Opinion
February 10, 1999
Appeal from Judgment of Onondaga County Court, Burke, J. — Robbery, 1st Degree.
PRESENT: DENMAN, P. J., PINE, HAYES, WISNER AND CALLAHAN, JJ.
Judgment unanimously reversed on the law, plea vacated and matter remitted to Onondaga County Court for further proceedings on the superior court information. Memorandum: Defendant pleaded guilty to robbery in the first degree (Penal Law § 160.15) and reckless endangerment in the first degree (Penal Law § 120.25). He was sentenced to concurrent indeterminate terms of incarceration of 5 to 10 years on the robbery count and 2 1/4 to 4 1/2 years on the reckless endangerment count. During the plea colloquy, defendant informed County Court that the pistol or firearm that he displayed in the course of the commission of the robbery was a "toy gun". The court erred in accepting defendant's plea of guilty to robbery in the first degree without conducting further inquiry. The statement of defendant that he displayed only a "toy gun" should have alerted the court to the fact that defendant might have a valid defense to the charge of robbery in the first degree ( see, Penal Law § 160.15; People v. Lopez, 71 N.Y.2d 662, 666; People v. Moye, 171 A.D.2d 1036). The People concede that the sentence imposed upon the conviction of reckless endangerment in the first degree is illegal because the minimum term exceeds the legally permissible minimum ( see, Penal Law § 70.00 [d]; [3] [b]). Thus, we reverse the judgment, vacate the plea and remit the matter to Onondaga County Court for further proceedings on the superior court information.