Determination withheld as to appeal from judgment of the Supreme Court, New York County rendered on June 6, 1969, convicting defendant-appellant of robbery, after trial to a jury, and the matter remitted in the exercise of discretion and the interest of justice to Supreme Court, New York County, for the reopening and continuance of the pretrial hearing on the subject of identification of defendant-appellant by the witness Welch, to make new findings of fact, conclusions of law and a determination. Welch, victim of the robbery charged to defendant, was present outside the building in which defendant was encountered by the police, and in a position to observe him as he left in police custody. At the hearing, defense counsel asked that he be produced by the District Attorney. He was not produced, and the hearing court gave no direction that he be produced. His version of the circumstances at the times he saw the defendant should have been most relevant in arriving at a finding concerning elements of possible suggestion, and he should have been called even if it had been necessary for the court to call him. That Welch testified thereafter at the trial and was cross-examined and that the jury apparently accepted his identification is of no moment; what concerns us is that his evidence was not available as part of the process leading to the findings and conclusions of the hearing court. Accordingly, we direct that the hearing be reopened to that end. Of course, if Welch's testimony should lead to the necessity of calling or recalling other witnesses, that will be well within the hearing court's discretion. We have considered the other points raised by appellant and find them to be without merit.

Concur — Eager, J.P., Capozzoli, McGivern and Markewich, JJ.