Appellate Division of the Supreme Court of New York, Second DepartmentJul 18, 1977
58 A.D.2d 859 (N.Y. App. Div. 1977)

July 18, 1977

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 7, 1974, convicting him of attempted robbery in the first degree, on his plea of guilty, and imposing sentence. Judgment modified, on the law, by reducing the conviction to one of attempted robbery in the second degree and by reversing the sentence imposed thereon. As so modified, judgment affirmed and case remitted to Criminal Term for resentence. Under the circumstances of this case, the defendant-appellant's plea of guilty to attempted robbery in the first degree should not have been accepted. The defendant was not armed with a deadly weapon and there was no use or threatened immediate use of a dangerous instrument within the contemplation of section 160.15 Penal of the Penal Law. Under the elicited facts, however, a conviction of attempted robbery in the second degree would be appropriate and, since the defendant in his brief requests that we modify the judgment accordingly and remit the case to the Criminal Term for resentencing, we do so. The District Attorney, in his brief, concedes that the judgment should be so modified. The District Attorney is to be commended for his assistance to the court by his concession. Latham, J.P., Shapiro, Hawkins and Suozzi, JJ., concur.