People v. Reyes

92 A.D.2d 776, 459 N.Y.S.2d 614, 1983 N.Y. App. Div. LEXIS 17142

Opinion

—- Judgment of the Supreme Court, Bronx County (Goldfluss, J.), rendered December 11,1980, convicting the defendant upon his guilty plea of robbery in the first and second degrees, and possession of a weapon in the fourth degree, and sentencing him, as a predicate felon, to concurrent indeterminate terms of imprisonment of from 6 to 12 years, 4Yz to 9 years, and 1 year, respectively, to run concurrently with a sentence then being served, unanimously modified, on the law and the facts, to vacate the conviction for possession of a weapon and to dismiss that count of the indictment, to reduce the conviction of robbery in the first degree to robbery in the second degree, and to remand for sentence on the reduced counts, and otherwise affirmed. Appellant’s appeals from orders entered in Supreme Court, Bronx County (Goldfluss, J.), on June 1, 1982, and August 13, 1982, which, respectively, denied appellant’s motion pursuant to CPL 440.10 to vacate the judgment, then upon reargument, adhered to the prior denial, dismissed as moot. At the time of the plea, defendant told the court that he had only used a toy pistol. Inasmuch as on the other robbery for which the instant sentence was to be concurrent, a toy pistol was used, there is substantiation for the defendant’s contention. Under the circumstances, the guilty plea to robbery in the first degree should be reduced to robbery in the second degree and the count for possession of a weapon in the fourth degree must be vacated. Commendably, the People concede that if there is to be a modification, this procedure is satisfactory. (Cf. People v Pellegrino, 91 AD2d 942.) Concur —• Murphy, P. J., Kupferman, Sandler, Carro and Kassal, JJ.