revision Commission that the bar be lifted (see NY Law Rev Comm, A Code of Evidence for the State of NY [1982], § 803, subd [a], par [3]), the Legislature has yet to act on the code and the requirement that identification evidence offered at a trial relate to a corporeal and not a photographic viewing persists.
The rules excluding photographic identifications is grounded on the concept that it is readily possible to distort pictures as affecting identity and that the use of mug shots or rogues’ gallery photos improperly informs the jury that the defendant has a prior criminal record (see People v Caserta, 19 NY2d 18, 21, supra). In one commentator’s view, the possibilities of suggestion are greater in photographic identifications than in lineups since the police can manipulate the choice of photographs, the order in which they are presented and the time in which the witness can study each picture. Furthermore, during a photographic display the accused is not present to observe the procedure and detect instances of possible suggestion (see Note, 34 Ohio St LJ 928; see, also, Comment, 43 NYU L Rev 1019). Sound or not, New York’s rigid stand against use of photographic identification evidence is a minority position. Most jurisdictions deem prior photographic identification evidence sufficiently reliable because the problem of suggestiveness can be ameliorated by subjecting the witness to cross-examination and by excluding suggestive procedures after pretrial hearings (see Sobel, Eyewitness Identification [2d ed], § 4.3, subd [c]; 1 Wharton, Criminal Evidence [13th ed], pp 360-361; Ann., 30 ALR3d 908; Mauet, Prior Identifications in Criminal Cases: Hearsay and Confrontation Issues, 24 Ariz L Rev 29; see, also, NY Law Rev Comm, A Code of Evidence for the State of NY [1982], Comment, p 185).
*148Despite its settled nature, the People argue that the prohibitory rule lacks logic and that the degree of reliability of any given evidence involves its weight rather than its competency. But CPL 60.30 was enacted with legislative awareness that the provision it replaced in the Code of Criminal Procedure had been interpreted as excluding photographic identification evidence. Since CPL 60.30 contained no substantive change from the earlier statutory language, it is apparent that the Legislature intended the prohibition to remain (see Engle v Talarico, 33 NY2d 237, 242). Considering its recent re-endorsement by the Court of Appeals, there is no basis for extinction of the proscriptive rule at this time.
While expressing doubts as to the “vitality” of the rule (p 142), the majority agrees that postcrime photographic identification evidence is inadmissible at a trial but asserts that it is admissible in Grand Jury proceedings because trials and indictment procedures differ in purpose, function and over-all operation. To support this contention, the majority fastens on the language of CPL 190.30 (subd 1), which declares: “[T]he provisions of article sixty, governing rules of evidence and related matters with respect to criminal proceedings in general, are, where appropriate, applicable to grand jury proceedings” (emphasis supplied). The majority takes the Legislature’s use of the words “where appropriate” to mean that while photographic identification evidence is not competent at a trial, it is “appropriate” for use in the Grand Jury room.
Analysis of the merits of this position leads first to the Staff Comments to the CPL which provide insight as to the meaning of “where appropriate”. In the Comment to CPL article 60, the drafters of the statute declare that “[u]pon the theory that the various types of criminal proceedings * * * are all subject to a basic evidentiary pattern, the proposed Criminal Procedure Law prescribes its rules of evidence in the ‘General Provisions,’ thus according them across-the-board application, subject, of course, to qualification by the specialized provisions governing procedure in particular areas” (NY Temporary Comm on Rev of Penal Law and Criminal Code, Proposed New York Criminal Procedure Law [1967], Staff Comment, p 64). In a further *149Comment to CPL 190.30 (subd 1), the section that contains the “where appropriate” language, the drafters remark that “[subdivision 1 merely calls attention to the fact that the rules of evidence governing criminal proceedings in general * * * are applicable to grand jury proceedings except where a different rule is expressly predicated in this section” (Proposed New York Criminal Procedure Law [1967], op cit., p 149; emphasis supplied).
Thus, if there is a difference in the rules relating to the admissibility of evidence at a trial and in the Grand Jury room, it must be “expressly predicated” on a “specialized” provision of the CPL. The rules of evidence contained in CPL article 60 are therefore “appropriate” for Grand Jury proceedings unless a provision of article 190 specifically provides otherwise (see Note, 61 Wash U LQ 191, 211 [New York Rule — blanket proclamation that trial rules of evidence apply in Grand Jury proceedings]). An example of an express departure from CPL article 60 rules of evidence is to be found in CPL 190.50 which restricts defendants from calling witnesses at a Grand Jury proceeding even though CPL 60.15 permits defendants to call and examine witnesses at trials. Notable by its absence in CPL article 190 is any provision which would specifically permit the use of photographic identification evidence. While the majority asserts that it is incongruous to ban photographic identification evidence in the Grand Jury room while permitting corporeal identification testimony that may have suggestive origins, the Legislature and the Court of Appeals seem unmoved by the incongruity and it is apparent that a belief in the basic unreliability of photographic identification evidence has led to its exclusion.
Nor can I agree with the majority’s declaration (p 140), that in People v Oakley (28 NY2d 309, supra), “the Court of Appeals has recognized the reduced risk of permitting the use before the Grand Jury of identification evidence which would be inadmissible at trial”. It is scarcely news that some evidence that is prima facie admissible may later become inadmissible by virtue of extrinsic proof. Oakley (supra), involved corporeal identification testimony that was competent when presented to the Grand Jury but later became inadmissible after a Wade hearing disclosed suggestiveness. The Oakley (supra) standard also applies to *150confessions and physical evidence which may be competent when placed before the Grand Jury but which are suppressed after the indictment (see, e.g., People v Vega, 80 AD2d 867; People v Mauceri, 74 AD2d 833). Photographic identification evidence is incompetent from the outset, however, and it remains so.
I have difficulty in comprehending the majority’s reliance on People v Baker (23 NY2d 307, supra), as “implicitly” approving the use of photographic identification evidence in the Grand Jury room. Baker (supra, p 324), restated the proscriptive rule and permitted testimony concerning an earlier photographic identification solely “to correct a false impression” created by defendant’s efforts to impeach a prosecution witness. The effort to impeach thus opened the door to the otherwise forbidden evidence in the same way as a defendant who assails eyewitness identification testimony as a “ ‘recent fabrication’ ” opens the door to the admission of photographic identification evidence on rebuttal (People v Coffey, 11 NY2d 142, 145-146). Similarly, a defendant who elicits photographic identification evidence loses the right to exclude such evidence when the prosecutor subsequently offers it (People v Brown, 62 AD2d 715). What is involved in all the cited cases is a form of waiver. While the right to exclude incompetent evidence may be waived, in this case there was no waiver; the photographic identification testimony would be incompetent and inadmissible at defendants’ trial and it was incompetent and inadmissible at the indictment proceeding (People v Eckert, 2 NY2d 126).
In a further effort to create a distinction between competency of evidence before Grand Juries and at trials, the majority notes that photographic identification testimony is admissible at suppression hearings and concludes therefore that it is also admissible in indictment proceedings because there can be no distinction between evidence sufficient to establish probable cause for an arrest and evidence necessary to indict and prosecute. It is true, of course, that probable cause for an arrest may be predicated upon a photographic identification made by a witness to a crime (People v Nelson, 79 AD2d 171, cert den sub nom. Usher v New York, 454 US 869), but that does not support the *151notion that such evidence is admissible before a Grand Jury. By equating the proof necessary to establish probable cause with the proof necessary to indict, the majority disregards the highly significant differences between the purposes of Grand Jury proceedings and probable cause hearings. Since part of the Grand Jury function is to screen factual guilt (People v Rallo, 46 AD2d 518, affd 39 NY2d 217, supra; Arenella, Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction Without Adjudication, 78 Mich L Rev 463, 474), an indictment must be based upon legally sufficient evidence to establish that an accused committed a crime (CPL 190.65, subd 1; People v Calbud, Inc., 49 NY2d 389, 394) and hearsay evidence is inadmissible (People v Jackson, 18 NY2d 516). But when an arrest is based upon a citizen’s accusation of guilt, the issue at the suppression hearing is not factual guilt but whether the police were entitled to rely upon the accusation to justify their conduct (People v Elwell, 50 NY2d 231; People v West, 44 NY2d 656). For this reason, an arrest need not be based upon evidence which would be competent at trial (Brinegar v United States, 338 US 160, 172-173; People v Coffey, 12 NY2d 443, 452, cert den 376 US 916; 1 LaFave, Search and Seizure, § 3.2) and even hearsay inadmissible at the trial may be admitted at the suppression hearing (CPL 710.60, subd 4). At a suppression hearing a police officer’s testimony concerning information furnished by a citizen does not run afoul of the hearsay rule because it is not offered for the truth of the charge but only to show that the information was given to the police (People v Inman, 80 AD2d 622; People v Sanders, 79 AD2d 688). In a Grand Jury proceeding, however, the issue is the truth of the charge and the identical hearsay information is inadmissible. The less restrictive evidentiary requirements at suppression hearings are thus irrelevant to the issues before us.
I am aware, of course, that the proscriptive rule creates substantial difficulties in the indictment of individuals who have not been available for lineups or for other corporeal viewing. Amelioration of these difficulties is, however, a matter for legislative redress since recent precedential authority indicates no change in the attitude of the Court *152of Appeals toward photographic identification evidence. Thus, there is no warrant for this court to adopt a rule of necessity that would relax the legislative definition of competent evidence to ease prosecutorial burdens. On the law as it currently exists, the instant indictment was properly dismissed because of the incompetent identification evidence presented to the Grand Jury. In view of my conclusion, I find it pointless to ruminate on whether the failure to disclose the basis of the identification evidence would have impaired the integrity of the Grand Jury if the evidence were competent.
Accordingly, I vote to affirm dismissal of the indictment.
O’Connor and Rubin, JJ., concur with Bracken, J.; Lazer, J. P., dissents and votes to affirm the order insofar as appealed from, with an opinion in which Brown, J., concurs.
Order of the Supreme Court, Queens County, dated July 20, 1982, reversed insofar as appealed from, on the law, defendants’ motion to dismiss the indictment denied, indictment reinstated, and matter remitted to Criminal Term for further proceedings.