Opinion
November 22, 1993
Appeal from the County Court, Rockland County (Nelson, J.).
Ordered that the judgment is modified, on the law, and on consent of the People, by reducing the defendant's conviction of robbery in the first degree to robbery in the second degree, and vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Rockland County, for resentencing.
During his plea allocution, the defendant stated that the weapon used in the robbery to which he was pleading guilty was not loaded. Thus, as the defendant contends, and as the People concede, the court should not have accepted the defendant's plea without making further inquiry into whether there was an affirmative defense available to the defendant (see, People v Clinton, 179 A.D.2d 670; People v Moye, 171 A.D.2d 1036; Penal Law § 160.15; § 10.00 [12]). However, the defendant requests that his conviction be reduced to robbery in the second degree and the People agree to this result. Since the defendant admitted that he committed robbery in the second degree, we reduce the conviction and remit the matter for resentencing (see, People v Moye, 171 A.D.2d 1036, supra). Mangano, P.J., Rosenblatt, Lawrence, Copertino and Joy, JJ., concur.