People v. Samuels , 484 N.Y.S.2d 137 ( 1985 )

— Appeal by defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered February 23, 1983, convicting him of robbery in the first degree, robbery in the second degree (two counts) and assault in the second degree, upon a jury verdict, and imposing sentence.

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 AD2d 269; People v Daniels, 88 AD2d 392; People v Grier, 87 AD2d 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 NY2d 198; People v McDowell, 28 NY2d 373; People v Hargrove, 95 AD2d 864; People v Cicciari, 90 AD2d 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.