People v. Williams

55 A.D.2d 686

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 21, 1975 (the date on the clerk’s extract is July 24, 1975), convicting him of robbery in the first degree, on his plea of guilty, and imposing sentence. Judgment modified, as to the conviction, on the law, by reducing it to one of robbery in the second degree; as so modified, judgment affirmed as to the conviction; judgment reversed as to the sentence and case remanded to Criminal Term for resentence. Under the circumstances of this case, the defendant’s plea of guilty to robbery in the first degree should not have been accepted. Neither the defendant nor the other participant in the crime was armed with a deadly weapon and there was no use or threatened immediate use of a dangerous instrument within the contemplation of section 160.15 of the Penal Law. Under the elicited facts, however, a conviction of robbery in the second degree would be appropriate and, since the defendant in his brief requests that we modify the judgment accordingly and remit the case to the Criminal Term for resentencing, we do so. The District Attorney, in his brief, concedes that the judgment should be so modified. Rabin, Acting P. J., Shapiro, Titone and Suozzi, JJ., concur.