People v. Bowman

133 A.D.2d 701, 519 N.Y.S.2d 951, 1987 N.Y. App. Div. LEXIS 51736

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 13, 1987
• Status: Published

Opinion

Appeal by the defendant from two judgments of the Supreme Court, Richmond County (Felig, J.), each rendered August 24, 1983, convicting him of two counts of robbery in the first degree (one count as to each indictment), upon his pleas of guilty, and imposing sentences.

Ordered that the judgment under indictment No. 101/83 is modified, as a matter of discretion in the interest of justice, by reducing the conviction of robbery in the first degree to one of robbery in the second degree; as so modified, that judgment is affirmed; and it is further,

Ordered that the judgment under indictment No. 102/83 is affirmed.

The defendant contends, and the People concede, that the defendant’s plea of guilty to robbery in the first degree under indictment No. 101/83 was inappropriate in that the gun displayed by the defendant during the robbery was a “beebee gun”. We agree. However, the defendant was guilty of robbery in the second degree under indictment No. 101/83. The conviction is modified accordingly on the People’s consent (see, Penal Law § 10.00 [12]; § 265.00 [3]; People v Jones, 54 AD2d 740).

Further, the defendant’s sentence under indictment No. 102/83 was not excessive. Mellen, P. J., Bracken, Rubin, Kooper and Spatt, JJ., concur.