People v. Roberts , 118 A.D.2d 668 ( 1986 )

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ramirez, J.), rendered October 22, 1982, convicting him of robbery in the second degree (two counts), and grand larceny in the third degree, upon a jury verdict, and imposing sentence.

Judgment modified, on the law, by reversing the conviction of robbery in the second degree under the third count of the renumbered indictment as submitted to the jury, vacating the sentence imposed thereon, and dismissing that count of the indictment. As so modified, judgment affirmed.

The crimes charged in the indictment occurred in two cars of a southbound "A” train at about 10:00 p.m. on May 25, 1981. The incidents in the last car of the train involved the robbery of one victim and the assault of another. These victims, who were the only witnesses to testify concerning the crimes committed against them, both identified the defendant as being present in the subway car in question. However, they also testified that the defendant was not involved in the robbery or the assault. One of the victims indicated that the defendant might have entered the subway car after the incidents.

In reviewing the testimony linking the defendant to the robbery charged in the third count of the renumbered indictment as submitted to the jury, we conclude that the People have failed to prove the defendant guilty of that crime beyond a reasonable doubt. Accordingly, the conviction on that charge must be reversed. We have considered the defendant’s other contentions and find them to be without merit. Bracken, J. P., Niehoff, Rubin and Lawrence, JJ., concur.