(dissenting). I concur with the majority that the photo identification procedure was impermissibly suggestive (see, People v Gonzalez, 145 AD2d 923). In my view, however, we can only remit for a rehearing when the hearing court commits an error of law which " 'directly causes the People to fail to offer potentially critical evidence’ ” (People v Giles, 73 NY2d 666, 671); that did not occur in this case.
The People called the two victims to testify at the pretrial Wade hearing, but failed to ask them any questions to establish an independent basis for their identification of defendant. The court’s erroneous ruling, made following the close of the testimony, did not directly cause the People to fail to offer this critical evidence. Moreover, there is nothing in the record to indicate that the court precluded the People from offering such evidence. Under these circumstances, the People are not entitled to a second chance to offer such evidence (see, People v Dodt, 61 NY2d 408, 417-418; People v Havelka, 45 NY2d 636, 643).
Defendant was entitled in advance of trial to the determination by a Judge on the question of any independent source of identification (People v Dodt, supra, at 418); the majority ruling deprives defendant of this fundamental right. Although the People had a full opportunity to establish such a source, they failed to do so. Thus, since we have determined that the *1012joint viewing was erroneous, we must reverse. (Appeal from judgment of Erie County Court, Dillon, J. — robbery, first degree.) Present — Callahan, J. P., Green, Balio, Lawton and Davis, JJ.