THE PEOPLE &C., RESPONDENT, v. PATRICK JOHNSON, APPELLANT.

    80 N.Y.2d 798, 599 N.E.2d 682, 587 N.Y.S.2d 278 (1992).
    June 9, 1992

   2 No. 124
   Decided June 9, 1992
     _________________________________________________________________

   This memorandum is uncorrected and subject to revision before
   publication in the New York Reports.

   William A. Loeb, for Appellant.
   William M. Harrington, for Respondent.

   MEMORANDUM:

   The order of the Appellate Division should be reversed and a new trial
   ordered.

   Defendant and a co-defendant were convicted after a jury trial of two
   counts of murder in the second degree and additional, related criminal
   counts.

   We agree with the Appellate Division that the eyewitness's testimony
   regarding the lineup identification of defendant should have been
   suppressed and, therefore, was erroneously received in evidence at
   trial. However, we conclude, as did the dissenting Justice below, that
   the error in this case cannot be deemed harmless (People v Johnson,
   ___ AD2d ___; compare, People v Harris, __ NY2d ___ (Slip opn, decided
   today); see, People v Crimmins, 36 NY2d 230).

   The eyewitness, the sole witness who inculpated defendant in the
   commission of these crimes, gave testimony which was internally
   contradictory and inconsistent in nature. Significantly, the trial
   prosecutor pointedly relied on the erroneously admitted lineup
   evidence in the People's opening statement and summation, thus
   exacerbating the prejudicial impact. Under these circumstances, the
   educement before and finding by the suppression court of an
   independent source for the witness's in-court identification does not,
   standing alone, satisfy the harmless error standard. We cannot
   conclude on this record that there was "no reasonable possibility that
   the error might have contributed to defendant's conviction and that it
   was thus harmless beyond a reasonable doubt." (id., at 237 (citations
   omitted)).