The opinion
Lawrence, J.,
dissents and votes to affirm, with the following memorandum: I find no reason for disturbing the hearing court’s determination, which was based upon its acceptance of the testimony of the defendants’ witnesses, to the effect that there was a clear "indication that the police had engaged in improper conduct [prior to the time that the actual lineups were set up and viewed by the complainant, which was] calculated to influence the [complainant’s] identification of the defendant^]” (cf., People v Baity, 139 AD2d 521, 522 ). As noted by the majority, Sergeant Steele did not recall whether on the night of the lineups, the complainant’s mother had accompanied the complainant to the precinct or whether the mother of the complainant and the mother of the defendants had met. Further, neither the complainant nor his mother were called to testify at the pretrial hearing to clarify what had occurred prior to the lineups. I therefore find that the People failed to meet their burden of establishing the reasonableness of the police conduct immediately prior to the actual lineups (see, People v Jackson, 108 AD2d 757, 758 ). Accordingly, the hearing court properly suppressed the complainant’s proposed testimony as to the lineup identifications of the defendants.
In addition, I find that the People failed to meet their burden of proving by clear and convincing evidence that the complainant’s in-court identifications of the defendants would be based upon a source independent of the tainted lineup procedures (see, People v Jackson, supra, at 757-758). The testimony of Sergeant Steele concerning certain statements made by the complainant, who did not testify at the pretrial hearing, was insufficient to establish that the in-court identifications of the defendants by the complainant would have an independent basis apart from the lineup viewings (see, People v Riley, 70 NY2d 523, 531-532). The People’s reliance on Phipps v Follette (428 F2d 912, cert denied 400 US 908 ) is misplaced since in that case the identifying witness testified at the pretrial suppression hearing.