¶1The defendant, as the moving party, bears the ultimate burden on a motion to suppress of proving that the evidence should not be used against him. The People, nevertheless, have the burden of going forward to show the legality and the reasonableness of the police conduct in the first instance (People v Berrios, 28 NY2d 361, 367; People v Sutton, 47 AD2d 455, 458-459). The burden upon the defendant is by a preponderance of the evidence.
¶2The only evidence in the record as to whether the defendant was the only participant in the lineup with red hair is the testimony of Jill Smith, one of the two identifying witnesses. That testimony was based upon an interview with a defense investigator, where defense counsel stated:
“does that refresh your recollection as to why you picked out the person you did from the lineup?
“A: Yes.
“Q: And was it because he was the one with red hair?
“A: Yes.” and further on,
“Q: Didn’t you just say you picked out the person in the lineup because he had red hair?
“A: Yes.”
¶3Rather than speculate on insufficient evidence upon the motives and understanding of the witness, for the purpose of determining burden of proof we must accept her words in their plain meaning. If she in fact misunderstood the question, the Assistant District Attorney was in a position to clarify her position on cross-examination. The legal question involved is whether this testimony satisfies the defendant’s burden of proof. If it does, as to the lineup issue, the defense need do nothing further. The burden shifts to the District Attorney, who then assumes the *17obligation of making a record to establish that the defendant was not the only red-haired person in the lineup, or that even if he were, the lineup was still not tainted, thus transferring to the prosecution those obligations placed upon defense counsel by the majority.
¶4Since this testimony was the only evidence on the issue and was by one of the two identifying witnesses, it satisfied the defendant’s burden of proof, as a matter of law, thus shifting the burden to the People to rebut it or to show that no taint resulted. The District Attorney made no attempt to do either.
¶5The hearing Judge apparently considered the photograph of the lineup to be dispositive. On several occasions he limited defense counsel and prevented him from going further into this crucial issue. He channeled the hearing into the issues of the prior photographic identification and of whether the police had made improper suggestions to the witnesses in ways other than in the constitution of the lineup. As to the lineup, during argument the court stated as follows: “I can make this observation now, though, as far as the lineup itself is concerned, this repeated insistence by the attorney for the defendant, that his client is the only person who appears to be a light skinned blackman [sic] with redish [sic] hair is not supported by the photograph. The photograph that I have here, which has been marked Exhibit #4 the man in the center has skin-coloring which would appear to be similar to or lighter than that of the defendant, his hair seems to be lighter in color than the defendant’s. His features would appear to be that of a black man. I do not read the law to suggest that all people in a lineup have to look like quintuplets. I think this is a reasonably put together lineup.”
¶6Unfortunately for this analysis, the photograph referred to is “black and white”, and is thus incapable of showing whether any of the participants has red hair.
¶7I would make one further observation concerning the burden of proof in lineup or showup identifications. Does not the burden of the People “to show the legality of the police conduct in the first instance” include the setting forth of the pertinent circumstances surrounding that procedure? Where, for example, the accused matches an un*18common description such as a light complexioned black man with red hair, shouldn’t the People, as part of their obligation to set forth legality in the first instance, come forth with an adequate description of the other “stand-ins” or at least provide a color photograph? It is the prosecution which has control of and access to the details which make up the necessary proof of the circumstances surrounding the lineup. It is not the defense which selects the site of the confrontation or the composition of the lineup, which has the identities and exact descriptions of the stand-ins, which takes the photograph that forms so substantial a part of the evidence of the proceeding and which here inexplicably chose to take a black and white photograph.
¶8The rule concerning the burden of proof in this instance bears directly on the rule excluding improper pretrial identifications, and “the rule excluding improper pretrial identifications bears directly on guilt or innocence. It is designed to reduce the risk that the wrong person will be convicted as a result of suggestive identification procedures employed by the police … A defendant’s right to due process would be only theoretical if it did not encompass the need to establish rules to accomplish that end … Excluding evidence of a suggestive [line-up] does not deprive the prosecutor of reliable evidence of guilt. The [other] witness would still be permitted to identify the defendant in court [since] that identification is based on an independent source.” (People v Adams, 53 NY2d 241, 251.)
¶9This matter should not be remanded for another suppression hearing to permit the People to attempt, for the second time, to sustain its burden of proof. While the People should not be deprived of a full and fair opportunity to present evidence of the dispositive issues involved at a suppression hearing, they are offered but a single opportunity for the presentation and resolution of such factual questions. “Generally, where ‘no contention is made that the People had not had [a] full opportunity to present evidence … [t]here [is] no justification … to afford the People a second chance to succeed where once they had tried and failed’ ” (People v Havelka, 45 NY2d 636, 643; People v Bryant, 37 NY2d 208, 211).
¶10*19The motion to suppress the lineup identification should be granted, the conviction reversed, and the case remanded' for new trial.
¶11Milonas, J., concurs with Sandler, J.; Ross, J., concurs only to the extent of remanding for a hearing before another Justice; Murphy, P. J., dissents in an opinion; Carro, J., dissents in a separate opinion in which Murphy, P. J., concurs.
¶12Appeal from judgment, Supreme Court, New York County, rendered on December 22, 1980, held in abeyance and the matter remanded for a suppression hearing addressed to the question of whether the lineup at which the defendant was identified was fair or impermissibly suggestive.