People v. Mulvena

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered January 7, 1977, convicting him of assault in the third degree, after a nonjury trial, and imposing sentence. Judgment reversed, on the law, 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. The defendant contends, and the People candidly concede, that the defendant’s guilt was not established beyond a reasonable doubt. Since the trial court found that defendant was not acting in concert with his codefendants, and there was neither direct nor circumstantial evidence that he caused physical injury to the complainant, there was insufficient proof to find him guilty of assault in the third degree (see Penal Law, § 120.00). Shapiro, J. P., Cohalan, Hargett and O’Connor, JJ., concur.