¶1dissents only with respect to the order entered January 16, 1985, which set aside the jury verdict finding defendant guilty of murder in the second degree in a memorandum as follows: I agree with the majority that the evidence is sufficient to convict the defendant of the attempted murder and robbery of Edward Greene and of possession of a weapon. The evidence does not show an intent by defendant to kill Larry Scott or to aid the unknown gunman in killing Larry Scott. I would, therefore, affirm the order of the trial court which set aside that part of the jury’s verdict of guilty.
¶2The most complete testimony of what happened came from Edward Greene who was a friend of the deceased and who was shot by the defendant. His testimony was as follows. Between 2:00 and 2:30 a.m. on June 19, 1982, Greene came to the area of 164th Street and Washington Avenue. His friend, Larry Scott, was arguing with three other people. Only one of the three was doing most of the talking with Scott. At first, the defendant was leaning against a church, but he moved during the course of the argument. The defendant "said something that made me [Greene] tell him to mind his business or you *487know me and him might end up fighting.” Scott asked the unknown gunman if he wanted to fight and started to remove his jacket. The unknown gunman started to remove a pistol from the area of his waist and Greene, who was standing about a foot away, tried to stop him. Greene was then shot in the lower back by the defendant. The deceased, Larry Scott, began to run and the unknown gunman ran after him. Greene, who did not then realize he was wounded, ran about 50 feet before he fell to the sidewalk. Greene then saw the unknown gunman shoot Larry Scott.
¶3Contrary to the statement in the majority opinion, the defendant did not run after Scott and the unknown gunman. In fact, Greene testified that for a short while, he did not see the defendant. Greene stated: "The other guy who shot me, after he shot me, he disappeared. I didn’t even see him. You know, I turned around. He was there. Then, I turned around, he was gone.” The defendant reappeared, put a gun to Greene’s ear, robbed him of money and shot him.
¶4Two other witnesses who saw at least a part of the events, Samuel Valle and Elvis Rodriguez, did not testify to . any different actions on the part of the defendant.
¶5Penal Law § 20.00 defines criminal liability for the conduct of another in the following way: "When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.”
¶6During the argument, there was nothing to suggest that guns were present until Larry Scott began to take off his jacket and the unknown gunman began to pull a pistol from his waist. Defendant’s action was to shoot Greene when he tried to stop the unknown gunman from pulling a gun. It is an impermissible leap to conclude that the defendant intended to kill Scott or to aid the unknown gunman in killing him.
¶7This case is distinguishable from People v Whatley (69 NY2d 784), which is cited by the majority in support of its decision. The shooter in Whatleywas not identified. Here the shooter of Scott was identified. In Whatley, the defendant was convicted of murder in the second degree. The defendant had sought out the deceased at a social gathering and had induced him to leave in order to resolve a dispute involving deceased’s cousin. The defendant and the deceased left the gathering with two women and drove the two women home. Then the defendant, *488the deceased, and a third man who was in the car drove to the area of 166th Street and Washington Avenue in The Bronx where an argument ensued and the deceased was killed with a shotgun. Defendant asserted that he was present but did not shoot the deceased or know that the third man would shoot him. The jury verdict of guilty was upheld on the basis of circumstantial evidence, including the facts that the defendant induced the deceased to leave the social gathering and knew that the shotgun was present in his car since it was too large to hide.
¶8I conclude that the evidence here is insufficient to convict the defendant of killing Scott.