Opinion
December 23, 1980
Appeal from the Niagara County Court.
Present — Cardamone, J.P., Simons, Hancock, Jr., Callahan and Moule, JJ.
Judgment unanimously reversed, on the law, and matter remitted to Niagara County Court for further proceedings on the indictment. Memorandum: Defendant was indicted for robbery, first degree, burglary, first degree, and grand larceny, third degree. At the conclusion of plea negotiations, defendant pleaded guilty to robbery, third degree, in full satisfaction of the indictment. Robbery, first degree, and burglary, first degree, are class B violent felonies (Penal Law, § 70.02, subd 1, par [a]). Accordingly, defendant was required to plead, under the statute as it then existed, to a violent felony offense (CPL 220.10, subd 5, par [d]). Robbery, third degree, is not a violent felony offense. The judgment is based on an illegal plea and must be vacated (see Matter of Wadsworth v. Mogavero, 71 A.D.2d 157; People v. Bartley, 60 A.D.2d 283, affd 47 N.Y.2d 965).