PEOPLE v. RIVERA

The result here is mandated by our prior determinations in People v De Jesus ( 123 A.D.2d 563) and People v Morales ( 130 A.D.2d 366), companion cases involving codefendants in this indictment who were jointly tried with defendant. That defendant's comments sparked the incident adds nothing to his degree of involvement insofar as the robbery is concerned. In that regard, the proof against defendant, De Jesus and Morales stands on an equal footing. As such, it is fatally flawed by an absence of proof of an intent to steal. Without such intent, as we found in both De Jesus and Morales, neither the robbery nor assault in the second degree conviction, which is based on an assault committed in the course of the robbery (Penal Law § 120.05), can stand. As previously indicated, however, sufficient proof to sustain a conviction of the lesser included offense of assault in the third degree is present and we modify accordingly.

Concur — Sullivan, J.P., Carro, Kassal, Rosenberger and Wallach, JJ.