People v. Royster
| Decision Date | 31 January 1983 |
| Citation | 459 N.Y.S.2d 16,91 A.D.2d 1074 |
| Parties | The PEOPLE, etc., Respondent, v. Eugene ROYSTER, t/n Ronald Royster, Appellant. |
| Court | New York Supreme Court — Appellate Division |
William E. Hellerstein, New York City (Christine E. Yaris, New York City, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Lois Raff and Claire Friedman, Asst. Dist. Attys., Brooklyn, of counsel), for respondent.
Before DAMIANI, J.P., and LAZER, MANGANO and THOMPSON, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 30, 1979, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.
Judgment modified, as a matter of discretion in the interest of justice, by reducing the conviction to one of robbery in the second degree and vacating the sentence. As so modified, judgment affirmed and case remitted to Criminal Term for resentence.
Defendant stated in his allocution that the gun used by him and a co-participant, Faiz Hassan, was unloaded. The court failed to conduct a further inquiry after defendant revealed a potential affirmative defense (see People v. Serrano, 15 N.Y.2d 304, 258 N.Y.S.2d 386, 206 N.E.2d 330; Penal Law, § 160.15, subd. 4). Under these circumstances, the conviction for robbery in the first degree cannot stand (see People v. Hassan, 79 A.D.2d 713, 434 N.Y.S.2d 447).
Modification of defendant's conviction from robbery in the first degree to robbery in the second degree is proper under the circumstances since the People have indicated their consent to such an arrangement, which defendant has requested (see People v. Waddell, 66 A.D.2d 807, 410 N.Y.S.2d 881; People v. Williams, 58 A.D.2d 859, 397 N.Y.S.2d 1).
We find no merit in defendant's contention that he was deprived of the effective assistance of counsel.
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