Opinion
November 5, 1984
Appeal from the Supreme Court, Queens County (Sherman, J.).
Judgment affirmed.
Defendant's contention that Criminal Term erred in accepting his plea of guilty to robbery in the first degree without informing him of the availability of an affirmative defense, under subdivision 4 of section 160.15 Penal of the Penal Law, which, if established at trial, could result in conviction of a lesser degree of robbery, was not preserved for appellate review by reason of his failure to move to withdraw his plea prior to sentence (see People v Pellegrino, 60 N.Y.2d 636; People v Warren, 47 N.Y.2d 740; People v Pascale, 48 N.Y.2d 997; People v Ebron, 87 A.D.2d 653). In any event, we find that defendant's statement at the time he entered his plea of guilty was substantively sufficient. While defendant stated that the shotgun he carried was unloaded, he thought that the shotguns carried by the other participants were loaded. Gibbons, J.P., O'Connor, Weinstein and Lawrence, JJ., concur.