(dissenting). Convicted of robbery for his complicity in the holdup of a bar, on proof which was entirely circumstantial, defendant Robert Turner challenges, inter alia, the sufficiency of the evidence.
In the rainy, early morning hours of October 9, 1977, Nathaniel Singleton, a patron, Magdelena Harris, the owner, and her sister, Mildred Lucas, the barmaid, were the sole occupants of "Location 40”, a bar at 1624 Amsterdam Avenue, in the Borough of Manhattan. Shortly before 2:00 a.m., Harris, taking out some garbage, observed two persons at a telephone booth across the street. One of the individuals was dressed in a green parka and the other in an orange rainsuit. At about 2:15 a.m., defendant, a customer whom Harris recognized, entered the bar, wearing a green parka and carrying an open can of beer or soda inside a paper bag. Told that he could not bring a drink in with him, defendant remarked that he wanted to use the telephone. He then proceeded to the rear of the bar to the public telephone but, apparently, was unable to complete his call because, according to the three witnesses, the coin which he deposited was returned.
The outer front door to the premises locked automatically, and Lucas, from behind the bar, had to press the electric buzzer which activated the lock, to let defendant out. As he was leaving, his brother, the codefendant George Turner, *61entered wearing an orange rainsuit. The two spoke to each other briefly. As defendant departed, the door remained slightly ajar.
Once inside, George went to the rear, pulled a gun, and announced "This is a stickup.” He demanded that Lucas give him whatever money was in the cash register, and ordered a bottle of champagne. He threatened to shoot Singleton, who also handed over his money.
George then ordered Harris to open the door to the office, threatening that if she refused he would kill Lucas.1 Harris testified that after entering the office George bumped into the edge of a tabletop which, unsecured and precariously balanced, toppled off its base, falling onto a box of fluorescent light bulbs on the floor. According to Harris, the box was knocked aside, thereby revealing approximately $1,800 in bills which had been hidden under the box. Overjoyed with his good fortune George took the money,2 left the office without further ado, and, after Lucas pressed the buzzer to let him out, exited the bar, admonishing his victims, "Don’t look at me.” Immediately after George’s departure, Harris observed two persons walking away from the bar. She conceded, however, that she did not recognize either person and that they could have been two strangers who just happened to be walking by the bar. She did testify, however, that during the robbery she had occasion to glance out the front window a half dozen times and saw defendant standing outside with his back to the bar looking up and down the street.
Charging that defendant could be convicted only if the jury found that he was acting in concert with George Turner, the trial court submitted three counts of robbery in the first degree, one count as to each victim, and three counts of the lesser included offense of robbery in the third degree. The jury acquitted both defendants of the office robbery of Harris but convicted them of robbery in the first degree as to Lucas and Singleton.
In our view, the evidence is insufficient to enable a jury to conclude beyond a reasonable doubt that defendant was an accomplice of George Turner, because it does not yield a *62factual basis from which to infer that defendant knew George intended to commit a robbery when George entered the bar or even that defendant was aware that a robbery was in progress as he waited outside. While an hypothesis of guilt may doubtless be drawn from an analysis of defendant’s conduct, we believe that his actions are equivocal, whether viewed separately or in their totality, and are readily consistent with an inference of noncriminal behavior. Consequently, we find that the People have failed to meet their burden of proof as a matter of law.
Section 20 of the Penal Law defines the standard of accessorial conduct by which an individual is criminally liable for the conduct of another: "When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpabilty required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.”
In support of their hypothesis that defendant aided and abetted George Turner in the robbery at the Location 40 bar, the People offer the following:
1. both defendants, as identified by their clothing, were seen standing together at a telephone booth across the street from the bar less than a half hour before the robbery;
2. defendant, drink already in hand, entered the bar;
3. when defendant called on the telephone his coin was returned;
4. as defendant left the bar, George came in through the open door, and they exchanged words;
5. the outer front door, which should have closed, remained open;
6. defendant remained just outside the bar, in the rain, looking from left to right; and
7. immediately after the robbery, two persons walked past the front window of the bar.
From these facts the People argue that the jury must have concluded that defendant’s "telephone call” was a pretext to "case” the bar; that by standing in front of the premises, looking back and forth, he was acting as a lookout; that the only way the outer door could have remained unlocked was by defendant closing it in a way designed to avoid tripping the *63latch; and, finally, that it was he and his brother who were seen walking away from the bar after the robbery.
The Court of Appeals has restated the long-standing rule of law applicable to criminal cases based entirely upon circumstantial evidence: "[F]or a conviction based exclusively upon circumstantial evidence to stand, the hypothesis of guilt should flow naturally from the facts proved, and be consistent with them, and * * * the facts proved must exclude to a moral certainty every reasonable hypothesis of innocence.” (People v Lagana, 36 NY2d 71, 73-74.)
In People v Cleague (22 NY2d 363, 368), it was held that "the inferences to be drawn from the coincidence of time, place, and behavior are sufficient only to create suspicion.” Like Cleague, who was observed standing in a used car lot while a second man was burglarizing a nearby office, defendant’s actions here were not "indisputably that of an accomplice”. (People v Cleague, supra, at p 365.)
On the night of the robbery defendant was seen with his brother twice. On the first occasion, a half hour before the robbery, Magdelena Harris observed the two talking across the street. On the second occasion they brushed past each other in the doorway to the bar. To conclude that defendant was plotting a holdup with his brother when talking with him on the street, or that his sortie into the bar was to assure that his brother would have easy ingress and egress, or that the aborted telephone call, which is concededly equivocal, was the signal, it seems to us, entails a leap of "logical gaps in the proof offered” and the drawing of "unwarranted conclusions based on probabilities of low degree”. (See People v Benzinger, 36 NY2d 29, 32; see, also, People v Cleague, supra, p 367.) The conclusion that defendant closed the outer door in a way to avoid tripping the latch is sheer speculation. In any event, the significance of the door being left ajar is diminished, if not eliminated, by George’s need to order Lucas to press the buzzer so that he could be let out.
Furthermore, although two men were seen walking past the front window after George Turner had completed the robbery and left the bar, neither was observed wearing a green parka or an orange rainsuit. In reaching the inferences necessary to establish guilt, care must be taken to assure that "the facts from which the controlling inferences were drawn must themselves have been proved, not presumed.” (People v May, 290 NY 369, 371.) To infer that the two men seen walking away *64were the Turner brothers making good their escape would violate this rule, since it involves the inference that defendant knew that George had committed a robbery from the unproven fact that the two men were indeed the Turners.
Possibly the most damaging piece of evidence was Harris’ testimony that defendant was seen standing outside the bar during the course of the robbery. Since defendant could have been innocently waiting for his brother to exit the bar, only on proof indicating that he knew that a robbery was in progress or that he became a participant after his brother came out of the bar, would we be inclined to find that a web of complicity had been drawn around him with no thread missing. Without such proof, however, we cannot conclude that the circumstantial evidence excludes every hypothesis but guilt.
It is true, of course, that in assessing sufficiency in a circumstantial evidence case, the facts must be examined, not in isolation from one another, but in their entirety. (People v Benzinger, 36 NY2d 29, 34, supra.) If, however, upon analysis, the conclusion reached does not exclude to a moral certainty every reasonable hypothesis of innocence, the guilty verdict based on that conclusion must fall. We believe that to be the case here.
Accordingly, the judgment, Supreme Court, New York County (Levittan, J.), rendered May 10, 1978, convicting defendant of two counts of robbery in the first degree, and sentencing him to concurrent indeterminate terms of 4 Vi to 9 years, should be reversed, on the law, and the indictment dismissed.
Ross, J., concurs with Fein, J.; Kupferman, J., concurs in result only; Murphy, P. J., and Sullivan, J., dissent in an opinion by Sullivan, J.
Judgment, Supreme Court, New York County, rendered on May 10, 1978, reversed, on the law, in the exercise of discretion and in the interest of justice, and the case remanded for a new trial.
. Singleton testified that after robbing him the man took the bottle of champagne and left the bar without ever going into the office with Harris.
. Harris did not report the theft of the $1,800 to the police officers who initially investigated the crime. Nor did she immediately tell Lucas, her sister, who did not know of the theft when she first spoke to the police.