Opinion
December 10, 1984
Appeal from the Supreme Court, Richmond County (Barlow, J.).
Upon reargument, judgments modified, as a matter of discretion in the interest of justice, by reducing the convictions to two counts of robbery in the second degree, and sentences vacated. As so modified, judgments affirmed, and matter remitted to the Supreme Court, Richmond County, for resentencing. The order of this court dated April 2, 1984 is amended accordingly.
As we stated in our decision of April 2, 1984, the defendant's failure to withdraw his pleas prior to sentence did not preserve for appellate review the defendant's argument that he did not properly admit to all the elements of the crimes of robbery in the first degree (see People v. Harris, supra; People v Pellegrino, 60 N.Y.2d 636; People v. Pascale, 48 N.Y.2d 997; People v. Vicks, 91 A.D.2d 1052; People v. Nasti, 90 A.D.2d 507).
However, the People have indicated their consent to modification of the defendant's convictions from robbery in the first degree to robbery in the second degree. During the plea colloquy defendant raised a possible affirmative defense to robbery in the first degree. Therefore, the court should have conducted a further inquiry (see People v. Serrano, 15 N.Y.2d 304; People v. Hassan, 79 A.D.2d 713; People v. Royster, 91 A.D.2d 1074). Since the People have indicated their consent to modification of the defendant's convictions to robbery in the second degree, such modification is proper under the circumstances (see People v Royster, supra; People v. Waddell, 66 A.D.2d 807). Titone, J.P., Rubin, Boyers and Eiber, JJ., concur.