May 18, 1993
Appeal from the Supreme Court, New York County, John A.K. Bradley, J., Angela Mazzarelli, J.
Defendant was charged with robbery arising out of an assault by a group of six youths on two other youths in a subway train. One of the victims, Hector Reyes, was provoked into a physical altercation with several of the assaulting youths, while defendant watched passively from a seat, holding a large radio in his lap. When the group thereafter began attacking Reyes' companion, Hector Torres, the defendant left his seat and apparently joined the fracas, as Torres testified: "I just remember him [defendant] hitting me on two occasions, that's it."
As the train pulled into the next station, one or more of the assaulting youths other than the defendant grabbed Torres' book bag away from him, but Torres snatched it back moments later. Two police officers who had been traveling in an adjoining subway car, and had observed much of the incident, immediately arrested defendant and the five others who were involved in the attack. The five others pleaded guilty to charges of robbery or attempted robbery in the second degree, and each was sentenced to five years probation. Defendant refused to plead guilty, went to trial and testified, steadfastly protesting his innocence.
In our view the evidence was legally insufficient to establish the defendant's guilt of robbery in the second degree, as there was no evidence that when defendant struck Torres, he did so with intent to aid the others in committing a robbery, and it is well established that the use of force alone is not evidence of an intention to steal (People v Rivera, 184 A.D.2d 288, 291, appeal dismissed 81 N.Y.2d 758). Moreover, our review of the trial testimony as a whole impels us to conclude that this is one of those rare instances where the verdict was also against the weight of the evidence. Accordingly the judgment of conviction should be reversed, and the indictment against the defendant dismissed.
Concur — Carro, J.P., Rosenberger, Ellerin and Asch, JJ.