People v. Costanza , 642 N.Y.S.2d 132 ( 1996 )

Case held, decision reserved, motion to relieve counsel of assignment granted and new counsel to be assigned. Memorandum: We disagree with the contention of defendant’s assigned appellate attorney that no nonfrivolous issues appear upon the record. Defendant entered a plea of guilty to attempted robbery in the first degree, admitting that he entered a liquor store and brandished an unloaded revolver in an attempt to obtain money from the clerk. The prosecutor admitted that the revolver, which was recovered, was unloaded. "[I]t is an affirmative defense [to a charge of first degree robbery] that [the gun] was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged” (Penal Law § 160.15 [4]). Thus, defendant’s admissions do not support a conviction of attempted robbery in the first degree. Because defendant did not admit that he had obtained any property from the clerk, his admissions support, at most, a conviction of attempted robbery in the second degree. Whether the court erred in accepting defendant’s plea to attempted robbery in the first degree without conducting further inquiry to determine the voluntariness of the plea (see, People v Sobczak, 105 AD2d 1053) presents a nonfrivolous issue for appeal. Consequently, we relieve counsel of her assignment and assign new counsel to brief that issue, as well as any other issues that counsel’s review of the record may disclose (see, People v Lake, 172 AD2d 1051, 1052). (Appeal from Judgment of Genesee County Court, Morton, J.—Attempted Robbery, 1st Degree.) Present—Green, J. P., Lawton, Wesley, Doerr and Boehm, JJ.