People v. McDaniel , 114 A.D.2d 336 ( 1985 )

Order, Supreme Court, New York County (Howard Bell, J.), entered December 13, 1983, setting aside the jury’s verdict convicting defendant of robbery in the first degree, reversed, on the law and the facts, the verdict reinstated and the matter remanded for sentencing.

The trial court found a failure of proof of the defendant’s guilt beyond a reasonable doubt. In so holding, it found that the robbery victim did not identify the defendant and that the only evidence against him was his own statement that he was with two other men when they met the victim on the street but, when one of his companions pulled out a gun, he, the defendant, ran away.

There was evidence that the victim was accosted by three men assuming a triangular pattern, one in front of him and one on each side. The victim could not positively identify the defendant as one of the three but the jury could consider his testimony that the defendant was similar in age, height, build, and skin color to one of the three perpetrators. Furthermore, the defendant admitted he was there. The jury was entitled to accept that part of the defendant’s statement without having to accept that he ran away, especially when there was evidence to the contrary. The victim testified that when the gunman told him to freeze, he screamed, dropped his shoulder-bag, and ran. Another witness, alerted by the scream, saw the defendant and two other men run past him into a park and rummage through a bag later identified as the victim’s. We find this evidence justified the jury’s conclusion that the defendant was one of the three men participating in the robbery. Concur—Kupferman, J. P., Sullivan, Carro, Lynch and Milonas, JJ.