People v. Hassan
| Decision Date | 29 December 1980 |
| Citation | 434 N.Y.S.2d 447,79 A.D.2d 713 |
| Parties | The PEOPLE, etc., Respondent, v. Faiz HASSAN, a/k/a James Samuel, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Michael E. Lipson, New York City, for appellant.
Eugene Gold, Dist. Atty., Brooklyn (Cynthia Kean, Brooklyn, of counsel), for respondent.
Before MOLLEN, P. J., and TITONE, MARGETT and WEINSTEIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from two judgments of the Supreme Court, Kings County, both rendered June 15, 1979, upon resentence, convicting him of two counts of robbery in the first degree, upon pleas of guilty, and imposing sentences.
Judgments reversed, on the law and as a matter of discretion in the interest of justice, guilty pleas vacated, and case remanded to Criminal Term for further proceedings consistent herewith.
The Assistant District Attorney assigned to this case for the appeal points out that during defendant's allocution prior to the acceptance of his pleas of guilty to robbery in the first degree under two indictments, defendant stated that during both robberies the gun used by him and the codefendant was unloaded. In view of such utterance the court should have informed the defendant that he had raised an affirmative defense to robbery in the first degree (Penal Law, § 160.15, subd. 4), and then conducted a further inquiry (see People v. Serrano, 15 N.Y.2d 304, 258 N.Y.S.2d 386, 206 N.E.2d 330; People v. Colon, 75 A.D.2d 771, 428 N.Y.S.2d 6).
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... ... Serrano, 15 N.Y.2d 304, 258 N.Y.S.2d 386, 206 N.E.2d 330; People v. Pellegrino, 91 A.D.2d 942, 458 N.Y.S.2d 556 affirmed 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938; People v. Reyers, 92 A.D.2d 776, 459 N.Y.S.2d 614; People v ... Hassan, 79 A.D.2d 713, 434 N.Y.S.2d 447; People v. Royster, N.Y.L.J. 2/2/83, p. 14, col. 2) ... However, in each of the above decided cases it became obvious at the time of the plea or at sentencing that the weapon used was inoperable or the potential for such an affirmative defense ... ...
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