The opinion
Breitel, J. (dissenting in part).
A hearing should be directed as to defendant Gonzalez to determine whether the in-court identification was independent of suggestive photographic showups (see People v. Burwell, 26 N Y 2d 331). Unlike codefendant Castellano, who, unmasked throughout the robbery, was identified by several witnesses at a showup held the day of the crime, Gonzalez was masked during part of the robbery, and was identified by only one witness, whose first confrontation-identification was at the trial some 16 months later. Under these circumstances, the photographic showups conducted for this witness before the Grand Jury and on the day of her trial identification were necessarily suggestive, and the independence of her in-court identification of Gonzalez should be determined. Although this witness also identified Castellano at the trial, the other evidence of Castellano’s identity is sufficient to render the identification procedure harmless as to him.
*62 Accordingly, I dissent in part and would remit the action only as to defendant Gonzalez for the purpose of conducting an identification hearing and would otherwise affirm.
As to defendant Gonzalez: Judges Bergan, Jasen and Gibson concur with Judge Scileppi; Chief Judge Fuld dissents and votes to modify in an opinion; Judge Breitel dissents and votes to modify in a separate opinion; Judge Burke taking no part.
Judgment affirmed.
As to defendant Castellano: Judges Bergan, Breitel, Jasen and Gibson concur with Judge Scileppi; Chief Judge Fuld dissents and votes to modify in a separate opinion; Judge Burke taking no part.
Judgment affirmed.