PEOPLE v. SAMUELS

Judgment reversed, on the law and the facts, indictment dismissed, and case remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

Upon our review of the record, we conclude that the judgment of conviction was against the weight of the evidence (CPL 470.15, subd 5; People v. Taylor, 98 A.D.2d 269; People v. Daniels, 88 A.D.2d 392; People v. Grier, 87 A.D.2d 893).

Further, the evidence was legally insufficient to support a finding that the complaining witness suffered either substantial pain or an impairment of physical condition (Penal Law, § 10.00, subd 9). Accordingly, the conviction for assault in the second degree (Penal Law, § 120.05, subd 6) and for one of the counts of robbery in the second degree (Penal Law, § 160.10, subd 2, par [a]) must be reversed on the law as well as on the facts (CPL 470.15, subd 4, par [b]; Matter of Philip A., 49 N.Y.2d 198; People v. McDowell, 28 N.Y.2d 373; People v. Hargrove, 95 A.D.2d 864; People v. Cicciari, 90 A.D.2d 853).

In light of this disposition, we do not address the defendant's remaining contention. Gibbons, J.P., O'Connor, Niehoff and Lawrence, JJ., concur.