Opinion
December 29, 1980
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; People v. Colon, 75 A.D.2d 771). Mollen, P.J., Titone, Margett and Weinstein, JJ., concur.