Ritter, J. (concurring in part and dissenting in part). I agree that the circumstances underlying each of the photographic viewings in this case were highly suggestive. There may be a legitimate police purpose in having an undercover officer make a prompt photographic identification of a suspect in an ongoing investigation, prior to making any arrest, and preserving the photograph in the police file for future use. Here, however, the photographic viewing after the January 22, 1988 transaction occurred six days later, and, as was the case after each subsequent transaction, the identification suffered from all the forbidden attributes of suggestiveness (see, People v Gordon, 76 NY2d 595, 599).
I disagree with my colleagues in the majority, however, on the question of whether this Court can, or should, decide the issue of independent source on the basis of the existing record of what I consider to be an incomplete Wade hearing. Because of its dynamic and subjective nature, identification evidence is subject to distinctive substantive and procedural protections, and "empirical concerns relating to reliability” (People v Burts, 78 NY2d 20, 23). In any case involving an impermissibly suggestive pretrial identification procedure, I believe defense counsel must be given a full opportunity to explore a witness’s purported independent basis to make an in-court identification, unless the risk of misidentification is so minimal that we can say, as a matter of law, that there is no need for a Wade hearing at all (see, People v Rodriguez, 79 NY2d *278445; People v Wharton, 74 NY2d 921). In my view, the hearing court’s erroneous conclusion that the viewings were "confirmatory”, and the resulting preclusion of the defendant’s opportunity to cross-examine the witnesses on the key issue of independent source, requires reversal of the entire judgment and a new trial, to be preceded by a new Wade hearing with respect to each of the transactions for which the defendant was convicted (see, People v Williamson, 79 NY2d 799; People v Burts, supra; People v Minaya, 183 AD2d 920).
Sullivan, J. P., and Harwood, J., concur with Copertino, J.; Ritter, J., concurs in part and dissents in part in a separate opinion.
Ordered that the judgment is modified, on the law, by vacating the defendant’s convictions under counts three, four, five, and six of the indictment, and the sentences imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Suffolk County, for a new trial on those counts, to be preceded by an independent source hearing. The facts have been considered and are determined to have been established.