People v. Pellegrino

91 A.D.2d 942, 458 N.Y.S.2d 556, 1983 N.Y. App. Div. LEXIS 16231

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1983
• Status: Published

Opinions

— Judgment of the Supreme Court, Bronx County (Loguen, J.), rendered December 5,1977 convicting defendant of robbery in the first degree and sentencing him as a predicate felon affirmed. Defendant pleaded guilty to robbery in the first degree to cover this and another indictment. At the plea proceedings, he admitted that he and his codefendant had robbed a gas station and, in the course of the commission of the crime he or his codefendant displayed what appeared to be a pistol. At the sentence proceedings he was arraigned on an information which charged him with being a predicate felon. After admitting that he was the same person named in the information and admitting the truth of its contents, both defense counsel and the prosecutor addressed the court. The court then proceeded to impose sentence. Prior to doing so, however, he again restated the facts of the crime. In so doing he noted that defendant and his accomplice drove up to the gas station in a van and that “they produced a gun”. After locking the complainant in the restroom, they completed the robbery and fled in a van. The police were thereafter notified and they intercepted the van and apprehended both defendants. At that time they recovered “an inoperable lead gun” and approximately two thirds of the cash stolen. On appeal it was urged upon us that since the gun seized at the time of defendant’s apprehension was “an inoperable lead gun” defendant could not have been guilty of robbery in the first degree and, hence, the conviction must be reversed. In so doing defendant makes a number of assumptions which are not justified by the record! Defendant asks us to accept as truth that because he possessed an inoperable lead gun at the time of his apprehension, that was the weapon used in the robbery. There is nothing in the record to so indicate. Indeed, there is nothing in the record to indicate the lapse of time between the robbery and the apprehension. We do know that the complainant was locked in the restroom. Some time must have elapsed before the police were notified. Whether there was a third confederate in the van who was dropped off with the gun after the robbery and before apprehension, or whether the persons apprehended stopped off somewhere and dropped off an operable weapon before they were apprehended is a matter of speculation. However, we do know that although $436 in cash was taken in the robbery only $290 in cash was recovered. Bearing in mind that defendant was represented by counsel and there is no contention that his representation was inadequate, we are constrained to accept defendant’s admission at the time of plea as the fact. If, indeed, the weapon used in the commission of the robbery was an inoperable one, defendant’s remedy is to move, pursuant to CPL 440.10 and 440.20 to set aside the judgment of conviction and the sentence. At that time defendant will have the opportunity to establish, by way of record, the nature of the weapon used in the robbery. We have examined the other issue raised by defendant and find it to be without merit. Concur — Murphy, P. J., Ross, Bloom and Lynch, JJ.