
    The People of the State of New York, Respondent, v James Rice, Appellant.
   — Appeal by the defendant from a judgment of the Supreme Court, Queens County (O’Dwyer, J.), rendered October 19, 1980, convicting him of attempted murder in the second degree, robbery in the first degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Brennan, J.), of that branch of the defendant’s omnibus motion which sought suppression of statements.

Judgment modified, on the law, by reversing the conviction of «attempted murder in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment. As so modified, judgment affirmed.

The defendant raises the same issues which were raised by his codefendants in their appeals to this court (People v Dean, 112 AD2d 947). As we held in Dean, the People failed to prove that the defendant had the necessary intent to kill the McDonald’s employee who was shot during this robbery and therefore, the attempted murder conviction must be reversed.

The hearing court did not abuse its discretion in crediting the People’s witnesses and finding that the statements were made voluntarily. Accordingly, its findings should be upheld (People v Armstead, 98 AD2d 726).

The defendant’s remaining contentions have been considered and found to be without merit. Gibbons, J. P., Bracken, Niehoff and Kunzeman, JJ., concur.  