People v. Feichtl ( 1987 )

Appeals by the defendant from five judgments of the County Court, Suffolk County (Seidell, J.), all rendered April 29, 1985, convicting him of robbery in the first degree (one count as to each indictment), upon his pleas of guilty, and imposing sentences.

Ordered that the judgments are affirmed.

In view of his assertion during the plea allocution that he used a toy gun to commit the crimes, the defendant contends that Criminal Term erred in accepting his pleas of guilty to robbery in the first degree without conducting a sufficient inquiry to ascertain if the defendant was cognizant of the availability of an affirmative defense under Penal Law § 160.15 (4), which, if established at a trial, might have resulted in his conviction of a lesser included offense. This issue has not been preserved for appellate review by reason of the defendant’s failure to move to withdraw his guilty pleas prior to sentence (see, People v Warren, 47 NY2d 740; People v Nasti, 90 AD2d 507; People v Ebron, 87 AD2d 653). In any event, the defendant’s contention is belied by the plea allocution, wherein the defendant stated that he understood the affirmative defense and would not contest the operability of the gun.

We have reviewed the defendant’s other contention regarding the excessiveness of the sentences imposed and find it to be without merit. Mollen, P. J., Bracken, Rubin, Kooper and Spatt, JJ., concur.