
    The People of the State of New York, Respondent, v Johnny Gwynn, Appellant.
   Judgment, Supreme Court, Bronx County, rendered June 21, 1974, convicting defendant, after a jury trial, of the crimes of robbery in the first degree, robbery in the second degree, assault in the second degree and possession of a weapon as a misdemeanor, and sentencing him to concurrent indeterminate terms not exceeding 10 years, 8 years, 5 years and 1 year, respectively, unanimously modified, on the law and as a matter of discretion in the interest of justice, to the extent of reversing the convictions for robbery in the first degree and possession of a weapon, vacating the concurrent sentences imposed thereon and dismissing said counts of the indictment and, as so modified, the judgment is otherwise affirmed. Defendant, with the aid of an accomplice, robbed a retail establishment in The Bronx and a customer thereof. While defendant was occupied in the store proper, the accomplice took the proprietress and the customer into the back room where he appropriated the store owner’s necklace and then began molesting the customer. When the proprietress came to the defense of her young patron, the accomplice choked her first with an electrical cord and then with a clothes line which he found on a table in the room. Fortunately, no serious injuries were inflicted on either victim. Upon the record before us, we find the evidence insufficient to support defendant’s conviction of robbery in the first degree and possession of a weapon. The convictions for these counts rest on the accomplice’s use of dangerous instruments. However, it appears that the incident in the back room was spontaneous and not related to the original robbery plan. Accordingly, we find that the prosecution failed to establish the requisite mental culpability necessary to support defendant’s conviction for such crimes. We have examined the other points raised by appellant and find them without merit. Concur—Kupferman, J. P., Murphy, Lupiano, Silverman and Lane, JJ.  