(dissenting). This is an appeal from the defendant’s second trial. At the first trial, the only witness to identify defendant testified that she picked him out of a lineup. No in-court identification was made. Defendant was found guilty of robbery in the first degree and burglary in the first degree. It was error, as a matter of law, to permit an independent source hearing for the prosecution’s only identification witness prior to the second trial. It was also an abuse of discretion for the court to preclude the admission of expert testimony by the defendant regarding the factors that affect the reliability of human perception. Accordingly, I dissent.
This case arises as a result of a March 1991 home invasion robbery of William and Lisa Sykes where the perpetrator wore a scarf over his face, a blanket over his clothes, and wielded an axe and a sledgehammer. The assailant’s forehead, eyes, and part of the nose were visible. Only Mrs. Sykes gave a description of the assailant to the police, whom she described as a black man in his twenties, 5 feet, 10 inches tall with a medium build. Mrs. Sykes was unable to help form a composite sketch immediately after the incident, nor could she identify anyone in a photo array a month following the home invasion. She did, however, identify appellant as the perpetrator in a lineup in April 1991. Defendant was subsequently convicted of robbery in the first degree (Penal Law § 160.15 [3] [two counts]) and burglary in the first degree (Penal Law § 140.30 [3]) in 1992.
Defendant’s initial 1992 conviction was reversed (People v Young, 255 AD2d 905 [4th Dept 1998]) as a result of a 1994 Ap*47pellate Division determination that the police lacked probable cause for their April 1991 arrest of appellant. A new trial was ordered. As a result of the 1998 reversal, Mrs. Sykes’ 1991 lineup identification of defendant, defendant’s statement at the time of arrest and police observations of defendant when arrested were also suppressed.
Since the Appellate Division permitted an independent source hearing prior to the second trial, and over defendant’s objection, Supreme Court conducted an independent source hearing in March 1999. The only witness to identify defendant stated that she had told the police that the perpetrator was “[a] man, light black in color, around five-ten, medium build, and later twenties.” She testified further that the man’s face was covered with a scarf with the exception of his eyebrows, eyes and part of his nose. His clothes were covered with a blanket from the Sykes’ car. Mrs. Sykes testified that because she had focused on the intruder’s eyes during the robbery, she was certain it was defendant. Furthermore, she claimed that she engraved a mental picture of defendant’s eyes in her mind and had nightmares for several nights following the invasion. She testified that there was nothing distinctive about the portions of his face that she observed. The man was carrying an axe and a sledgehammer that belonged to the Sykes. The intruder demanded money and he followed her husband, who was in a wheelchair, into another room to get it. The man also took money which Mrs. Sykes obtained from her purse. At one point, the perpetrator ordered her not to look at him. The intruder was in their presence for five to seven minutes. Subsequently, Mrs. Sykes declined to aid the police in making a sketch of the intruder because she had not seen his whole face. Moreover, she failed to pick him out of several photographs shown to her.
Defendant was convicted again in January 2000 of robbery in the first degree (Penal Law § 160.15 [3] [two counts]) and burglary in the first degree (Penal Law § 140.30 [3]).
Supreme Court erred in its determination that the People established, by clear and convincing evidence, that Mrs. Sykes had an independent basis for her second-trial, in-court identification of defendant. The court asked Mrs. Sykes:
“the court: Do you have a recollection of the defendant, independent of having seen him at the lineup?
“the witness: Yes, from that night in our home.
*48“the court: That is independent of the lineup; is that correct?
“the witness: That date on March 29. . . . Yes.”
This was hardly convincing in light of the prior testimony as to the circumstances of the home invasion. As recognized by the two-Justice dissent at the Appellate Division, the fact that the witness could not assist in composing a composite sketch and could not identify a photograph of the defendant are factors that make any in-court identification impermissible as a matter of law in this case.
The trial court also erred in refusing to permit expert testimony on the issue of identification. Dr. John Brigham was a professor of psychology at Florida State University and a former president of the American Psychology-Law Society. In an offer of proof, Professor Brigham was prepared to testify to three factors that affect a person’s ability to make an accurate identification including (1) factors affecting memory such as an ability to observe, cross-racial identification, stress, a weapon, a distinctive face and a disguise; (2) retention of what was observed including elapsed time, information obtained after the event and unconscious transference; and (3) retrieval of a situation including suggestiveness and the absence of correlation between confidence and accuracy.* Dr. Brigham attempted to convey scientific findings that showed the weak correlation between witness confidence and accuracy, the difficulty of remembering a face when the mind cannot encode all the features at once, and the possibility of memory source confusion.
As defendant’s expert indicated, “[t]he most difficult part of a memory to maintain is the source.” If the witness could not help form a composite sketch or identify defendant’s photo in an array days before the illegal lineup, her testimony that de*49fendant was the intruder had no independent basis separate from the illegal lineup. During the court’s examination of Dr. Brigham, the trial judge seemed inappropriately concerned by Dr. Brigham’s studies on stress and reliability which did not include persons who were personally robbed, but people who witnessed staged robberies (cf. People v Aphaylath, 68 NY2d 945 [1986] [holding that an expert need not have knowledge of a defendant’s particular characteristics for testimony to be admitted]). The judge gave no reason, however, for his disallowance of Dr. Brigham’s testimony but stated he was “going to exercise [his] discretion . . . [and] not . . . allow as evidence [Dr. Brigham’s] testimony at the time of trial.”
In fact, during questioning at the hearing, Mrs. Sykes repeatedly stated she was not sure defendant was the intruder until she saw and heard him in the lineup. Nothing occurred subsequent to defendant’s illegal arrest in the intervening eight years that demonstrated Mrs. Sykes’ independent observation of defendant as the perpetrator. Therefore, both the independent source hearing and its finding were errors as a matter of law.
In People v Mooney (76 NY2d 827, 828 [1990]), then Judge Kaye dissented from what she termed the “court’s cursory treatment of defendant’s claim” that expert testimony be admitted. She went on to say that “the emerging trend today is to find expert psychological testimony on eyewitness identification sufficiently reliable to be admitted, and the vast majority of academic commentators have urged its acceptance” (76 NY2d at 829). That statement applies to this case.
In People v Lee (96 NY2d 157 [2001]), this Court unanimously stated that a trial court has discretion to allow expert testimony on the reliability of eyewitness identification where it determines the expert would assist the jury in reaching a verdict. There, this Court upheld the denial of expert testimony. In Lee, however, the witness had picked defendant’s photograph from an array shown to him, had identified defendant at a lineup and identified him again at the trial. In Lee the initial identification by photograph took place approximately six months after the incident. Here, by contrast, the witness could not help form a composite sketch on the night of the incident, did not identify defendant in a photo array a month after the incident, did identify the defendant in a lineup two days after the photo array and did identify him in court eight years after the incident.
*50The majority’s ruling misses the opportunity to hold that here, as a matter of law, where eyewitness identification is attenuated and possibly tainted, and corroborating evidence is weak, courts should allow expert testimony concerning eyewitness identification.
Accordingly, I dissent.
Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo and Read concur with Judge R.S. Smith; Judge G.B. Smith dissents and votes to reverse in a separate opinion.
Order affirmed.
For instance, Dr. Brigham stated:
“[This testimony] may strike you as being obvious, but [it is] not obvious to the average juror when jurors are asked about these factors. In our own study and other studies prospective jurors are asked. A lot of them don’t know about these things, don’t know about weapon focus. They don’t know about the effect of stress. They begin when somebody says it’s burned on my memory, it must be accurate, when, in fact, research shows that it’s unlikely to be. They may or may not know about suggestivity. They don’t know about unconscious transference. They don’t know about the effect of post event determination. There are a lot of factors too.”