Judgment convicting defendants-appellants of the crime of robbery, first degree, after a jury trial, affirmed. Mangum, a cab driver, testified that on the night of March 6, 1964, at 174th Street and Bronx River Avenue, Bronx County, he was hailed by the three defendants. Defendant Tillman seated himself behind Mangum, defendant Anderson was seated at the extreme right side with defendant Brown between them. Mangum testified that Tillman leaned over and seized his money changer; that another defendant grabbed him around the throat and that he saw Tillman holding a gun. Mangum exculpated Anderson, his testimony being to the effect that Anderson did not have the gun and did not do or say anything during the altercation. Anderson was acquitted. Brown was acquitted of the Sullivan Act violation submitted to the jury solely against him. No exception was taken to the court’s charge; no request was made by appellants for a charge as to robbery in the second degree. Our examination of the record establishes beyond reasonable doubt that the testimony, defense and jury arguments were grounded solely on the basis that one of the appellants seized the money changer and the other appellant seized the cab driver. Although this court may, in the interest of justice, in a proper ease order a new trial even in the absence of an exception (People v. Giamario, 15 N Y 2d 939; People v. Caverio, 1 N Y 2d 657; People v. Curtis, 8 A D 2d 183), we are of the opinion this is not such a ease because it was prosecuted and defended solely on the basis of robbery, first degree. The proof establishes beyond a reasonable doubt the charge of robbery in the first degree in that there was an unlawful taking committed by a person aided by an accomplice actually present. (Penal Law, § 2124, subd. 2.)
Concur — Breitel, J. P., McNally and Steuer, JJ.;