People v. Valente

129 A.D.2d 824, 514 N.Y.S.2d 811, 1987 N.Y. App. Div. LEXIS 45525

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Delin, J.), rendered May 19, 1986, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed to a term of five years’ probation. As so modified, the judgment is affirmed, and the matter is remitted to the County Court, Nassau County, to set the terms and conditions of probation, and for further proceedings pursuant to CPL 460.50 (5).

Having failed to move to withdraw his plea of guilty, the defendant has failed to preserve for appellate review his claim that the court improperly accepted his plea (see, CPL 470.05 [2]; People v Pellegrino, 60 NY2d 636). The claim is, in any event, without merit, since the defense provided by Penal Law § 155.15, i.e., that "the property was appropriated under a claim of right made in good faith”, is not available in a robbery prosecution but is limited, by the specific terms of the statute, to a larceny prosecution (see, People v Hodges, 113 AD2d 514, lv denied 67 NY2d 884; People v Coates, 64 AD2d 1).

The sentence should be reduced to the extent indicated. Brown, J. P., Niehoff, Sullivan and Harwood, JJ., concur.