
    The People of the State of New York, Respondent, v Francisco Rivera, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered March 21, 1977, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, indictment dismissed, and case remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. Defendant was driving his car one February evening after spending some time with a friend at a local bar. Suddenly the friend, a passenger in the car, spotted a pedestrian who he (mistakenly) thought had previously burglarized his store. The passenger told defendant to stop the car. He then pulled out a gun and stopped the pedestrian. The pedestrian, on the passenger’s order, handed over his briefcase, wallet and sweater. All of the items, except the sweater, were returned after the "search” failed to turn up any of the goods stolen from the store. The sweater was not returned because it was forgotten in the excitement. When the police came upon the defendant soon after the incident, the sweater was still in the rear seat, where it had originally been tossed. There was no evidence presented at the trial that defendant knew his passenger had a gun or was about to accost the pedestrian, who was mistakenly thought to be a burglar. In fact, the passenger, a friend of defendant, testified that defendant had no knowledge of the gun. The only act performed by defendant was to drive with his friend that evening and stop at the friend’s request. It was defendant who first said that the items should be returned to the pedestrian. Under the circumstances, the evidence was legally insufficient to prove defendant’s guilt of robbery in the first degree. It should also be noted that the record demonstrates that defendant was not accorded a fair and impartial trial. Hopkins, J. P., Damiani, Rabin and Shapiro, JJ., concur.  