Opinion
March 8, 1991
Appeal from the Supreme Court, Erie County, Kasler, J.
Present — Doerr, J.P., Green, Pine, Lawton and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for resentencing, in accordance with the following Memorandum: Defendant entered a plea of guilty to counts four and five of an indictment charging robbery in the first degree. However, during the plea colloquy, defendant informed the court that the pistol he displayed at the robbery which forms the basis of count four was "fake". Defendant did not make a similar claim with respect to count five, but admitted that he displayed a pistol to a salesperson and demanded money. The court accepted defendant's plea to two counts of first degree robbery and sentenced defendant to two concurrent, indeterminate terms of 5 to 15 years.
We agree with defendant's claim that his plea to count four of the indictment should not have been accepted without further inquiry by the court because defendant's statement that he displayed only a "fake" gun should have alerted the court to the fact that defendant might have a valid defense to a charge of robbery in the first degree (Penal Law § 160.15; People v Lopez, 71 N.Y.2d 662, 666). However, because defendant admitted that he committed robbery in the second degree, we modify the judgment by reducing the conviction on count four to robbery in the second degree, remit the matter for resentencing on that conviction only, and otherwise affirm (see, People v Reyes, 92 A.D.2d 776).