Opinion
November 10, 1987
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Dillon, P.J., Callahan, Green, Pine and Lawton, JJ.
Judgment unanimously reversed on the law, plea vacated and defendant remanded to Supreme Court, Erie County, for further proceedings on the indictment. Memorandum: Defendant was charged in each of two indictments with two counts of robbery in the first degree pursuant to Penal Law § 160.15 (3) and (4). He entered a plea of guilty to robbery in the first degree under subdivision (3), used or threatened the immediate use of a dangerous instrument, in satisfaction of one indictment and entered a plea of guilty to robbery in the second degree in satisfaction of the other. He was promised concurrent sentences no more severe than could be imposed for robbery in the second degree. In the factual recitation on both pleas defendant said he had his hand in his pocket, pretended he had a handgun, and verbally threatened to shoot the victim. The People indicated that their proof would be that defendant threatened to shoot and had his hand in his pocket. Actual possession of a dangerous weapon is required under Penal Law § 160.15 (3) (People v. Pena, 50 N.Y.2d 400, 407, rearg denied 51 N.Y.2d 770, cert denied 449 U.S. 1087); thus the court erred in accepting defendant's plea to first degree robbery without making further inquiry to establish its basis (see, People v. Serrano, 15 N.Y.2d 304).
Since the second plea was entered into in reliance upon the first, both are vacated and defendant is remanded for further proceedings on both indictments.