In People v. Burts, 78 NY2d 20 (1991) the Court of Appeals held that having multiple eyewitnesses jointly engaged in making photographic identifications constitutes an impermissible suggestive procedure.
Rejecting the notion that the effects of unduly suggestive identification procedures upon eyewitness identifications can be deemed overcome by an evaluation of the trial testimony of those eyewitnesses, our Court of Appeals stated:
"The flaw in this instance cannot be retroactively cured because, simply put, the jury heard impermissible in-court identification evidence and the nature of this kind of defect cannot be sanitized after the irretrievable event has occurred. In such circumstances, nothing short of reversal and a new Wade hearing and a new trial will suffice." Id. at 23.