People v. Waddell ( 1978 )

by defendant from a judgment of the Supreme Court, Kings County, rendered December 14, 1977, upon resentence, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence. Judgment reversed, on the law, plea vacated, and case remitted to Criminal Term for further proceedings consistent herewith. Defendant’s statement at the time he entered his plea of guilty, that the crime had been committed with a "toy gun”, suggested the existence of an affirmative defense (see Penal Law, § 160.15, subd 4), and cast doubt on his guilt of robbery in the first degree. This event should have triggered further inquiry by the court to determine whether the defendant was aware of the significance of his statement (see People v Serrano, 15 NY2d 304). No such inquiry was forthcoming here. Since defendant’s admissions did establish the crime of robbery in the second degree, the judgment here could be modified with the District Attorney’s consent to a conviction of the lesser crime (cf. People v Williams, 58 AD2d 859). In the absence of such consent, however, justice requires that the conviction be vacated and the case remanded to permit the defendant to replead to the indictment. Gulotta, J. P., Cohalan, Margett and O’Connor, JJ., concur.