The People of the State of New York, Respondent, v. Eugene Royster, True Name Ronald Royster, Appellant

The People of the State of New York, Respondent, v Eugene Royster, True Name Ronald Royster, Appellant. [MAJORITY] — Appeal by defendant from a judgment of the Supreme Court, Kings County (Lodato, J.), rendered August 30,1979, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence. Judgment modified, as a matter of discretion in the interest of justice, by reducing the conviction to one of robbery in the second degree and vacating the sentence. As so modified, judgment affirmed and case remitted to Criminal Term for resentence. Defendant stated in his allocution that the gun used by him and a coparticipant, Faiz Hassan, was unloaded. The court failed to conduct a further inquiry after defendant revealed á potential affirmative defense (see People v Serrano, 15 NY2d 304; Penal Law, § 160.15, subd 4). Under these circumstances, the conviction for robbery in the first degree cannot stand (see People v Hassan, 79 AD2d 713). Modification of defendant’s conviction from robbery in the first degree to robbery in the second degree is proper under the circumstances since the People have indicated their consent to such an arrangement, which defendant has requested (see People v Waddell, 66 AD2d 807; People v Williams, 58 AD 2d 859). We find no merit in defendant’s contention that he was deprived of the effective assistance of counsel. Damiani, J. P., Lazer, Mangano and Thompson, JJ., concur.