On the basis of the evidence at the trial, accurately described in the majority’s decision, defendant could not have been convicted of any more serious offense than robbery in the third degree. First, since there is no dispute over the fact that defendant never entered the premises, but stayed outside in the car some 100 yards from the store while Vincent Caruso committed the robbery therein, defendant’s conviction for robbery in the second degree could not have been based on his being “actually present” to aid Caruso. Construing the statutory language according to its “fair import” (Penal Law, § 5.00) and in the light of the purpose of the Penal Law “[t]o give fair warning of the nature of the conduct proscribed” (Penal Law, § 1.05, subd 2), the phrase “actually present” requires the accomplice to be physically present at the robbery. Further supportive of this construction is that when it was intended that accessorial conduct not at the *300actual crime scene would raise the degree of the offense to second degree robbery, the Legislature was quite specific in describing it, i.e., when the perpetrator or “another participant in the crime” causes injury to a nonparticipant or displays what appears to be a weapon during the commission of the crime “or of immediate flight therefrom” (Penal Law, § 160.10, subd 2).
Apparently, the majority does not adopt any broader interpretation of “actually present”. Instead, the majority relies on section 20.00 of the Penal Law to sustain the conviction, reasoning that, since the evidence indicated that defendant aided Caruso in the commission of the robbery and Caruso was “actually present”, the elements of second degree robbery (Penal Law, § 160.10, subd 1) were established. In thus sustaining the conviction on the basis of Caruso’s sole presence at the crime scene, the majority deviates from the theory upon which defendant was prosecuted (and which the majority apparently rejects), that he, as well as Caruso, was “actually present”. The indictment charges defendant with forcibly stealing property “while being aided and abetted by another person, both actually being present5” (emphasis added). The prosecution should be held to the theory of its indictment (cf. People v Hampton, 92 AD2d 490, 491).
Even more importantly than the foregoing inconsistency, the majority’s rationale fails because it glosses over the specific crime the commission of which defendant aided and abetted and, in effect, holds defendant responsible for a crime that was never committed. Beyond the customary elements of robbery, subdivision 1 of section 160.10 of the Penal Law has as a necessary element that the perpetrator be aided by another person actually present (see 2 CJI [NY] PL 160.10 [1], pp 902-906). Thus, it seems self-evident that the commission of the crime of robbery in the second degree under that subdivision requires the actual presence of at least two persons at the scene of the crime, namely, (1) the actual perpetrator of the robbery and (2) a person aiding the perpetrator (see People v Hampton, supra). Since, concededly, defendant’s criminal liability here is purely vicarious under section 20.00 of the Penal Law (“Criminal liability for conduct of another”) and since *301Caruso committed at most only the crime of robbery in the third degree because he alone was present, it follows that the maximum offense for which defendant may be convicted is robbery in the third degree.* I would, therefore, modify the judgment by reducing it to a conviction of the crime of robbery in the third degree.
Mahoney, P. J., and Yesawich, Jr., J., concur with Main, J.; Casey, J., concurs in an opinion; Levine, J., dissents and votes to modify in a separate opinion.
Judgment affirmed.
Of course, if there had been a third participant in the robbery who had been actually present with Caruso, then a robbery in the second degree would have been committed for which defendant could have been held responsible as the driver of the getaway car under section 20.00 of the Penal Law. It is submitted that this situation is what was described in the Commission Staff Notes, relied upon by the majority, in referring to a “group” (not a pair) of bandits who commit a robbery using a car (Commission Staff Notes for proposed art 165 [renum art 160], reprinted in 1982-1983 Gilbert Criminal Law and Procedure, p 2A-74).