Murphy, P. J., and Asch, J., dissent in a memorandum by Asch, J., as follows: While I believe that the evidence before the Family Court was sufficient to sustain a verdict that respondent Juan J. committed an act which, if committed by an adult, would constitute the crime of assault in the third degree, I do not feel there was sufficient evidence for the finding of the Family Court that respondent additionally committed acts which if committed by an adult would constitute the crimes of robbery in the second degree and assault in the second degree.
Respondent Juan J. was a member of a group consisting of four males and two females who engaged in an altercation (in the early morning hours at the Christopher Street PATH *499subway station) with one Mr. Mustafa Citak and his friend Ms. Rusha Haljuici.
Although there was sufficient evidence showing that the respondent took part in an assault upon both Citak and Haljuici, the evidence before the Family Court did not prove anything other than a spontaneous decision by one of the members of the group to steal Citak’s wallet while the beating was taking place. It is significant that both the victim Citak and a witness, Paul Hendricks, described the incident as a melee and as confused. There was no testimony or evidence that respondent shared the intent of the person who took Citak’s wallet. In fact, there is no evidence that respondent was even aware that Citak was robbed of his wallet. "The intent to commit a robbery is an indispensible ingredient of robbery” (People v Lopez, 58 AD2d 516). Where, as here, the respondent is charged with acting in concert with others to rob, intent must be independently established as to each participant; it cannot be imputed to all based only upon proof offered against one. (See, People v La Belle, 18 NY2d 405, 412.) Here, under the facts presented, there was no proof of intent by respondent to commit a robbery. "All that was shown was that while [the victims were] assaulted by appellant and his companions, [they were] robbed by an unidentified person. Clearly, appellant’s robbery conviction may not rest on so deficient an evidentiary foundation” (People v De Jesus, 123 AD2d 563, 564).
Further, the count of second degree assault, as a violation of Penal Law § 120.05 (2) was also unproved against respondent. There was no evidence presented to the Family Court which established that respondent used any deadly weapon or dangerous instrument during the beating. The witness Paul Hendricks did not see respondent use any such instrument and, moreover, the chain attached to the wallet and with which the victim was struck, was found in the pocket of another assailant in the group. There was no showing that respondent shared any intent to use the chain prior to the assault or even knew that the co-assailant carried a chain. As there was no independent proof of intent to use a dangerous instrument, the proof was insufficient to establish assault in the second degree under that count (see, People v La Belle, 18 NY2d 405, 412, supra). Finally, the count of assault in the second degree (Penal Law § 120.05 [6]) which is premised upon the commission or attempted commission of a felony during which physical injury to a person other than one of the participants occurs, must also be dismissed as to respondent, since the only *500crime remaining is assault in the third degree (Penal Law § 120.00) which is a Class A misdemeanor, not a felony.
Accordingly, I would modify the order appealed from by reversing and vacating the findings as to robbery in the second degree and assault in the second degree, vacate the placement and remand for reconsideration by the Family Court.