People v. Burnett

105 A.D.2d 710, 481 N.Y.S.2d 150, 1984 N.Y. App. Div. LEXIS 20819

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County (Sherman, J.), rendered April 22, 1983, convicting him of robbery in the first degree, upon a plea of guilty, and imposing sentence.

Judgment affirmed.

Defendant’s contention that Criminal Term erred in accepting his plea of guilty to robbery in the first degree without informing him of the availability of an affirmative defense, under subdivision 4 of section 160.15 of the Penal Law, which, if established at trial, could result in conviction of a lesser degree of robbery, was not preserved for appellate review by reason of his failure to move to withdraw his plea prior to sentence (see People v Pellegrino, 60 NY2d 636; People v Warren, 47 NY2d 740; People v Pascale, 48 NY2d 997; People v Ebron, 87 AD2d 653). In any event, we find that defendant’s statement at the time he entered his plea of guilty was substantively sufficient. While defendant stated that the shotgun he carried was unloaded, he thought that the shotguns carried by the other participants were loaded. Gibbons, J. P., O’Connor, Weinstein and Lawrence, JJ., concur.